Licence Appeal Tribunal File Number: 20-009917/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:
Kien-Lam Ong
Applicant
and
The Co-operators
Respondent
DECISION
VICE-CHAIR: Jan Dymond
APPEARANCES:
For the Applicant: Jessie V. Tran, Counsel
For the Respondent: Laura Emmett, Counsel
HEARD: In Writing
OVERVIEW
1Kien-Lam Ong, the applicant, was involved in an automobile accident on May 29, 2018 (“MVA”) 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, The Cooperators, 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 predominately 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 rehabilitation benefit for services recommended by the Pain Rehabilitation Clinic, as follows:
a. $1,250.00, for medical services, denied August 28, 2018?
b. $2,000.00, for medical services, denied September 26, 2018?
c. $2,000.00, for medical services, denied November 27, 2018?
d. $2,000.00, for medical services, denied March 19, 2019?
e. $2,350.00 for a psychology assessment, denied August 15, 2019?
f. $2,200.00 for a chronic pain assessment, denied September 6, 2019?
g. $2,870.00 for a social work assessment, denied November 21, 2019?
h. $200.00 for a disability assessment, denied December 19, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3Withdrawn Issues: Issue 2.e and the special award under Regulation 664 as listed in the case conference summary were withdrawn as issues by the applicant in his written submission.
RESULT
4The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
5As the limit of the MIG has been exhausted, there is no entitlement to the benefits at issue.
6No interest is payable.
ANALYSIS
The injuries are predominantly minor and the MIG applies:
7I find that the applicant has not met the onus of proving that his injuries are not predominately minor as defined in s.3 of the Schedule and he is therefore subject to treatment within the $3,500.00 limit in the Minor Injury Guideline ("MIG").
8Section 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 a minor injury. 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.
9Both parties agreed that the applicant has exhausted the limits payable for medical and rehabilitation benefits under the MIG.
10Individuals may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under section 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.
11The applicant was involved in the index MVA on May 29, 2018 in which his vehicle was “t-boned”. The airbags did not deploy. The applicant did not seek immediate medical attention.
12The applicant first reported his MVA to a medical practitioner on June 14, 2018 in the course of what appears to have been an annual checkup with his physiatrist, Dr. Joseph Wong. He complained of lower back pain and insomnia.
13The applicant subsequently visited a family physician, Dr. Toan Di Nhan, on June 19, 2018. Dr. Nhan’s notes the applicant complained of low back pain for which he prescribed Baclofen and Tylenol #2. In a subsequent visit, August 7, 2018, the applicant also complained of neck pain.
14A Disability Certificate (OCF-3) completed by Dr. San Bui, chiropractor, on November 2, 2018, reported the applicant’s injuries as sprain and strain of the lumbar spine; sprain and strain involving (fibular)(fibial) collateral ligament of the knee; sprain and strain of the ankle, and headache. Dr. Bui estimated the duration of the applicant’s disability with respect to activities of daily living and housekeeping activities to be nine to twelve weeks.
15The respondent determined that the applicant’s accident-related physical injuries, as documented by Dr. Wong, Dr. Nhan, and Dr. Bui, fall within the MIG.
16The applicant argues that he is not subject to the $3,500.00 MIG limit on benefits on three grounds:
i. he had pre-existing medical issues which were exacerbated by the accident;
ii. he suffers from accident-related psychological impairment; and
iii. he suffers chronic pain to his neck, knees and back.
Pre-existing physical conditions:
17The applicant has not established that his pre-existing medical conditions preclude recovery from his accident-related injuries if kept within the confines of the MIG.
18It is the applicant’s position that the existence of pre-existing conditions means that his condition cannot be effectively treated if he is confined to the MIG limitations. The respondent submits that the applicant has not provided any compelling evidence that he had a diagnosed pre-existing medical condition that would prevent him from achieving maximal recovery within the MIG.
19Evidence of a pre-existing condition alone is not sufficient to remove an applicant from the MIG. There must be evidence to show that the pre-existing conditions prevent the applicant from achieving maximum recovery if confined to the MIG.
