Liu v. Security National Insurance Company, 2024 CanLII 121084

Citation: Liu v Security National Insurance Company, 2024 ONLAT 22-013064/AABS

Licence Appeal Tribunal File Number: 22-013064/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:

Wei Liu

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Adrianna Klukowska, Counsel

HEARD: By way of written submissions

OVERVIEW

1Wei Liu (“the Applicant”) was involved in an automobile accident on December 17, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2The Respondent characterized the Applicant’s injuries as falling within the “minor injury” definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute.

3The Applicant disagrees with these decisions by the Respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

4The issues in dispute are:

i. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury.

ii. Is the Applicant entitled to medical benefits proposed by Easy Health Centre as follows: i. $2,349.56 for physiotherapy treatment, proposed in a plan dated September 11, 2020; ii. $2,349.56 for physiotherapy treatment, proposed in a plan dated August 12, 2021; and iii. $1,853.78 for a physiotherapy treatment, proposed in a plan dated October 18, 2021?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,600.00 for a psychological assessment plan proposed by Somatic Assessments & Treatment Clinic, dated December 16, 2020?

iv. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the Applicant sustained a minor injury as defined in section 3 of the Schedule. He has not met his onus to demonstrate entitlement to the benefits claimed.

6No interest and no award are payable.

BACKGROUND

7The Applicant was the driver of a vehicle which was struck from behind and on the side by another vehicle while making a left turn at an urban intersection. Police and ambulance arrived at the scene of the accident, but the Applicant sought no medical attention at that time.

8The Applicant met with his family physician, Dr. P. Pang, the following day and was diagnosed with a lumbar strain. He started physiotherapy treatment at Injury Prevention Rehab pursuant to the MIG, on January 6, 2015.

9The Applicant submits that he suffers from chronic pain and psychological injuries as a result of the accident. The Respondent submits that the Applicant has not provided any objective medical evidence to demonstrate that his ongoing health issues, if any, were as a result of the accident.

PROCEDURAL ISSUES

10This matter was ordered to a hearing by way of written submissions. The Applicant was ordered to make initial submissions, the Respondent was ordered to make responding submissions, and the Applicant was permitted to make reply submissions, if any.

11The deadline came and passed for the Applicant to make his initial written submissions, but he never served or filed any submissions or evidence.

12The day after the Applicant’s submissions and evidence were due, the Respondent filed its submissions, highlighting that the Applicant failed to issue his initial submissions and evidence. Later that same day, the Applicant issued submissions and evidence.

13The Applicant acknowledges that his submissions were one day late but submits that there is no prejudice to the Respondent in issuing the submissions a day late. Further, the Applicant consented to a reasonable extension of time for the Respondent to serve its submissions and evidence.

14The Respondent never replied to the Applicant’s submissions. The Applicant never filed any reply submissions.

15Indeed, the Applicant’s submissions are untimely. However, no consequence need be imposed upon him as he has not met his onus to demonstrate a non-minor injury and entitlement to the benefits claimed.

ANALYSIS

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.

17The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule. He submits that he suffers from chronic pain and psychological injuries as a result of the accident and that these injuries are not captured within the minor injury definition in section 3 of the Schedule.

18For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.

No psychological injury as a result of the accident

19I find that the Applicant has not demonstrated that he suffers from a psychological injury as a result of the accident.

20The psychological assessment pre-screen report by B. Cook, psychological associate, is uncompelling evidence of an accident-related psychological injury. The pre-screen report, attached to the treatment and assessment plan proposing the psychological assessment, relies entirely on the Applicant’s self-reported health history and included no review of the Applicant’s medical record. It is unclear what prompted the psychological assessment plan because I am unable find evidence of a psychological injury in the Applicant’s treatment records.

21There is no contemporaneous evidence indicating psychological injuries, or a need for a psychological assessment. I am unable to find any psychological complaints documented in Dr. Pang’s CNRs, nor have I found any information to suggest a psychological injury as a result of the accident. Moreover, IE assessor Dr. M. Costa El-Hage, psychologist, reviewed the Applicant’s medical records, conducted an in-person interview, and administered psychometric testing to conclude that he does not meet diagnostic criteria for any DSM 5 diagnosis and sustained a minor injury.

22Accordingly, I find that the Applicant has not met his onus to demonstrate that he sustained a psychological injury as a result of the accident.

Chronic Pain

23I find that the Applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident.

24The Applicant’s medical record does not indicate that he suffers from chronic pain or that he is functionally impaired by pain. There are no accident-related complaints within Dr. Pang’s CNRs after December 2014. While Dr. Pang referred the Applicant for massage therapy on September 11, 2020, the records do not indicate that the referral is accident-related. Further, the absence of accident-related pain complaints during the period from January 2015 until September 11, 2020 leads me to conclude that the referral for massage therapy is not related to the accident.

25The Applicant does not meet the criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”). While it is not part of the Schedule, the Tribunal has generally accepted the AMA Guides as an interpretive tool for assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription dugs or other substances; development of psycho-social sequalae after the initial incident; excessive dependence on healthcare providers, spouse, or family; secondary physical deconditioning due to disuse; and a failure to restore pre-injury function after a period of disability. Here, the Applicant missed no time from work following the accident, and presented no evidence of any ongoing reliance on medication or healthcare providers. Further, there is no evidence of a deconditioning due to disuse and no evidence of a psychological injury.

26The Applicant has not presented an opinion or evidence demonstrating that he suffers from a chronic pain condition which is not sequalae of the soft tissue injuries sustained in the accident.

The treatment and assessment plans in dispute and interest

27Having found that the Applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury.

28Likewise, interest is only payable on the overdue payment of benefits, pursuant to section 51 of the Schedule. Having found that the Applicant is not entitled to the disputed treatment and assessment plans, it follows that no payments are overdue and thus, no interest is payable.

No award is payable

29Pursuant to section 10 of Reg. 664, the Applicant may be entitled to an award if the Respondent unreasonably withheld or delayed payment of a benefit.

30Having concluded that the Applicant sustained a minor injury and is not entitled to the benefits claimed, it follows that no benefits were unreasonably withheld or delayed. Thus, the Applicant is not entitled to an award.

CONCLUSION

31I find that the Applicant sustained a minor injury as defined in section 3 of the Schedule.

32He is not entitled to the remaining treatment and assessment plans in dispute because they proposed goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury.

33No award or interest is payable because the Respondent never unreasonably withheld or delayed the payment of benefits.