Citation: Luu v. TD Insurance Meloche Monnex, 2023 ONLAT 21-001508/AABS

Licence Appeal Tribunal File Number: 21-001508/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Chon Luu

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Daniela Algieri-Boileau, Counsel

For the Respondent:

Michael Silver, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Chon Luu, the applicant, was involved in an automobile accident on September 21, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to $1,977.05 for chiropractic services proposed by Mackenzie Medical Rehabilitation Centre Inc. (“Mackenzie Medical”) in a treatment plan (“OCF-18”) dated April 26, 2019?

iii. Is the applicant entitled to $1,384.70 for chiropractic services proposed by Mackenzie Medical in an OCF-18 dated June 12, 2019?

iv. Is the applicant entitled to $1,384.70 for physiotherapy services proposed by Mackenzie Medical in an OCF-18 dated June 19, 2019?

v. Is the applicant entitled to $1,384.70 for physiotherapy services proposed by Mackenzie Medical in an OCF-18 dated August 19, 2019?

vi. Is the applicant entitled to $1,417.05 for physiotherapy services proposed by Mackenzie Medical in an OCF-18 dated October 5, 2020?

vii. Is the applicant entitled to $1,417.70 for physiotherapy services proposed by Mackenzie Medical in an OCF-18 dated November 4, 2020?

viii. Is the applicant entitled to $2,010.65 for a Functional Abilities Assessment, proposed by Medex Assessments Inc. in an OCF-18 dated February 19, 2019?

ix. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

x. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG.

ii. As all of the treatment plans in dispute propose treatment outside of the MIG, the applicant is not entitled to these plans, or interest.

iii. The respondent is not liable to pay an award under Regulation 664.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

5An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

The applicant has not established that his physical accident-related impairments warrant removal from the MIG

6The applicant submits that in addition to aggravating his pre-existing physical and psychological impairments, the subject accident also caused a serious eye injury. He contends that during the accident, he hit his face on the steering wheel resulting in blurriness and difficulties seeing in his right eye, which necessitated a lens repair surgery that was performed on November 8, 2018.

7The respondent disputes that the applicant’s eye impairment was caused by the subject accident. It argues that the applicant has not led sufficient evidence relating to this injury, and that it had requested any ophthalmology clinical notes and records relating to this injury and surgery, at the parties’ case conference. The respondent submits that the applicant failed to comply with the Tribunal’s case conference order to produce the ophthalmologist’s records and that as such, the Tribunal should infer that such records do not demonstrate that the lens displacement was caused by the subject accident.

8I agree with the respondent that the applicant has not led sufficient evidence that the lens displacement injury was caused by the subject accident.

9Although I am not specifically prepared to draw an adverse inference, the lack of productions will go to the weight accorded to the applicant’s evidence presented. The applicant had the opportunity to provide reply submissions and could have addressed the production issue raised by the respondent, and clarified why the ophthalmologist’s records were not produced. The applicant has chosen not to provide reply submissions.

10As part of his initial submissions, although the applicant referred to his ophthalmologist Dr. Yan, he did not provide Dr. Yan’s clinical notes and records (“CNRs”), or any applicable reports. Rather, the applicant only provided the CNRs of his family physician, Dr. Nguyen. However, Dr. Nguyen’s CNR entries do not provide significant details on the lens displacement injury or any details relating to the subsequent surgery. Nor has the applicant provided any additional evidence, such as diagnostic imaging or hospital records detailing such impairment or surgery.

11As such, I find that the applicant has not led sufficient evidence to establish that the accident was the cause of his lens displacement impairment.

The applicant has not established a pre-existing condition that would prevent maximal recovery under the MIG

12The applicant submits that he suffered from a number of pre-existing impairments which were exacerbated by the subject accident. With respect to psychological impairments, he contends that he had been treated by Dr. Nguyen for anxiety and depression for years prior to the accident. The applicant further submits that his pre-exiting degenerative disc disease, chronic low-back pain and spinal stenosis also warrant his removal from the MIG.

13I find that although the applicant has led evidence that he had suffered from both psychological and physical impairments prior to the subject accident, he has not met the additional requirement under s. 18(2). Namely, the applicant has not provided sufficient medical evidence from a treating medical practitioner that acknowledges that these pre-existing injuries impacted his ability to achieve maximum medical recovery under the MIG.

