Citation: Chau v. Unica Insurance Inc., 2024 ONLAT 22-006883/AABS

Licence Appeal Tribunal File Number: 22-006883/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:

Amy Chau

Applicant

and

Unica Insurance Inc.

Respondent

DECISION

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Lawrence Calenti, Counsel

For the Respondent:

Taheratul Hague, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Amy Chau, the applicant, was involved in an automobile accident on March 4, 2022, 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, Unica Insurance Inc, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The following issues are to be decided:

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 Minor Injury Guideline limit?

ii. Is the applicant entitled to $3,692.58 for chiropractic services, proposed by North Toronto Rehab in a treatment plan dated April 18, 2022?

iii. Is the applicant entitled to $1,495.05 for chiropractic services proposed by North Toronto Rehab in a treatment plan dated August 6, 2022?

iv. Is the applicant entitled to $983.81 for chiropractic services proposed by North Toronto Rehab in a treatment plan dated September 7, 2022?

v. Is the applicant entitled to $871.00 for chiropractic services proposed by North Toronto Rehab in a treatment plan dated October 3, 2022?

vi. Is the applicant entitled to $728.19 for chiropractic services proposed by North Toronto Rehab in a treatment plan dated November 10, 2022?

vii. Is the applicant entitled to $871.00 for chiropractic services proposed by North Toronto Rehab in a treatment plan dated December 5, 2022?

viii. Is the applicant entitled to $983.81 for chiropractic services proposed by North Toronto Rehab in a treatment plan dated January 5, 2023?

ix. Is the applicant entitled to $1,189.55 for chiropractic services proposed by North Toronto Rehab in a treatment plan dated February 1, 2023?

x. Is the applicant entitled to $4,787.55 for psychological services proposed by Dr. Godwin Lau in a treatment plan dated January 16, 2023?

xi. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Dr. Godwin Lau in a treatment plan dated November 18, 2022?

xii. Is the applicant entitled to $2,734.60 for a physiatry assessment proposed by Dr. Chen in a treatment plan dated October 5, 2022?

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

RESULT

3For the reasons that follow, I find that:

i. The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the disputed treatment plans; and

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

Applicability of the Minor Injury Guideline ("MIG")

4The 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 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."

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

8The MIG limit of $3,500.00 has been exhausted.

Does the applicant have a physical impairment that warrant the removal from the MIG?

9I find that the applicant has not provided sufficient evidence to demonstrate that she suffered a concussion as a result of the accident, which would justify treatment beyond the MIG.

10Concussions and post-concussive syndrome, if established, fall outside the MIG because the MIG relates only to "minor injuries", as defined in section 3(1) of the Schedule and neither condition is included in the definition. However, in order to be removed from the MIG, the applicant must present evidence that demonstrates that as a result of the accident, she suffered a concussion or post-concussive syndrome.

11The applicant argues that she should be removed from the MIG because of the concussion and syncope diagnosis in the OCF-3 by Dr. Ian Pun, family physician, dated June 8, 2022, and the finding of Dr. Yen-Fu Chen, physiatrist, in the section 25 physiatry report dated November 7, 2022. Dr. Chen concluded that her diagnosis included a concussion, which is not a minor injury.

12The respondent submits that the applicant has not provided persuasive medical evidence that she had a head injury or post-concussive symptoms. On the date of the accident, the applicant was taken by ambulance to the Scarborough General Hospital, she denied any head injury and CT scan and x-rays revealed no abnormalities. Furthermore, the respondent submits that the post-accident clinical notes and records ("CNRs") of Dr. Pun do not mention a head injury, post-concussive symptoms, headaches or concussion testing. The respondent submits thar Dr. Pun's concussion diagnosis is related to the applicant's syncope episode, which is the medical definition for fainting.

13In reviewing the evidence, I am not persuaded that as a result of the accident the applicant suffered a concussion or post-concussive syndrome. I find that the applicant was treated by Dr. Pun on various occasions following the accident, but there are no records of her complaining of head injuries, head aches or post-concussive symptoms. Furthermore, there is no recommendation or referral to a specialist by Dr. Pun. The injuries listed in the OCF-3 by Dr. Pun on June 8, 2022, are at odds with his CNRs despite various appointments. Furthermore, there is no mention by Dr. Pun or Dr. Chen of the concussion type testing to make the determination. Even if I were to accept that the applicant sustained a concussion, I am not persuaded that it would entitle the applicant to be taken out of the MIG, as the CNRs do not reveal a complaint of head or concussive symptoms.

14As such the applicant has not proven, on a balance of probabilities that her impairment would prevent maximal recovery from her accident-related injuries if she was kept within the MIG limits.

Does the applicant have a psychological impairment that warrant the removal from the MIG?

15I am not persuaded that the applicant should be removed from the MIG based on a psychological condition.

16An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

17To be removed from the MIG due to psychological impairments, the applicant must show that she has a psychological impairment and not just post-accident psychological sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

18The applicant submits that she has sustained psychological impairments as a result of the accident. In support of her claim, the applicant relies on the section 25 assessment of Dr. Godwin Lau, psychologist, dated December 6, 2022. At the assessment the applicant reported interrupted sleep due to anxiety and crying episodes. The assessment did not reveal disclosure by the applicant of pre-existing anxiety or her Elavil prescription since 2019 as a result of her mother's death. Dr. Lau concluded that the applicant was experiencing Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia, Situational Type (Driving/Passenger Anxiety). I am not persuaded that Dr. Lau's psychological impairment is as a result of the accident. The applicant also relies on Dr. Chen's conclusion that the applicant suffers from post-traumatic insomnia and associated psychological impacts.