20There is no question that the applicant suffered from pre-existing injuries. His pre-accident history is well-documented in test results and the clinical notes and records (“CNRs”) of his physiatrist, Dr. Joseph S.W. Wong, spanning the period 2009 to present, as well as referral notes from his family physician Dr. Hen Thoi Vo. These conditions include:
i. Ongoing low back pain. MRIs conducted in 2005 and 2009 diagnosed a wedge compression fracture of the L3 vertebral body; L3-L4 disc bulge (left side) with possible nerve compression; L4-L5 disc bulge with spinal canal stenosis and possible compression of the exiting L4 nerve root.
ii. Numbness in arms and legs first reported to Dr. Wong in July 2015 for which the applicant was referred to a neurosurgeon (but for which he declined surgery).
iii. Bi-lateral osteo-arthritis related knee pain for which the applicant first sought medical attention for the left knee on February 23, 2017, according to the clinical notes and records of Dr. Wong. Treatment recommendation was limited to an injection of Kanalog (sic) a corticosteroid. It progressed to include both knees by 2017. The applicant continues to receive injections on a yearly basis.
21The applicant relies primarily on the clinical notes and records of Dr. Wong to support his position that the injuries sustained in the May 29, 2018 accident would prevent him from achieving maximal recovery if not removed from the MIG; however, I do not find that Dr. Wong’s records support the applicant’s position. The key document the applicant relies upon is dated September 5, 2019 and reports on the patient’s condition after an MVA that occurred in April 2019 (specific date not provided).
22Dr. Wong’s clinical notes and records of September 5, 2019 report that: “the patient complained of pain located in the neck, back and both knees after a motor vehicle accident in April 2019 … He was the driver of a vehicle that was rear ended by another vehicle. He had no fractures, but noticed pain involving the lower back has become much worse after the motor vehicle accident.”
23Dr. Wong’s report opines that the applicant’s pre-existing arthritis of the spine and knees are degenerative but were aggravated by this new motor vehicle accident [emphasis added]. Dr. Wong’s recommendations for treatment are consistent with the treatment regimen he had been prescribing for the applicant since 2014, including prescriptions for pain, inflammation, and physiotherapy.
24Dr. Wong’s notes of September 2019 do not opine on the applicant’s prospects for maximal recovery. They state only in reference to the applicant’s back injury that “this is a pre-existing condition that might make it more difficult to heal.” His notes refer to “the accident” but do not specify which accident. Although not stated, I believe it is reasonable to assume that by “new motor vehicle accident”, Dr. Wong is referring to the April 2019 MVA, not the 2018 event.
25The applicant visited Dr. Wong again in the spring of 2020, complaining of neck pain and pain radiating down his right arm. An MRI revealed multiple degenerative changes and questionable cord edema with myelomalacia disability. Dr. Wong opined that the current pain was due to degenerative changes, but also from the motor vehicle accident. Dr. Wong does not specify which accident. He again recommends that the patient be seen by a neurosurgeon.
26For all of the above reasons, I find the applicant has not provided compelling evidence that the index accident exacerbated his pre-existing injuries to the point of preventing maximal recovery under the Guideline, which is the requirement for removal under this ground.
Psychological Issues:
27I find that the applicant has not met his burden of showing that he has accident-related psychological conditions that would remove him from the MIG.
28The applicant argues that he suffers from psychological issues post-accident that qualify him for removal from the MIG. The respondent submits that any psychological complaints reported by the applicant are not sufficient to remove the applicant from the MIG.
29The applicant relies on Dr. Wong’s pre-accident reports of September 6, 2017 and May 22, 2018, and his post-accident reports of June 14, 2018 and September 6, 2018, in which Dr. Wong noted the applicant reported that he was suffering from insomnia and stress. Dr. Wong observed that the patient appeared anxious. There is no indication in Dr. Wong’s reports that the applicant suffers from accident-related psychological issues. Pre- and post-accident, Dr. Wong prescribed Paxil for anxiety and Ativan for insomnia. Notably, Dr. Wong does not make a clinical diagnosis of a psychological condition, nor does it appear that he referred the applicant for further psychological evaluation.
