Citation: He v. Co-operators General Insurance Company, 2024 ONLAT 22-013162/AABS

Licence Appeal Tribunal File Number: 22-013162/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:

Chen Zhi Hao He

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Robert Rock

APPEARANCES:

For the Applicant:

Ryan Olson, Paralegal

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Chen Zhi Hao He, the applicant, was involved in an automobile accident on June 9, 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 (MIG) limit?

ii. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for Physiotherapy Services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF18 dated August 31, 2021?

iii. Is the applicant entitled to $4,149.56 for Physiotherapy Services proposed by Total Recovery Rehab Centre in a treatment plan/OCF18 dated November 5, 2021?

iv. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan dated July 2, 2021?

v. Is the applicant entitled to $48.99 for medication, submitted on a claim form (OCF-6) dated September 3, 2021?

vi. Is the applicant entitled to $14.99 for medication, submitted on a claim form (OCF6) dated November 2, 2021?

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

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

RESULT

3The applicant has not met his onus to prove on a balance of probabilities that his accident-related injuries are non-minor as defined in s. 3 of the Schedule.

4The applicant is not entitled to the treatment plans or payment for the two OCF-6 expense claims for medication in dispute as his injuries are predominantly minor and therefore subject to treatment within the $3,500.00 MIG limit.

5As the payment of benefits were not unreasonably withheld or delayed no special award is payable.

6As there are no overdue benefits no interest is payable.

ANALYSIS

The Minor Injury Guideline (“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.

9The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant submits that he should be removed from MIG due to chronic pain with a functional impairment and a psychological condition.

a. The applicant does not suffer from chronic pain with a functional impairment.

10I find that the applicant has not met his burden to demonstrate on a balance of probabilities that he suffers from chronic pain with a functional impairment.

11The applicant relies on the clinical notes and records (CNRs) of Dr. Raveendran, family doctor. The CNRs do not support the presence of chronic pain. The doctor has referred to the reported back pain as mechanical or lumbar sprain and has recommended physiotherapy. I place little weight on the CNRs as no updated imaging was requested, there are no ongoing prescriptions for pain, nor a referral to a pain clinic.

12The applicant also relies on an assessment by Dr. Chan (no designation provided) completed on May 10, 2023. The assessment by Dr. Chan does not support the presence of chronic pain. No diagnosis or clinical opinion was rendered by Dr. Chan. The doctor included a plan of management recommending self-management, daily stretches, and regular walks. The doctor prescribed home exercise, did not order imaging, and recommended a follow up with the applicant’s family doctor. The conclusions of Dr. Chan’s report corroborate those of Dr. Raveendran, i.e., sprain and strain injuries. I place little weight on this assessment, as it does not render any diagnosis or clinical opinion on the question of chronic pain.

13I find that the applicant has not met his onus to prove on a balance of probabilities to prove he suffers from chronic pain with a functional impairment. Neither the CNRs of Dr. Raveendran nor the assessment by Dr. Chan support the presence of chronic pain with a functional impairment and do not note issues with the applicant’s activities of daily living. I am not directed to compelling evidence to support this claim.

14The applicant has not met his onus to prove on a balance of probabilities that suffers from chronic pain with a functional impairment.

b. The applicant does not suffer from a psychological condition.

15I find that the applicant has not met his burden to demonstrate on a balance of probabilities that he suffers from a psychological condition.

16The applicant relies on the CNRs of Dr. Raveendran, family doctor. The CNRs of Dr. Raveendran do not support the claim of ongoing accident-related nightmares. The reviewed CNRs include one reference to a nightmare in a September 22, 2022 visit. What is not clear in the CNR is if the report on a nightmare is in relation to the first or second motor vehicle accident as both are referenced in the note from that visit. The entry for that visit includes a reference “advised to see a psychologist – has seen one after the first MVA”. I am not directed to evidence that the applicant followed up on this advice, and I am not directed to any other evidence in Dr. Raveendran’s CNRs to support the claim of a psychological condition.

17The applicant also relies on a pre-screen report from Dr. McDowall, certified psychologist (C. Psych) completed on June 15, 2021. This pre-screen report does not support the claim of a psychological condition. This report is not supported by any contemporaneous medical evidence. The applicant did not see his family doctor for two months after this report, and no psychological complaint was mentioned to the doctor for over a year after the completion of this report. Additionally, there are issues with accident details which do not match the hospital and ambulance records in the description of the post accident complaints. The applicant did not report general back pain, waist pain, numbness in his hands or dizziness to the paramedics or hospital staff. I place little weight on this report due to its lack of depth providing how the clinical opinion was formulated.

18The applicant also relies on an assessment by Dr. Chan (no designation provided) completed on May 10, 2023. The assessment captures the applicant’s report of avoidance behaviour, low mood, and social withdrawal, but Dr. Chan makes no diagnosis or clinical opinion regarding the applicant’s psychological condition.

19I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from a psychological condition. The applicant has not directed me to compelling evidence to argue that a psychological condition is present. The single report to Dr. Raveendran, and the doctor’s note about visiting a psychiatrist does not rise to the level of a diagnosis of a psychological condition. Dr. McDowall’s pre-screen report had factual inconsistencies regarding the physical complaints by the applicant due to the motor vehicle accident and lacked any depth to the stated clinical opinion. Additionally, there is no contemporaneous medical evidence from any other health professional to corroborate the opinion of the pre-screen report.

20The applicant has not proven they suffer from a psychological condition as a result of the accident.

c. The applicant is not entitled to the two OCF-6 for medication.

21The applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment or a psychological condition to warrant removal from MIG. As such, medical and rehabilitation benefits are limited to $3,500.00, which have been exhausted.

22The applicant is not entitled to the two OCF-6 for medication.

23The applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment or a psychological condition to warrant removal from MIG. As such, medical and rehabilitation benefits are limited to $3,500.00, which have been exhausted.

24The applicant is not entitled to the treatment plans in question.

Special Award

25The applicant sought an award under s. 10 of Reg. 664. Under s. 10. As no benefits were unreasonably withheld or delayed, there is no special award owing.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest is owing.

ORDER

27I find that the applicant:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

ii. As the MIG has been exhausted, the applicant is not entitled to the treatment plans or payment for the two OCF-6 expenses for medication in dispute.

iii. As no benefits were unreasonably withheld or delayed, there is no award owing.

iv. As no benefits are overdue, no interest is owing.

v. The application is dismissed.