Dong v. Economical Insurance Company, 2023 CanLII 65799

Licence Appeal Tribunal

Citation: Dong v. Economical Insurance Company, 2023 ONLAT 21-000022/AABS

Licence Appeal Tribunal File Number: 21-000022/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:

Thi Huong Dong Applicant

and

Economical Insurance Company Respondent

DECISION

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Thi Huong Dong, Applicant Mr. Ryan Jeffries, Counsel

For the Respondent: Economical Insurance Company Hermina Nuric, Counsel

HEARD: By way of written submissions

OVERVIEW

1Thi Huong Dong, the applicant, was involved in an automobile accident on November 26, 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, Insurer, 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 in the Minor Injury Guideline (MIG)?

ii. Is the applicant entitled to a cost of examination expense in the amount of $2,147.00 for an attendant care needs assessment recommended by Medex Assessments Inc. proposed in a treatment plan/OCF-18 dated on January 4, 2019?

iii. Is the applicant entitled to a cost of examination expense in the amount of $2260.00 for a psychological assessment recommended by Medex Assessments Inc. proposed in a treatment plan/OCF-18 dated on December 20, 2018?

iv. Is the applicant entitled to a cost of examination expense in the amount of $2,260.00 for a driver reintegration assessment recommended by Medex Assessments Inc. proposed in a treatment plan/OCF-18 dated on March 8, 2019?

v. Is the applicant entitled to a medical benefit in the amount if $1,688.00 (less $1,576.33 approved) for physiotherapy services, recommended by Physical Therapy One Woodbridge submitted in a treatment plan/OCF-18 dated on September 19, 2019?

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

RESULT

3I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG ad that the MIG has been exhausted. Having determined that the applicant sustained minor injuries that are treatable within the MIG and that the MIG has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.

4The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.

5Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

6The application is dismissed.

ANALYSIS

7The Minor Injury Guideline (MIG) establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule which includes sprains, strains, whiplash associated disorder, contusion, laceration or sublaxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG, and under section 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

8If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

9Section 18(2) states that the $3,500 limit does not apply if the insured person provides compelling evidence… the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if he is subject to the $3,500 limit.

10In the event that the applicant’s injuries fall within the definition of minor injuries, the applicant can be removed from the MIG in accordance with section 18(2) of the Schedule. The applicant must meet all three of the following requirements in order to be removed from the MIG under this section:

a. The insured person has a pre-existing medical condition;

b. The pre-existing medical condition was documented by a health practitioner before the accident; and

c. The insured person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the insured person is subject to the $3500.00 limit under the MIG.

11The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that their injuries are not minor or they have a pre-existing condition that would prevent maximal recovery within the MIG.

12The applicant does not advance the argument, nor provide compelling medical evidence, of a pre-existing medical condition that would prevent her achieving maximal medical recovery if limited to the MIG. The applicant submits that post-accident, she experiences ongoing symptoms of headaches, right shoulder pain, and vehicular anxiety, in addition to symptoms of psychological impairments including anxiety, over-cautiousness, and nervousness as a passenger or driver of a vehicle.

13The respondent submits that the applicant has not submitted compelling medical evidence of a pre-existing condition which will prevent maximal recovery if the applicant is subject to the MIG $3,500.00 funding limit. The respondent references the single entry before the accident, in the clinical notes and records (“CNRs”) of the family physician, Dr. Lai Lily Wei, on January 13, 2018, where the applicant is prescribed cough medication for the purpose of addressing cold symptoms. The decoded OHIP summary reveals records from laboratory requisitions, and health issues which are clearly not accident-related. I find that the applicant has not met her burden of demonstrating that a pre-existing medical condition exists which would prevent the applicant from achieving maximal medical recovery if subject to the $3,500.00 funding limit of the MIG for the purpose of medical and rehabilitation benefits.