14Although I accept that the applicant suffered from anxiety and depression prior to the subject accident, the applicant has not led any evidence to establish that these psychological impairments were exacerbated by the subject accident. The CNRs of Dr. Nguyen indicate that pre-accident, the applicant was prescribed medication for anxiety and depression. This continued in a similar manner post-accident. However, the applicant does not direct me to any evidence that he reported increased psychological symptoms as a result of the accident, or that any treating physician opined that his anxiety or depression affected his ability to recover within MIG limits.

15With respect to his physical impairments, the applicant submits that the accident aggravated his pre-existing back, neck and knee impairments, leading to such severe ongoing pain that he is unable to stand or walk for prolonged periods of time, bend or lift. The applicant contends that due to his accident-related physical impairments, he was forced to stop working and has been receiving long-term disability benefits and CPP disability benefits.

16I agree with the respondent’s submissions that the applicant has not adduced sufficient evidence that his ongoing impairments were caused or exacerbated by the subject accident. To establish the severity of his injuries, the applicant relies in part on the fact that post-accident, he qualified for long-term disability and CPP disability benefits. However, I agree with the respondent that the determination of such benefits does not take into account causation and whether the respective impairments were accident-related. Rather, the pre-accident diagnostic imaging and CNRs of Dr. Nguyen indicate that the applicant’s neck and back impairments pre-dated the accident. In a January 2017 CNR entry, Dr. Nguyen confirmed that an MRI revealed spinal stenosis causing intermittent claudication.

17Further, I do not find the applicant’s submissions that the accident caused his present functional limitations, to be persuasive. The applicant submits a Medical Follow-up Form completed by Dr. Nguyen on December 8, 2018 for short-term disability, as evidence that the accident caused severe physical impairments. In this form, Dr. Nguyen notes that the applicant has functional limitations involving prolonged standing, walking only short distances, no lifting, carrying, bending, pushing or pulling. However, in pre-accident CNR entries dated May 27, 2016 and November 5, 2016, Dr. Nguyen had also noted that the applicant had difficulties with prolonged standing and walking more than 1-2 blocks, due to back and radiating knee/calf pain. Dr. Nguyen had also filled out a modified work form in November 2016, indicating that the applicant could not grip, grasp, push, pull or lift for six months.

18The applicant was referred to a neurologist, Dr. Midroni, to assess his ongoing lower back and leg pain. However, I note that in his reporting letters, Dr. Midroni does not identify the subject accident as a cause or aggravating factor of his present impairments. Rather, Dr. Midroni notes in his February 28, 2019 letter that the applicant’s symptoms have been present for about three years and were gradually getting worse during this time. In his letter dated June 6, 2019, Dr. Midroni notes that the applicant’s history gives a clear story of claudication and that the MRI showed findings of degenerative disc disease potentially compressing his L4 roots at neural foramen.

19Finally, the respondent’s physiatry insurer’s examination assessor Dr. Gwardjan considered the applicant’s pre-existing impairments, but found that his pre-existing spinal stenosis and neck foraminal narrowing would not prevent him from reaching maximum medical recovery under the MIG. Dr. Gwardjan also found that the applicant had reached maximum medical recovery from his soft-tissue accident related injuries.

20Given the foregoing, I find that the applicant has not established that his pre-existing medical conditions warrant removal from the MIG.

21The Applicant sustained a minor injury as defined in the Schedule and is subject to the MIG and the $3,500.00 funding limit on treatment. He is not entitled to the disputed treatment plans, because they propose treatment beyond the MIG funding limit.

Interest and Award

22Pursuant to s. 51 of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided. The disputed treatment plans are not payable because the applicant is subject to the MIG and the plans propose treatment outside of the MIG. The applicant is not entitled to interest as a result.

23Pursuant to s. 10 of Regulation 664, the applicant is only entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit. The applicant is not entitled to an award because none of the withheld benefits were unreasonably withheld or delayed. No award is payable as a result.

ORDER

24The application is dismissed, and I find that:

i. The applicant sustained a minor injury as defined by the Schedule as a result of the accident. He is therefore subject to the $3,500.00 funding limit on treatment.

ii. As the applicant remains within the MIG, and as all of the treatment plans in dispute propose treatment outside of the MIG, he is not entitled to these plans, or interest.

iii. The respondent is not liable to pay an award.