Leong v. Aviva Insurance Company of Canada, 2024 CanLII 121086

Citation: Leong v. Aviva Insurance Company of Canada, 2024 ONLAT 22-010896/AABS

Licence Appeal Tribunal File Number: 22-010896/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:

Kit Ngan Leong

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Branson Wong, Counsel

HEARD: By way of written hearing.

OVERVIEW

1Kit Ngan Leong, the applicant, was involved in an automobile accident on September 1, 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, Belair 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 (MIG) limit?

ii. Is the applicant entitled to $202.22 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated December 21, 2021?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessments & Treatment Clinic in a plan dated November 9, 2021?

iv. Is the applicant entitled to $4,069.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a plan dated February 8, 2022?

v. Is the applicant entitled to a non-earner benefit of $185.00 per week from July 18, 2022, to October 8, 2023?

vi. Is the respondent liable to pay an award under s. 10 of O. Reg. 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 the applicant has not proven on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

4The applicant is entitled to any remaining amount within the MIG limit if it has not been exhausted.

5I find that the applicant is not entitled to Non-Earner Benefits.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6I find that the applicant has not proven on a balance of probabilities that her injuries are more than minor in nature or that she sustained a psychological impairment as a result of the accident. As a result, she is not removed from the MIG.

7Section 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 minor injuries. 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.”

8An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal. In all cases, the burden of proof lies with the applicant.

9In this instance, the applicant submits that she should be removed from the MIG because her injuries are more than minor in nature, and because she sustained a psychological condition as a result of the accident.

10The respondent argues that the applicant has not proven that she suffered from more than minor injuries or a psychological condition.

Does the applicant suffer from injuries more than minor in nature?

11I find that the applicant has not proven on a balance of probabilities that she suffers from injuries beyond those outlined in the Minor Injury Guideline (MIG).

12The applicant submits that she suffers from non-minor injuries and relies on the clinical notes and records (CNRs) of her family doctor, Dr. Chan. The applicant has not directed me to any portion of Dr. Chan’s CNRs where Dr. Chan has diagnosed the applicant with anything other that minor injuries as defined in the Schedule, as Dr. Chan’s notes reveal sprain and strain type injuries.

13The respondent submits that the applicant has not provided compelling medical evidence that she suffers injuries beyond those outlined in the MIG and relies on a s.44 musculoskeletal assessment by Dr. Silver, chronic pain management practitioner, dated December 1, 2021. The applicant reported to Dr. Silver that her neck and left shoulder pain, headaches, and back and chest pain had all resolved following the accident. The physical examination by Dr. Silver was unremarkable. The doctor’s diagnosis was that the applicant suffered from uncomplicated soft tissue injuries.

14In reviewing the evidence, I agree that the applicant has not proven on a balance of probabilities that she suffers from injuries beyond those outlined in MIG. The CNRs of Dr. Chan note sprain and strain type injuries which are corroborated by the musculoskeletal assessment of Dr. Silver.

15The applicant has not satisfied her onus to prove on a balance of probabilities that she suffers from injuries beyond those as defined by the Schedule.

Does the applicant suffer from a psychological condition?

16I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition.

17The applicant submits that she suffers from a psychological condition due to the accident and relies on a pre-screening report supervised by Dr. McDowall, C. Psych, completed by Ms. Ma, MASW, RP. This pre-screen is identified as a provisional assessment, and Dr. McDowall’s opinion was that the applicant’s clinical presentation provides evidence that she is experiencing many of the symptoms commonly found in individuals suffering from a post-accident psychological impairment. It is unclear in the report how this interview was completed, in-person, via teleconference, or by phone. There is no evidence in this pre-screen report that any review of the applicant’s medical history was undertaken.

18That applicant also relies on the CNRs of Dr. Chan to support her position that she sustained a psychological impairment as a result of the accident. The CNRs also show an inconsistency in reporting of psychological issues by the applicant. In one note, Dr. Chan notes in relation to post traumatic stress syndrome, “follow up – meds & psych, if no improvement” but there is no evidence that Dr. Chan made any referral or prescribed any medication.