30The applicant also suffers from COPD. In a visit to his respirologist, Dr. Eva Mate, on January 23, 2019, the applicant acknowledged that his lack of sleep was because he is watching television late into the night. Dr. Mate recommended changing his sleep hygiene and observed that a sleep study might be undertaken if there was no improvement because the coexistence of sleep apnea in the setting of COPD is very prevalent. This would suggest the possibility of an organic rather than psychological basis for the applicant’s insomnia.
31I do not find that the applicant’s self-reported insomnia and psychological stress, or Dr. Wong’s finding of anxiety, to be sufficient evidence of accident-related psychological impairment to support removal from the MIG.
32The applicant also relies on assessments conducted by Ms. Amber Williams, social worker, and Dr. Hein Ta, anesthesiologist. Dr. Ta conducted an Independent Pain Medicine Assessment on November 21 and 24, 2019, approximately eighteen months after the index accident and seven to eight months following the subsequent April 2019 accident. Ms. Williams conducted a Social Service Work Assessment on December 11, 2019. Both Ms. Williams and Dr. Ta anchor their findings to the May 2018 MVA and, oddly, make no reference to the April 2019 accident.
33In order for the applicant to be removed from the MIG, there must be a causal link between the subject accident and the psychological condition in question. The absence of any reference to the April 2019 MVA undermines the reliability of any causal statements contained in Ms. Williams and Dr. Ta’s assessments. I find that their failure to conduct a thorough analysis of the causal connection between the May 2018 MVA, which would include a consideration of all events which might be factors in his ongoing symptoms, and the applicant’s psychological impairments, makes their findings on cause to be unreliable. Accordingly, I assign no weight to them.
34For all of the above reasons, I find that the applicant has not met his burden of showing that the 2018 accident has caused psychological injury warranting removal from the MIG.
Chronic Pain:
35I find that the applicant has not met his burden of showing that he has an accident-related chronic pain condition that would remove him from the MIG.
36The applicant submits that he should be removed from the MIG because of chronic pain. The respondent takes the position that the applicant has not demonstrated that he has accident-related chronic pain that would enable removal from the MIG.
37Ongoing pain does not automatically take a person out of the MIG. It is well settled that to be removed from the Guideline based on chronic pain, there must be a diagnosis of chronic pain syndrome, or the pain must be of a continued severity resulting in functional impairment.
38The applicant relies on the above assessments conducted by Dr. Ta and Ms. Williams as well as Dr. Bui’s Functional Abilities Evaluation Report, conducted on August 2, 2019, which also anchors its findings to the May 2018 MVA and fails to make any reference to the April 2019 accident.
39In order for the applicant to be removed from the MIG, there must be a causal link between the subject accident and the finding of chronic pain. The absence of any reference to the April 2019 MVA in the reports relied upon by the applicant undermines the reliability of these assessments with respect to causation. I find that Dr. Bui, Dr. Tan, and Ms. Williams’ failure to conduct a thorough analysis of the causal connection between the May 2018 MVA, which would include a consideration of all events which might be factors in his ongoing symptoms, and their findings of chronic pain, makes their findings on cause to be unreliable. I, therefore, assign no weight to them.
40For all of the above reasons, I find that the applicant has not met his burden of showing that the 2018 accident has caused a chronic pain condition that would remove him from the MIG.
Benefits Claimed
41Since I have found that the applicant’s claims are subject to the treatment within the $3,500.00 limit of the MIG, and since that limit has already been exhausted, the applicant is not entitled to the benefits claimed.
Interest
42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest is payable.
ORDER
43I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline.
ii. As the limits of the Minor Injury Guideline have been exhausted, there is no entitlement to the benefits at issue.
iii. No interest is payable.
Released: September 26, 2023
Jan Dymond
Vice-Chair