Evidence of Physical Injuries

14The applicant attended an appointment with her family physician Dr. Lai Lily Wei on November 27, 2018, reporting the post-accident effects, including generalized pain, back pain and headaches. Dr. Lai Lily Wei examined the applicant observing no bruising, no pain on palpation of the cervical, thoracic, or lumbar spine and normal range of movement. Dr. Lai Lily Wei diagnosed a whiplash injury and a risk of fracture of the left knee right tibia and fibula. The CNR’s of Dr. Lai Lily Wei describe that the applicant would start physiotherapy for the neck/ lumbar strain post-accident. The applicant was prescribed a nonsteroidal anti-inflammatory medication called Vimovo. Dr. Lai Wei ordered x-rays of the right thumb, left knee, right fibula and tibia which on result were normal and negative for fractures. I agree with the respondent’s submission that the ultrasound showing mild osteoarthritis in the applicant’s left knee is not causally linked to the accident.

15The applicant returned to Dr. Lai Lily Wei on December 19, 2018, with complaints of headaches post-accident. The applicant is noted as reporting returning to work two days after the accident, with headaches upon prolonged use of computers. The applicant did not return to her family doctor, Dr. Lai Lily Wei, until seven months later on July 23, 3019, for a general health check-up where she mentions right shoulder pain following the accident, which Dr. Lily Wei describes in the CNR’s as likely a rotator cuff tendonitis. Dr. Lai Lily Wei orders a right shoulder x-ray which offers normal findings and shows no evidence of arthritis, injury or rotator cuff degeneration. An ultrasound of the applicant’s right shoulder results in a positive finding for tendinopathy without a tear nor effusion.

16The applicant submits that the positive finding for tendinopathy is an injury which falls outside the minor injury definition, entitling her to treatment outside the MIG and the $3500.00 funding limit. The respondent refers to the decision of the Tribunal in D.R. v. Guarantee Company of North America, 2020 CanLII 30405 (ON LAT), where the adjudicator determined that a rotator cuff tendinopathy such as that of the applicant, is an injury which falls within the Minor Injury Guideline (MIG). As described, the MIG defines a sprain as an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear. I agree with the respondent that a rotator cuff tendinopathy without a complete tear is an injury which falls within the Minor Injury Guideline. The ultrasound of the applicant’s shoulder shows a positive finding for tendinopathy characterized as mild, without any tear nor any joint effusion. Considering there is no tear nor joint effusion, I find the tendinopathy or rotator cuff tendonitis is an injury which falls within the minor injury guideline.

17On May 22, 2020, the applicant returned to Dr. Lai Lily Wei, requesting a letter to submit to her insurance company to recommence chiropractic therapy, following the tendonitis, appearing on ultrasound. The applicant described that she did not undergo chiropractic therapy during the pandemic and instead availed herself of home exercises to address any accident-related symptoms. The CNR’s state that the applicant has not been historically taken pain medication which is described as the applicant’s preference. Dr. Lai Lily Wei recommends home exercises to address any accident-related symptoms. The applicant did not return to his family doctor until May 12, 14, and 25, 2021, and on those occasions the CNR’s do not include any mention of the accident or any issues with accident-related pain or discomfort.

18I have found that the applicant’s physical injuries as a result of the accident fall under the minor injury guideline definition and are subject to the MIG and the $3500.00 funding limit on treatment.

Evidence of Chronic Pain

19The respondent submits that there is no persuasive evidence that the right shoulder pain persisted beyond the July 23, 2019, consultation Dr. Lai Lily Wei where Dr. Lai Lily Wei recommends physiotherapy and noted that in the event that the applicant’s symptoms persisted, she might have steroid injections. The applicant did not return to her family physician Dr. Lai Lily Wei to pursue the issue of alleviating any right shoulder pain with steroid injections after the consultation on July 23, 2019. The respondent submits that there is no evidence of the pain persisting, and although the applicant has not advanced the argument that the right shoulder pain amounts to chronic pain or chronic pain syndrome, there is no evidence of a chronic pain diagnosis by a qualified health care professional in the CNR’s.