19The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that she suffers a psychological condition. The respondent relies on a psychological assessment completed by Dr. Saunders, psychologist, completed on June 29, 2022. Dr. Saunders completed psychometric testing of the applicant and based on this testing as well as his clinical interview. A personality assessment inventory (PAI) test was undertaken, this test showed that the applicant attempted to portray herself in negative or pathological manner relative to her objective clinical status. Dr Saunders diagnosed the applicant with mild level of symptoms that do not meet clinical criteria for psychological impairment.

20In review of the evidence, I find that the applicant has not proven on a balance of probabilities that she sustained a psychological impairment as a result of the accident. I gave more weight to the findings of Dr. Saunders, as his assessment included documentation review, he assessed the applicant directly and in person, as opposed to Dr. McDowall who did not. There is no indication as to the method of Dr. McDowall’s assessment, and it was administered by Ms. Ma.

21The applicant has not satisfied her onus to prove on a balance of probabilities that she suffers from a psychological condition due to the motor vehicle accident.

The Treatment Plans

22As I have found the applicant is not removed from the MIG, she is subject to its limits for the disputed treatment plans. The applicant is entitled to any remaining balance within the MIG limits.

Non-Earner Benefits (NEBs)

23I find that the applicant is not entitled to a NEB from July 18, 2022, to October 8, 2023, as she has not proven that she suffers from a complete inability to carry on a normal life as a result of the accident in accordance with s.12(1) of the Schedule.

24Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment because of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for the NEB entitlement test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which generally requires a comparison of the applicant’s pre-accident and post-accident activities.

25The applicant takes the position that she qualifies for the NEB from July 18, 2022, to October 8, 2023. She claims that the injuries sustained in the accident resulted in her suffering a complete inability to carry on a normal life. In support of her claim, she relies on a Disability Certificate (OCF-3) submitted by Dr. Palantzas, chiropractor. The OCF-3 notes that at the time of the examination, the patient appears to have difficulty with sustained postures, standing, walking, sitting, bending, lifting, carrying, pushing, pulling, squatting, and overhead activities. The OCF-3 also notes a decrease in normal life functional capacity. The applicant has not directed me to how Dr. Palantzas tested the applicant to derive this finding. The contents of the OCF-3 are contradicted by the CNRs of Dr. Chan as Dr. Chan does not note any of the limitations set out in the OCF-3 as being suffered by the applicant. Nor does the OCF-3 clearly outline that the applicant has a complete inability to carry on normal life.

26The respondent argues that the applicant has not met her burden of proving that she suffers from a complete inability to carry on a normal life. In support of its claim, the respondent relies on an occupational therapy assessment completed by Ms. Bhatnagar, occupational therapist, dated December 1, 2021. Ms. Bhatnagar completed an in-person examination of the applicant, comprised of an interview, physical examination, and observation of tasks. Ms. Bhatnagar concluded that the applicant demonstrates sufficient range of motion, strength, sitting/standing/walking tolerances, and kneeling/squatting to be independent in most of the activities of daily living. The applicant reported returning to some leisure activities such as going to church and going for walks with her daughter.

27I find that the applicant has not proven on a balance of probabilities that she suffers a complete inability to carry on normal life. The respondent relies on the OCF-3 completed by Dr. Palantzas. The OCF-3 concludes that the applicant had a decrease in normal life function, not a complete inability. This finding is contradicted by the occupational therapy assessment, which clearly outlines that the applicant is fully capable of carrying on a normal life. The occupational therapy assessment is supported by Dr. Chan’s CNRs which do not note any inabilities to carry on a normal life.

28The applicant has not satisfied her onus to prove on a balance of probabilities that she suffers a complete inability to carry on a normal life.

Special Award

28As the applicant is not entitled to payment for the two treatment plans in question no special award under s.10 of O. Reg. 664 is due.

Interest

29As the applicant is not entitled to any payments no interest is due.

ORDER

30I find that:

i. The applicant remains subject to the MIG.

ii. The applicant is not entitled to payment for the disputed treatment plans.

iii. The applicant is not entitled to Non-Earner Benefits.

iv. The applicant is not entitled to a payment of an award under s.10 of O. Reg. 664.

v. As nothing is owed, no interest is due.

vi. The application is dismissed.