Licence Appeal Tribunal File Number: 20-012141/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:
Haiyun Chen
Applicant
and
Safety Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Miryam Gorelashvili, Counsel
For the Respondent:
Crystal Schulz, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Haiyun Chen, the Applicant, was involved in an automobile accident on June 4, 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 Safety Insurance Group, the Respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issues in dispute are:
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?
Is the Applicant entitled to a medical benefit in the amount of $726.04 for occupational therapy services recommended by Galit Liffshiz & Associates in a treatment and assessment plan dated August 29, 2018?
Is the Applicant entitled to a medical benefit in the amount of $2,482.50 for psychological services recommended by York Region Psychological Services in a treatment and assessment plan dated September 10, 2018?
Is the Applicant entitled to a medical benefit in the amount of $2,240.00 for massage therapy services recommended by Qian Carl in a treatment and assessment plan dated March 20, 2019?
Is the Applicant entitled to a medical benefit in the amount of $4,300.62 for occupational therapy services recommended by Galit Liffshiz & Associates in a treatment and assessment plan dated March 20, 2019?
Is the Applicant entitled to a medical benefit in the amount of $4,200.00 for physiotherapy services recommended by Galit Liffshiz & Associates in a treatment and assessment plan dated March 20, 2019?
Is the Applicant entitled to a medical benefit in the amount of $4,487.29 for occupational therapy services recommended by Vitality Assessments Group in a treatment and assessment plan dated November 11, 2020?
Is the Applicant entitled to a medical benefit in the amount of $4,052.53 for psychological services recommended by York Region Psychological Services in a treatment and assessment plan dated January 20, 2020?
Is the Applicant entitled to a medical benefit in the amount of $4,040.00 for life skills training recommended by Jenny Zhou in a treatment and assessment plan dated March 20, 2019?
Is the Applicant entitled to a medical benefit in the amount of $2,482.50 for psychological services recommended by York Region Psychological Services in a treatment and assessment plan dated
Is the Applicant entitled to the cost of examination of $2,400.00 for an attendant care assessment recommended by Galit Liffshiz & Associates in a treatment and assessment plan dated August 24, 2018?
Is the Applicant entitled to interest on the overdue payment of benefits?
Is the Respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?
RESULT
3The Applicant sustained a minor injury as a result of the accident. The Applicant is not entitled to the treatment and assessment plans in dispute because they propose treatment outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.
4No benefits are owed therefore no interest or award is payable.
5The Application is dismissed.
PROCEDURAL ISSUES
6In her submissions, the Applicant relies on a musculoskeletal assessment report prepared by Alyssa Kadowaki, kinesiologist, dated August 8, 2018, and an OT functional assessment and attendant care assessment report from Lisa Hung dated January 9, 2019. The Respondent requests that the reports be excluded from the evidence because they were only provided to the Respondent on August 18, 2022 as part of the disclosure obligations prior to the hearing, and therefore their IE assessors were not able to consider the reports. The Respondent also points out that a law clerk from the Applicant's lawyer's office acted as an interpreter during Ms. Kadowaki's assessment, so the accuracy of the translation is unknown.
7The Applicant submits that the Respondent requested that reports be provided by mail, and that the reports were mailed to the Respondent around the time they were completed, however there is no evidence to support this. The evidence shows the Respondent did not request that all documents be provided by mail, they had only requested a hard copy of an illegible hospital receipt attached to an OCF-6. There is no indication that the Respondent asked the Applicant and assessors to submit reports by mail. Further, the assessors never invoiced the Respondent for the reports. If they had, the Respondent would have been aware of the existence of the reports and likely would have requested copies.
8I decline to exclude the reports, given that the Applicant did not run afoul of any order from the Tribunal. However, I do give them less weight given the prejudice to the Respondent by not having the documents contemporaneously to the time of the impairments and the insurer's examinations.
ANALYSIS
The Minor Injury Guideline
9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in s. 3(1) of the Schedule as, "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."
10Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An Applicant may receive funding for treatment beyond the $3,500.00 limit if they can provide evidence of an injury that is not included in the minor injury definition.
11It is the Applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities See: Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct).
12The Applicant submits that she sustained non-minor physical and psychological injuries as a result of the accident, both of which are not included in the definition of a minor injury. The Respondent submits that she has not met the burden of proving that the accident caused injuries that fall outside of the scope of the MIG. I agree with the Respondent for the following reasons.
Physical Impairment
13While the Applicant initially indicates that she had both physical and psychological impairments that did not fall within the MIG, her submissions do not address how or why physical impairments should remove her from the MIG. The evidence does not support that the Applicant sustained more than a minor physical injury.
14The Applicant was visiting Canada as part of a ten-day tour when the motorcoach she was riding in left the highway and struck a rocky embankment.
15The Applicant was ambulatory on scene. She was taken to hospital and diagnosed with a rib contusion. X-rays were negative for fractures and she was discharged with a prescription for Tylenol #3. She was seen a couple days later for hematuria at another hospital. The Applicant reported that she was not taking the Tylenol #3 and that her pain was improving. She was reassured that there were no significant concerns and discharged without further investigation or treatment. A few days later, the Applicant returned to her home in China.
16A disability certificate was completed by Coriander Champion, occupational therapist, dated August 13, 2018. The injuries identified on the disability certificate include: contusion of thorax - unspecified hematuria; reaction to severe stress, unspecified - depressive episode; nervousness - malaise and fatigue; headache; state of emotional shock and stress: unhappiness. The psychological diagnoses are beyond the scope of practice for an occupational therapist, and the physical injuries fall within the definition of a minor injury.
