Citation: Bai v. Cooperators General Insurance Company, 2024 ONLAT 22-010457/AABS

Licence Appeal Tribunal File Number: 22-010457/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:

Yang Bai

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Anil Hampole, Counsel

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By way of written submission

OVERVIEW

1Yang Bai, the applicant, was involved in an automobile accident on August 12, 2020, 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 $3500.00 Minor Injury Guideline limit? The parties agree the MIG limits have not been exhausted.

ii. Is the applicant entitled to $200.00 ($1,300.00 less $1,000.00 approved) for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated September 30, 2020?

iii. Is the applicant entitled to $4,303.90 for chiropractic services proposed by Total Recovery Rehab Centre in a treatment plan dated November 4, 2020?

iv. Is the applicant entitled to $2,200 for a psychological assessment, proposed by Sonic Assessments and Treatment Clinic in a plan dated December 11, 2020?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

3The Respondent notes that the applicant makes no reference to issue ii. and issue vi in their written hearing submissions. I note the applicant submitted award particulars on August 4, 2023, however, as there is no specific reference in the applicant’s submission that was filed January 31, 2024. I find the applicant has not demonstrated entitlement to an award.

RESULT

4I find that the applicant has not proven on a balance of probabilities that their injuries are outside of the MIG. The applicant is not entitled to the disputed treatment plans, interest, or an award.

ANALYSIS

Are the applicant’s injuries predominantly minor injuries as defined by the Schedule and therefore subject to treatment within the MIG?

5I find that the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.”

7An insured 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 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.

8In this matter, the applicant seeks to be removed from the MIG because of physical pain in the neck and shoulders and a psychological impairment as a result of the accident. Removal from the MIG would allow the applicant to access treatment plans for the ongoing psychological disorders and physical injuries resulting from the accident.

9The applicant relies on an OCF-18 dated December 11, 2020, prepared by Dr. Sharleen McDowall, psychologist, with Somatic Assessments & Treatment Clinic Inc. that her physical injuries are not minor due to ongoing physical pain in the neck and shoulders.

10The applicant relies on an OCF-18 dated September 30, 2020, prepared by Dr. Georgia Palantzas, chiropractor, with Total Recovery Rehab Centre that she is suffering from a limited ability to function, decreased range of motion in cervical, thoracic, lumbar spine and shoulder, and hip, difficulty standing and sitting, walking, and lifting.

11I do not place weight on the OCFs and Dr. McDowall’s or Dr. Palantzas’ notes alone as the applicant did not file supporting documentation such as clinical notes and records or objective medical examinations to support the information contained in the OCF-18s. It is well-established by this Tribunal that OCF-18s on their own are not sufficient to demonstrate entitlement. I find the OCFs alone are not sufficient for meeting the onus to establish entitlement to coverage beyond MIG limits.

12The respondent submitted evidence identifying the applicant’s physical impairments as sprain and strain-type injuries. I find the applicant did not submit supportive or compelling evidence, or corroborating documentation to establish diagnosis and impairment that is outside of the s. 3 definition.

13While I am alive to the applicant’s concerns, the applicant’s submission did not include medical expert reports or supporting materials to corroborate their submissions.

Does the applicant have psychological injuries that would remove her from the MIG?

14I find the applicant has not provided compelling evidence regarding psychological impairment resulting from the accident and the applicant is not removed from the MIG.

15The applicant relies on an OCF-18 prepared by Dr. McDowall which states that they suffer from depression, anxiety, frustration, irritation, and fear. The applicant submits that the quality of her sleep has deteriorated, and she avoids driving. Dr. McDowall’s notes state, the applicant “needs a full psychiatric assessment to determine a treatment plan”. I am not persuaded by Dr. McDowall’s pre-screening notes as it did not make reference to any objective psychometric testing or an in-depth clinical review to determine diagnosis and treatment.

16The applicant also relies on an OCF-18 prepared by Dr. Palantzas which states that she suffers from anxiety, attention deficit, and a sleep disorder as a result of the accident. I give less weight to Dr. Palantzas’ OCF-18 regarding the applicant’s psychological impairments as this is outside of Dr. Palantzas’ practice as a chiropractor.

17The applicant did not submit supportive and objective medical evidence. I find Dr. McDowall’s and Dr. Palantzas’ treatment plans, without anything more, are not sufficiently compelling evidence to remove the applicant from the MIG on the basis of a psychological condition.

18The respondent stated the OCF-18 prepared is not a full psychological screening and lacks objective testing which has not been corroborated. As stated earlier, it is well-established by this Tribunal that OCF-18s on their own are not sufficient for meeting the onus to establish entitlement to coverage beyond MIG limits.

Are the treatment plans in dispute reasonable and necessary?

19I find the applicant is not entitled to the treatment plan for chiropractic services or the psychological assessment as the applicant did not provide sufficient objective medical evidence or explanation why she should be removed from the MIG.

20The parties have confirmed there is a remaining amount in the MIG and the applicant is entitled to the remaining amount, if any, up to the MIG threshold limit provided by the Schedule.

Interest

21As no benefits are owing, it follows that no interest applies.

Award

22The applicant sought an award under s. 10 of Reg. 664. I find the applicant made no reference to a s. 10 award in the written hearing submissions and is not entitled to an award.

ORDER

23The applicant has not demonstrated removal from the MIG is warranted.

24The OCF-18 for chiropractic services is not reasonable and necessary. The OCF-18 for a psychological assessment is not reasonable and necessary. No interest applies and the applicant is not entitled to a s. 10 award.