Licence Appeal Tribunal File Number: 22-011130/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:
Jing Lin
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Daniel M. Himelfarb, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jing Lin, the applicant, was involved in an automobile accident on October 14, 2021, 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, Co-operators General Insurance Company, 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 Minor Injury Guideline limit?
ii. Is the applicant entitled to an income replacement benefit in the amount of $321.32 per week from February 13, 2022 to ongoing?
iii. Is the applicant entitled to $249.38 ($1,300.00 less $1,050.62 approved) for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan dated May 13, 2022?
iv. Is the applicant entitled to $3,989.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan dated May 13, 2022?
v. Is the applicant entitled to $2200.00 for a Psychology Assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated March 24, 2022?
vi. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is entitled to payment of income replacement benefits from July 15, 2022 to November 10, 2022, plus interest. The applicant is not entitled to income replacement benefits for the remaining period in dispute;
iii. The applicant is not entitled to the treatment plans in dispute; and
iv. The applicant is not entitled to an award.
ANALYSIS
Minor Injury Guideline
4Section 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.”
5An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 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.
6The applicant submits that she should be removed from the MIG on the basis of psychological impairment.
The applicant has not established a psychological impairment warranting removal from the MIG
7To establish her claim of accident-related psychological impairments, the applicant relies on the psychological pre-screen report of Dr. Bruce Cook, who provisionally diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood. The applicant further submits the clinical notes and records (“CNRs”) of her family physician Dr. Grace Trinh, who noted the applicant’s complaints of insomnia, fatigue, nightmares, concentration difficulties and low mood and prescribed medication for her insomnia. Finally, the applicant argues that despite the fact that she reported psychological symptoms to the respondent’s general practitioner (“GP”) s. 44 assessor, the respondent did not investigate the applicant’s complaints by scheduling a psychological insurer’s examination (“IE”).
8The respondent disputes that the applicant has developed a psychological impairment as a result of the accident. It submits that the CNRs of Dr. Trinh reveal that the applicant reported that her post-accident headaches had resolved and provide only limited complaints of insomnia. The respondent argues that insomnia in and of itself does not warrant removal from the MIG, particularly as it had improved. It further argues that Dr. Trinh did not refer the applicant for any psychological treatment. Finally, the respondent submits that Dr. Cook only provisionally diagnosed the applicant in a pre-screening interview and cites Tribunal caselaw that a provisional diagnosis is insufficient to remove a claimant from the MIG.
9I find that the applicant has not met her onus to prove that she should be removed from the MIG on psychological grounds.
10Although the applicant relies on the CNRs of Dr. Trinh, I agree with the respondent that they only establish intermittent psychological complaints. The applicant did not report any accident-related symptoms to her family physician until nine months after the accident, despite attending a number of times in the intervening months for unrelated reasons, including a physical where it was noted that there were “no concerns”. The applicant first mentioned the accident to Dr. Trinh on July 17, 2022 where she reported post-accident headaches, which had resolved, and insomnia which “improved a little”. From July to September 2022 the applicant reported insomnia since the accident, and Dr. Trinh prescribed medication. However, Dr. Trinh discontinued the medication on September 29, 2022.
11The applicant does not direct me to any CNR entry outside of this two month window where she reported accident-related insomnia to Dr. Trinh or was prescribed medication. During this two month period the applicant also reported low mood “sometimes”, rare nightmares and difficulty concentrating. However, Dr. Tinh did not diagnose the applicant with a psychological impairment or refer her for psychological treatment. In subsequent visits, such as her next annual physical in February 2023, it was again noted that there were “no concerns”.
12I agree with the reasoning in the Tribunal decision cited by the respondent, Y.W.C. v. Allstate Canada, 2020 CanLII 27386 (ONLAT) that to warrant removal from the MIG, a claimant must show that they have an actual psychological impairment and not just symptomology. The Tribunal in Y.W.C. further held that a psychological diagnosis would require the development of ongoing, substantive and residual post-traumatic symptomology or clinically-significant psychological distress. The CNRs of the applicant’s family doctor do not establish ongoing reports of insomnia or clinically-significant psychological distress.
13Further, although the applicant relies on Dr. Cook’s OCF-18 and pre-screening interview where he provisionally diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, I agree with the cited caselaw that a pre-screen interview alone is not sufficient evidence of a psychological impairment. Particularly as the interview was based on self-reporting answers, without the benefits of the applicant’s medical records, and no diagnostic testing was conducted.
14Finally, the applicant argues that the respondent should have ordered a psychological IE, particularly as the applicant had reported psychological symptoms to the GP s. 44 assessor Dr. Ahmad Belfon. However, I agree with the respondent that an insurer is not required to schedule a s. 44 assessment where the medical evidence did not support a claim. In the present matter, the medical record does not establish a psychological impairment warranting removal from the MIG.
15As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Income Replacement Benefit (“IRB”)
16I find that the applicant has not established entitlement to IRBs.