17An intake assessment with Ms. Champion was completed with the Applicant on July 4, 2018 by video, with a law clerk from the Applicant's lawyer's office acting as interpreter, as the Applicant had returned home to China. The Applicant reported pain in her right ribs, numbness in her right hand, and difficulty sleeping due to pain.
18The kinesiology musculoskeletal assessment dated August 9, 2018, was completed by Ms. Kadowaki, over video with the law clerk interpreting. Ms. Kadowaki observed mild postural dysfunction, gait abnormalities, and mild dysfunctional movement patterns. She diagnosed soft tissue injures and made recommendations for various assessments and treatment.
19The Applicant's reported impairments are significantly different according to the occupational therapy and attendant care assessment report by Ms. Hung, dated January 9, 2019. It indicates that the Applicant sustained a contusion to her thorax and experienced an episode of hematuria, and since then had developed other complications including constant pain in her right chest wall, back, left hip, right upper arm, dizziness, ringing/decreased hearing in her right ear, sensitivity to noise and light, reduced vision, constant tiredness, weakness, emotional problems, cognitive problems and sleep problems. She also reported abdominal pain, intermittent shortness of breath, and occasional numbness in her left hand.
20There are no clinical notes and records from any family physician or other healthcare provider in China. The Applicant reported to assessors that she was under the care of a pain specialist at a local hospital, used traditional Chinese medicine, applied topical creams for pain and took medication for sleep, and attended a community clinic once a month for pain management. While I appreciate that the availability of such records may not be the same in China, it remains the Applicant's burden to prove that she sustained more than a minor injury. The Applicant has not even submitted an OCF-6 to claim any of these expenses.
21Paper review reports prepared by Dr. Khaled (dated October 17, 2018, June 5, 2019, and July 5, 2019) indicate that the Applicant sustained uncomplicated soft tissue injuries.
22Dr. Stewart, general practitioner, evaluated the Applicant by video and provided a report dated February 2, 2021. The Applicant reported that she did not initially have any neck or back pain, her initial complaints were localized to the left sided chest, left knee and left arm. Dr. Stewart noted that the medical records indicated that the right side was the initial area of complaint, but that perhaps she had misremembered because she reported that her extremity complaints had resolved. Her current complaints included intermittent headaches, infrequent left sided chest pain (when asked to rate the severity, she said not that much), and generalized body aches with bad weather and in the evenings. Dr. Stewart concluded than the Applicant sustained uncomplicated soft tissue strain and contusion injuries to her right side, specifically chest wall contusion and contusions and/or sprains and strains to her right arm and leg.
23I find the Applicant has not met her burden to prove that she sustained a physical impairment that is not captured by the definition of a minor injury.
Psychological Impairment
24I find that the Applicant has not demonstrated that she sustained psychological injuries as a result of the subject accident.
25I prefer the insurer's examination (IE) report prepared by Dr. Karp, dated May 30, 2019. The examination was conducted with a Mandarin-speaking interpreter. When asked if she felt it necessary to see a mental health professional, the Applicant told Dr. Karp that she didn't have a psychological condition, that "in China psychologists only treat crazy people and I'm not crazy. I just feel a bit down". The Applicant described some psychological and cognitive sequelae, such as disturbed sleep, irritability, low energy, anxiety, and problems with concentration and memory. However, there were inconsistencies in endorsements on testing, her BBHI-2 profile reflected a significant response bias, and the PAI results were deemed invalid. Given the degree of inconsistency and the Applicant's tendency to magnify her symptoms, Dr. Karp determined that it was not possible to determine the nature of severity of any psychological symptoms.
26The Applicant relies on a pre-screen and the psychological assessment report prepared by Dr. Rockman, dated January 20, 2020. The interview was conducted in Mandarin and the questionnaires were translated. Dr. Rockman administered the Davidson Trauma Scale, SA-45, and Pain Catastrophizing Scale. Dr. Rockman diagnosed major depressive disorder, post traumatic stress disorder, and somatic symptom disorder with predominant pain. Dr. Rockman did not complete any validity testing, despite noting that administering psychometric measures with the help of an interpreter reflected non-standard administration, and that language and/or cultural factors may have impacted her performance on the testing. Dr. Rockman noted that issues of validity were not felt to have impacted the assessment beyond reasonable parameters, despite some tendency to over-endorse symptoms.
27After having reviewed Dr. Rockman's report, Dr. Karp noted in a paper review report dated February 12, 2020 that administering validity scales was standard practice – regardless of any cultural overlay. While Dr. Rockman acknowledged the Applicant's tendency to over report symptoms, she did not assess for symptom validity, but rather speculated that the Applicant was likely feeling overwhelmed by her symptoms, prompting her to respond to questions in a more extreme manner.
28I find that that where there are issues of symptom magnification and inconsistent reporting, the report including validity testing is more reliable and persuasive. Therefore, I prefer the conclusions of Dr. Karp.
29The Applicant has not satisfied her burden to prove she sustained a psychological impairment as a result of the accident.
Disputed Treatment and Assessment Plans
30The Applicant is not entitled to the treatment and assessment plans in dispute because they propose treatment outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.
Interest and Award
31Given that there are no benefits owed, or payments outstanding, the Applicant is not entitled to interest or an award under s. 10 of O. Reg. 664.
ORDER
32The Applicant sustained a minor injury as a result of the accident. The Applicant is not entitled to the treatment and assessment plans in dispute because they propose treatment outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.
33No benefits are owed therefore no interest or award is payable.
34The Application is dismissed.
Released: August 4, 2023
Kate Grieves
Adjudicator