20The respondent submits that the applicant has failed to establish that she experiences chronic pain, which I agree with. Chronic pain can not be assumed to be the case solely based on the length of time that has elapsed since the injuries were sustained or the number of times the applicant sought treatment for accident-related symptoms. Secondly, it is well-established that in order to be removed from the MIG as a result of chronic pain, an applicant must show that they have been diagnosed with chronic pain syndrome or demonstrate that her chronic pain has resulted in functional impairment. The applicant has not been diagnosed with chronic pain syndrome and she returned to work within a few days of the accident, working until April 10, 2020, when her record of employment from her employer confirms that she consistently worked as an EMS coordinator and that she ceased working on April 10, 2020, by reason of a “shortage of work/end of contract or season.” Thirdly, the family physician Dr. Lai Lily Wei did not refer the applicant to a chronic pain specialist nor prescribe pain medication for accident-related pain. Lastly, the applicant did not establish that she satisfied any of the criteria under the American Medical Association Guides (AMA Guides) that the Tribunal has adopted as an interpretative tool for evaluating chronic pain claims. I am, therefore, not persuaded that the applicant is a person experiencing a functional impairment as a result of accident-related chronic pain.

21There is no evidence showing the applicant is impaired by ongoing pain. As noted by the respondent, since the accident, the applicant returned to work within a few days; she is independent in her self-care and activities of daily living caring for her children. The applicant shows no overdependence on healthcare professionals and she is not taking prescription pain medication.

22Upon a review of the evidence and submissions, I find that that the applicant has sustained predominantly minor injuries as defined in the Schedule which are subject to the $3,500.00 funding limit provided in section 18(1).

Psychological Evidence

23I find that the psychological injuries claimed by the applicant fail to meet the level required to remove her from the MIG. She has not met her burden to establish with compelling medical evidence that she experiences psychological injuries as a result of the accident which remove her from the MIG.

24The applicant claims to suffer from anxiety, over-cautiousness, nervousness as a driver or passenger of a motor vehicle and other psychological impairments, which she submits are psychological injuries not included in the MIG and, as a result, she should not be subject to the MIG and the $3,500.00 funding limit. The respondent submits that the applicant has made no psychological complaints to her family physician Dr. Lai Lily Wei.

25I find no compelling evidence demonstrating that the applicant suffers from psychological injuries as a result of the accident. As noted by the respondent, the CNR’s of the family physician Dr. Lai Lily Wei, are absent any complaints of a psychological nature. Likewise, the CNR’s make no reference to any symptoms of a psychological injury or injuries such as driving anxiety or avoidance behaviour.

26The applicant’s claims of psychological injuries are contradicted by the IE Psychiatric Assessment by Dr. Joan Nagy, dated February 26, 2019. Dr. Nagy opines that there is minimal medical documentation with respect to psychological sequelae of the accident, including minimal documentation of driving anxiety, sleep disturbance or mood changes. Dr. Nagy assessed the applicant in person and found that the applicant met the criteria for acute stress disorder which diagnosis could only be used for one month following the trauma of the accident. The accident occurred on November 26, 2018, three months prior to the assessment. Dr. Nagy opined that the applicant’s residual symptoms were not severe enough to meet the criteria for posttraumatic stress disorder.

27Dr. Nagy found that the prognosis was good for the applicant and that at the time of psychiatric examination, the applicant had made considerable progress despite not receiving psychological treatment. Dr. Nagy opined that there are no limitations or restrictions that were delaying or preventing the applicant from making a full recovery within the Minor Injury Guideline for the purpose of the psychiatric assessment. At the time of the assessment in February 2019, the applicant stated that she had returned to her employment within a few days of the accident. The applicant had also resumed driving.

28Considering the evidence, and on a balance of probabilities, I find no compelling medical evidence of an impairment due to psychological injuries as claimed by the applicant. Likewise, I find no compelling evidence she requires psychological intervention.

29Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required because they propose treatment outside the MIG and the $3,500.00 funding limit.

30As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.

CONCLUSION AND ORDER

31I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG and that the MIG limit has been exhausted.

32The applicant is not entitled to any treatment plans in dispute, as the MIG limit have been exhausted.

33Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

The application is dismissed.