Substantive entitlement to IRBs
17To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
18The applicant submits that prior to the accident, she was employed full time as a food packager at Manleysales. The essential tasks of her employment required her to lift vegetables from a conveyer belt and package them into boxes. She argues that she returned to work post-accident due to financial stress, but had to stop working in February 2022 because of pain from her physical injuries, fatigue and psychological impairments. The applicant relies on a Disability Certificate (“OCF-3”) and OCF-18s prepared by Mr. Ahmed Afifi, who noted the applicant’s low energy and fatigue, decreased tolerance in sitting, standing, and walking and an inability to lift, carry, bend or twist. Mr. Afifi stated that the applicant was substantially unable to perform the essential tasks of her employment.
19The applicant further argues that although the respondent denied her claim on the basis of Dr. Belfon’s GP IE, Dr. Belfon did not opine on psychological impairments. As such, the applicant argues that he did not properly assess whether her fatigue and concentration difficulties prevented her from completing her pre-accident essential tasks.
20The respondent argues that the applicant has not provided any medical evidence that she was unable to work post-February 2022, but rather, solely relies on the OCF forms prepared by her physiotherapist. It submits that the applicant returned to work a few days after the accident with no apparent work modifications, and did not stop working until February 2022, when she enrolled into a full-time medical esthetician program. The applicant also reported working as a cleaner in 2022. The respondent argues that the applicant stopped working as she wished to pursue a different career path, rather than being unable to complete the essential tasks of her employment.
21I find that the applicant has not met her onus to prove that she was substantially unable to perform the essential tasks of her employment. Although she relies on the OCF-3 and OCF-18s prepared by Mr. Afifi, the physical impairments and restrictions listed in the OCF forms are not corroborated by the medical record. The CNRs of the applicant’s family physician do not reveal any complaints of accident-related physical injuries or restrictions with standing, walking, lifting, carrying or twisting or an inability to work. Further, in a CNR entry dated August 9, 2022, the applicant reported to Dr. Trinh that in addition to attending a medical esthetics program, she was working in the physically demanding role of a cleaner. Despite providing reply submissions, the applicant did not provide any details or submissions on her employment as a cleaner.
22The respondent’s s. 44 assessor Dr. Belfon found that the applicant had normal tone, bulk and power in her upper and lower extremities. She had active range of motion in her neck, shoulder, knees and back without any pain reported. Although the applicant reported to Dr. Belfon that she had to stop working due to overall fatigue and weakness in her arms, Dr. Belfon did not that there were any essential tasks of employment that the applicant would be unable to perform. The applicant further has not led objective medical evidence to establish that she was unable to continue her employment due to fatigue and inability to concentrate.
23As such, I find that the applicant has not met her onus to prove a substantive entitlement to IRBs.
Procedural compliance with s. 36(4) and s. 33(8)
24As an alternative argument, the applicant submits that IRBs should be payable as the respondent failed to comply with s. 36(4) and s. 33(8) of the Schedule.
25I find that the applicant has established that IRBs are payable for the period of July 15, 2022 to November 10, 2022. The applicant has not established that IRBs are payable for the remaining period in dispute.
26Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed OCF-3 for IRBs, the insurer shall:
a) Pay the specified benefit;
b) Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c) Send a request to the applicant under s. 33(1) or s. 33(2).
27In response to the applicant’s OCF-3, the respondent made a number of s. 33(1) requests on March 22, 30, April 6, May 13, June 13 and June 28, 2022. The applicant had gradually complied with these requests, with the remaining item being a Record of Employment (“ROE”). By way of letters dated July 15, 2022 and August 3, 2022, the applicant explained that she was unable to provide an ROE, since her employer did not issue one. As such, I agree with the applicant that by July 15, 2022, she was compliant with s. 33 of the Schedule. The respondent did not make a further s. 33 request and instead subsequently scheduled a s. 44 examination, although this NOE was not submitted into evidence. After conducting the IE, the respondent sent a denial notice dated November 10, 2022, which the applicant agrees complied with the Schedule.
28Given that the applicant had complied with the respondent’s s. 33 requests by July 15, 2022 but a denial was not issued until November 10, 2022, I find that IRBs are payable from July 15, 2022 to November 10, 2022 pursuant to s. 36(4) and s. 33(8) of the Schedule. The applicant has not established that IRBs are payable for the remaining period in dispute.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the payment of IRBs from July 15, 2022 to November 10, 2022.
Award
30The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
31Although I have found that the applicant is entitled to payment of IRBs for a period of four months due to procedural non-compliance with s. 36 and s. 33 of the Schedule, I am not persuaded that these actions were excessive, impudent, stubborn, unyielding or immoderate. I do not find that this procedural non-compliance meets the high threshold for an award. Further, although the applicant submits that she was improperly held within the MIG, I similarly found that the applicant failed to establish that her accident-related impairments warranted removal from the MIG.
32As such, the applicant has not established that the respondent is liable to pay an award.
ORDER
33For the foregoing reasons I find that:
i. The applicant is not removed from the MIG;
ii. The applicant is entitled to payment of IRBs from July 15, 2022 to November 10, 2022, plus interest. The applicant is not entitled to IRBs for the remaining period in dispute;
iii. The applicant is not entitled to the treatment plans in dispute; and
iv. The respondent is not liable to pay an award.
Released: November 27, 2024
__________________________
Ulana Pahuta
Adjudicator