19The respondent submits that the applicant did not sustain a psychological impairment as a result of the accident. The respondent relies on an independent psychological assessment by Dr. Randy Silverman, psychologist, dated February 9, 2023. Dr. Silverman concluded a psychometric assessment and found that the applicant did not meet the full DSM-5 criteria for a trauma or stress related disorder, depressive disorder or anxiety disorder. Furthermore, the respondent claims that the applicant's Elavil prescription did not change post-accident, and the applicant did not raise depression or anxiety issues during any appointment with Dr. Pun.

20In reviewing the evidence, I am not persuaded that the applicant has met her burden to prove that she suffers a psychological impairment as a result of the accident. The applicant did not report any pre-existing psychological issues, or use of prescriptions, which raises doubt if the accident caused the psychological impairment. As such I am persuaded by the conclusion of Dr. Silverman as the assessment considered the entirety of the applicant's medical history and determined that the applicant did not meet the full DSM-5 criteria. I also prefer the opinion of Dr. Silverman over Dr. Chen, as Dr. Chen is not a psychologist. Lastly, in reviewing the medical evidence I find that the applicant has been using Elavil since 2019 and the prescription has not changed post-accident, as well as the applicant has not raised any anxiety or depression issues to Dr. Pun.

21As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.

Does the applicant have pre-existing condition that warrant the removal from the MIG?

22I am not persuaded that the applicant should be removed from the MIG based on a pre-existing condition.

23Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

24The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person's impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

25The applicant submits that she has a pre-existing medical history of hip, knee, left shoulder and insomnia symptoms. The applicant relies on the CNRs of Dr. Gary Lau, former family physician, and Dr. Pun, that reveal reported neck, knee, shoulder pain or discomfort and insomnia complaints along with an Elavil prescription since 2019. Insomnia and anxiety were also referred in the OCF-3 completed by Dr. Pun. The applicant also relies on the section 25 physiatry report of Dr. Chen, dated November 7, 2022, who concluded that the applicant's injuries did not fall within the MIG as there was an aggravation of her pre-existing left shoulder dysfunction, and has opined that treatment beyond the MIG is necessary. Lastly, the applicant relies on the OCF-18s completed by North Toronto Rehab that reference her pre-existing injuries, including knee and spine were aggravated by the accident and would affect the applicant's recovery from the accident.

26The respondent submits that the applicant has failed to provide any compelling medical evidence to prove that her injuries fall outside of the MIG. The respondent submits that the applicant is relying on different pre-existing conditions in her application, then were listed in her OCF-18. The respondent argues that in the OCF-18 her pre-existing left shoulder and neck issues were not listed but are relied on in her application. Specifically, her left shoulder injury that will prevent maximal recovery. The respondent also relies on the IE examination of Dr. Sukhi Bhangu, physiatrist, dated August 31, 2022. Dr. Bhangu completed a physical testing on the applicant, concluding that from a musculoskeletal perspective, the applicant sustained a minor injury as defined in the MIG. Furthermore, during this assessment in 2022, the applicant did not report any pre-existing left shoulder or neck pain but reported knee pain.

27It is true that the clinical notes and records ("CNRs") of Dr. Lau and Dr. Pun document complaints of pre-accident injuries. The applicant's submissions reference various prescriptions for Elavil since 2019 to assist with insomnia, hip pain between November 26, 2019 and May 2020, left shoulder pain was reported on October 1, 2020, on November 14, 2020 the left-shoulder pain was reported to have improved and by February 22, 2021 it was reported that the applicant only had occasional left shoulder aches, lastly the CNRs on October 1, 2020 report occasional knee ache but movement was ok. Dr. Lau and Dr. Pun recommended physical therapy, stretching and Gabapetin for hip-pain. Following the accident, the applicant only mentioned a left shoulder pain to Dr. Pun months later in November 2022, and left neck pain in June 2022. The CNRs of Dr. Pun does not recommend further physical therapy or further medical intervention with respect to the applicant's neck or left shoulder. I am satisfied that the applicant has suffered from pre-existing injuries, however this only satisfies the first part of the test. The applicant must also provide compelling evidence that the said pre-existing condition would preclude maximal recovery if kept within the MIG limits.

28I am not satisfied that the applicant has met the second part of the test pursuant to section 18(2) of the Schedule, as she has not directed me to compelling medical evidence that her pre-existing condition would prevent maximal recovery in the MIG limits. While there is documented evidence of various pre-existing injuries, the medical evidence of Dr. Chen's assessment only references her pre-existing left shoulder injury preventing the applicant from achieving maximum recovery in the MIG. In reviewing the totality of the medical evidence, including Dr. Pun's November 2022 CNR, it is inconsistent with the conclusion of Dr. Chen. As such I give more weight to Dr. Pun, Dr. Lau, and Dr. Bhangu.

29I acknowledge the applicant's documented complaints of preexisting injuries; however, the applicant has failed to direct me to any compelling medical evidence that her pre-existing injuries would prevent maximal medical recovery if kept within the MIG limits.

30As such the applicant has not proven, on a balance of probabilities that her pre-existing condition would prevent maximal recovery from her accident-related injuries if she was kept within the MIG limits.

31As I have found the applicant to remain in the MIG, I find that it is not required to review the treatment plans in dispute to determine if it is reasonable and necessary.

INTEREST

32As there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

33For the reasons outlined above, I find that:

i. The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to interest; and

iv. The application is dismissed.