Licence Appeal Tribunal File Number: 20-015170/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:
Kyung Lee
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Jae H. Cho, Counsel
For the Respondent: Ryland MacDonald, Counsel
HEARD: By way of written submissions
OVERVIEW
1Kyung Lee, (“the Applicant”), was involved in an automobile accident on June 6, 2018, and sought benefits from Sonnet Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016), (“the Schedule”). The Applicant was denied certain benefits by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute to be decided in this hearing are:
Is the Applicant entitled to non-earner benefits, (“NEBs”), in the amount of $185.00 per week for the period from January 6, 2019 to June 6, 2020?
Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule, and subject to the Minor Injury Guideline, (“the MIG”), and the $3,500.00 funding limit on medical and rehabilitation benefits?
Is the Applicant entitled to a medical benefit in the amount of $1,295.77, less $1,116.15 approved by the Respondent, for physiotherapy recommended in a treatment plan dated December 17, 2018?
Is the Applicant entitled to a medical benefit in the amount of $1,295.77 for physiotherapy recommended in a treatment plan dated March 28, 2019?
Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
3I find that the Applicant has not met her onus to demonstrate that she is entitled to the benefits claimed, nor interest.
BACKGROUND
4The Applicant was the driver of a vehicle which was struck by another vehicle at a suburban intersection. Paramedics attended at the scene of the accident and transported the Applicant to the hospital where she was examined. X-rays performed at the hospital showed no fracture. X-rays taken later suggested that the Applicant may have sustained a finger fracture of her right hand as a result of the accident. However, a finger fracture was ruled out following x-rays on June 29, 2018.
5The Applicant claims entitlement to NEBs and treatment beyond the MIG funding limit of $3,500.00. She submits that she is a patient who requires more time and treatment to recovery and that her accident-related injuries cause her to suffer a complete inability to carry on a normal life.
6The Respondent contends that the Applicant failed to apply her evidence to the law. It submits that she failed to address the legal basis for her claims to the benefits in dispute and submits that it should not be forced to respond to legal arguments that have not been submitted or pursued by the Applicant.
7For the most part, I agree with the Respondent and find that the Applicant has not met her onus to demonstrate that she is entitled to the benefits claimed.
Non-Earner Benefits (“NEBs”)
8I find that the Applicant is not entitled to NEBs as claimed.
9Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (“Heath”), she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.
10I am unable to determine the Applicant’s pre-accident activities and consider whether she is prevented from substantially engaging in those activities in order to satisfy the Heath test. The Applicant submits that, prior to the accident, she was physically and socially active in the community, participated in bible studies and church functions such as choir, and visited her grandchildren. She further submits that she did all the indoor housekeeping duties and meal preparation for her home and about half of the outdoor chores. She submits that she no longer participates in leisure activities, no longer does any housekeeping or meal preparation, only sees her grandchildren when they visit her, and requires assistance from her husband to perform her personal care tasks. However, the Applicant provided no documents which pre-date the accident which would permit me to determine her pre-accident activities and make the required comparison to her post-accident ability to engage in her activities.
11The Applicant provided no documents that demonstrate that she suffers an impairment as a result of the accident. The disability certificate by J. Kim, physiotherapist, dated June 16, 2018, notes that the Applicant suffers a complete inability to carry on a normal life due to accident-related injuries – all of which are soft-tissue injuries. The expected period of disability is 9-12 weeks. The disability certificate includes no record of any objective testing conducted and no clinical notes and records from physiotherapist Kim’s clinic were provided to corroborate the findings in the disability certificate. The disability certificate by Dr. S. D. Choe, family physician, dated September 30, 2018, states that the Applicant meets the test for NEBs for more than 12 weeks due to issues such as “secondary depression,” “chronic pain syndrome,” and a possible right-hand fracture. Yet, Dr. Choe’s clinical notes and records, (“CNRs”), were not provided for this hearing, and the disability certificate includes no record of any objective testing conducted or what served as the basis for the diagnosis.
12The referral report of Dr. K. Prutis, physician, dated January 31, 2019, is uncompelling evidence demonstrating that the Applicant suffers a complete inability to carry on a normal life. The Applicant was referred by Dr. Choe to Dr. Prutis to address her neck, back, and right-hand pain. Dr. Prutis assessed the Applicant and noted range of motion impairments to the neck, low back, and right shoulder. Dr. Prutis concluded that the Applicant sustained moderately severe myofascial cervical strain, myofascial lumbar strain, right shoulder sprain and contusion, and a fracture of the third metacarpal head of the right hand and referred her for MRIs of the neck, low back, and shoulder. No treatment recommendations were made, but Dr. Prutis advised that a reassessment would occur following the MRIs. No record of those MRIs or of the follow-up assessments with Dr. Prutis were provided for this hearing.
13The report by Dr. Prutis is uncompelling because it provides insufficient information on the Applicant’s ability to carry out her pre-accident activities and contains inaccuracies. The report notes that the Applicant’s pain is aggravated by prolonged postures and that she has difficulty with overhead reaching. Pain in the right hand and middle finger is noted, but no impairments are related to it. The information provided above does not permit me to assess the Applicant’s pre-accident activities and assess her ability to carry out those activities post-accident. Difficulty with an activity is different than suffering a complete inability to substantially engage in activity. Additionally, as noted earlier, imaging conducted in June 2019 demonstrated that the Applicant never sustained a fracture.
14On the other hand, I find the insurer’s examination, (“IE”), report of Dr. M. Khaled, physician, to be compelling evidence demonstrating that the Applicant does not suffer a complete inability to carry on a normal life as a result of the accident. Dr. Khaled assessed the Applicant and found no valid indicators to support residual, ongoing, or permanent musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. Dr. Khaled concluded that the Applicant sustained sprain and strain injuries and noted that the Applicant should be reassured that it is safe to resume all aspects of life that she was engaged in prior to the accident.
15Considering the above, I find that the Applicant has not met her onus to demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident. Therefore, I find that she is not entitled to NEBs for the period claimed.
Minor Injury Guideline (“MIG”)
16The 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 the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
17Pursuant to section 18(2) of the Schedule, the $3,500.00 funding limit for minor injuries does not apply if the Applicant can demonstrate that she had a documented pre-existing medical condition which would prevent her from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit.
18I find that the Applicant has not met her onus of demonstrating that she sustained an injury that is not a minor injury as defined in section 3 of the Schedule.
19The Applicant’s injuries are predominantly sprain and strain injuries. The x-ray reports provided confirm that the Applicant sustained no fractures as a result of the accident. The disability certificate dated June 16, 2018 lists soft-tissue injuries and no fractures or other injuries. The report by Dr. Prutis, dated January 31, 2019, identified only soft-tissue injuries, with the exception of an erroneous diagnosis of a fractured finger. The disability certificate by Dr. Choe, dated September 30, 2018, states that the Applicant suffers from secondary depression and chronic pain syndrome and a fracture of her right middle finger. This disability certificate is uncompelling because it clearly contradicts the imaging reports that ruled out a finger fracture and there is no corroborating evidence demonstrating that the Applicant suffers from depression or chronic pain syndrome. Dr. Choe’s CNRs were never submitted for this hearing, which may have provided insight into the examinations conducted in order to reach the conclusions noted in the disability certificate. Further, there is no evidence that the Applicant is substantially impaired as a result of pain that would support a diagnosis of chronic pain syndrome. The Tribunal has consistently found that diagnoses rendered in treatment and assessment plans, or in disability certificates, hold virtually no weight when presented without any clinical notes and records to support them.
20As noted previously, Dr. Khaled assessed the Applicant and determined that she sustained sprain and strain injuries which are minor injuries. Dr. Khaled found no pre-existing health condition which would prelude the Applicant’s recovery if subject to the MIG and the $3,500.00 funding limit.
The Treatment and Assessment Plans in Dispute
21I find that the Applicant has not established that she is entitled to the treatment plans in dispute.
22The Applicant never submitted the treatment plans for this hearing. As a result, I am unable to determine the goods and services proposed in the plans and whether they are reasonable and necessary.
CONCLUSION
23The Applicant has not met her onus to demonstrate that she suffers from a complete inability to carry on a normal life as a result of the accident.
24I find that the Applicant sustained a minor injury as defined in section 3 of the Schedule.
25The Applicant has not met her onus to demonstrate that she is entitled to the treatment plans in dispute.
26The Application is dismissed.
Released: February 13, 2023
Brian Norris
Adjudicator