Citation: Gao v. Allstate Insurance Company of Canada, 2024 ONLAT 22-011541/AABS

Licence Appeal Tribunal File Number: 22-011541/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:

Canran Gao

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Greg Witt

APPEARANCES:

For the Applicant:

Aylina Dhanji, Counsel

For the Respondent:

Lauren C. Kolarek, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Canran Gao, the applicant, was involved in an automobile accident on December 12, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are to be decided:

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 $4,463.90 for chiropractic services proposed by Total Recovery Rehab Centre in a treatment plan dated April 28, 2022?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessments & Treatment Clinic Inc. in a treatment plan dated April 13, 2022?

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

v. 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 not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to interest; and,

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

ANALYSIS

4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the “minor injury” definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits she suffers from a psychological condition and chronic pain that prevents her from maximum recovery within the MIG. The respondent submits that the applicant has failed to establish that her injuries are not predominately minor and that they can be treated within the confines of the MIG.

Psychological Impairment

8An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.

9In order to be removed from the MIG due to psychological impairments, the applicant must show that she has a psychological impairment and not post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments. I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.

10The applicant claims she suffers from psychological impairments resulting from the accident. The applicant claims Mr. Ahmed Afifi, Physiotherapist, noted a psychological component to her injuries but did not include a reference to any clinical notes and records (“CNRs”) to support this claim. Moreover, Mr. Afifi is a physiotherapist and a psychological diagnoses are not within his scope of expertise. Similarly, the applicant relies on the evidence of Ms. Georgia Palantzas, chiropractor, who claims the applicant was suffering from anxiety and attention deficit disorder. Ms. Palantzas is a chiropractor, not a medical doctor, and the applicant led no evidence that psychological diagnoses are within Ms. Palantzas scope of expertise, nor how Ms. Palantzas was qualified to diagnose psychological disorders. The applicant also relies on a pre-screening report completed by Mandy Fang, social worker, dated January 10, 2022. The report itself was completed by Mandy Fang, a social worker, who is supervised by Dr. Sharleen McDowall, psychiatrist. The applicant provides no direct evidence from a qualified professional/physician that she should be removed from the MIG due to a psychological impairment. It is not clear from the applicant’s submissions about the breadth and depth of the supervisory relationship between Ms. Fang and Dr. McDowall.

11The respondent relies on Section 44 Multidisciplinary Assessment Report of Psychologist Dr. Fabio Salerno, psychologist, dated August 16, 2022. The report confirms that the applicant had not experienced any mood difficulties over the last two months, denies psychological difficulty performing her employment tasks and further stated that she did not have any distress or panic travelling in a vehicle as a passenger. In summary, her symptoms, as described by Dr. Salerno, were mild and fell below a DSM-5 diagnostic threshold and therefore do not exhibit clinically significant accident-related symptoms warranting a diagnosis.

12After reviewing the evidence, I find the applicant has not provided compelling evidence that she suffers from a psychological impairment as a result of the accident that would remove her from the MIG. The applicant did not direct me to any CNRs of medical physician’s in regard to her psychological claim. In my opinion, it is beyond the scope of a chiropractor or physiotherapist to opine on the applicant’s cognitive ability. I am persuaded by the psychological report prepared by Dr. Salerno, as I find it to be credible and an accurate assessment of the applicant’s psychological condition.

13For the above reasons, the applicant has not met her onus to prove on a balance of probabilities that her alleged, accident-related psychological impairments warrant treatment beyond the MIG.

Chronic Pain

14I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

15In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects her day-to-day or work function.

16The applicant relies on evidence from Mr. Ahmed Afifi, Ms. Georgia Palantzas, and Mandy Fang. The CNRs from Mr. Afifi, reported in a OCF-3 dated January 10, 2022 the applicant suffers a complete inability to carry on a normal life and in a OCF-18 dated March 4, 2022 the applicant had difficulty with most housekeeping tasks, decreased sitting, standing and walking tolerance, unable to do tasks that require lifting and carrying, unable to do tasks that require bending and twisting, decreased driving tolerance due to physical/psychological dysfunctions, and unable to work. The applicant further relies on an OCF-18 dated April 27, 2022 of Ms. Palantzas that reports the applicant is suffering from chronic injuries and pain the spine and shoulder. The applicant further relies on the pre-screening report dated January 10, 2022 completed by social worker Mandy Fang, which stated the applicant self-reported ongoing pain.

17The respondent relies on the s. 44 insurer examination of Dr. Jacqueline Auguste, orthopaedic surgeon, dated August 16, 2022 where the applicant confirmed that she had not sought any medical attention as yet for any accident-related injuries, demonstrated full range of motion on all planes and opined that there were no objective clinical findings of any substantive musculoligamentous, osseous or neurologic impairments from an orthopaedic perspective that could be causally linked to the accident.

18I find that the applicant did not meet the onus required to prove chronic pain. Despite references within the applicant’s submissions with respect to chronicity, the applicant fails to provide any submissions specifically related to a chronic pain diagnosis, nor has the applicant referred to or submitted evidence from a chronic pain specialist. Mentions of chronic pain is not the same as a chronic diagnosis.

19I also find the applicant did not lead sufficient evidence to prove she suffered from a functional impairment as a result of the motor vehicle accident. I am persuaded by the applicant’s own self-reported condition in the notes of Mr. Afifi dated March 4, 2022 that treatments have been effective and reduced shoulder and hip pain. I am further persuaded by Dr. Jacquiline Auguste’s report dated August 16, 2022, which states the applicant returned both to work and school following the accident, and that this evidence does not suggest the applicant was experiencing ongoing functional impairment as a result of the MVA. I also attribute more weight to the evidence submitted by the respondent as it is from doctors who are medical professionals in their field; whereas the applicant relies primarily on evidence from a chiropractor, a physiotherapist and a social worker to opine on what are medical issues.

20The date of the accident was December 12, 2021, and the first date the applicant saw a doctor was January 12, 2022, which means there was a gap of 30 days between the accident and the first time she saw a medical professional. During that appointment, she did not report the accident or any physical injuries; instead she reported cold symptoms. The applicant also makes no mention of the accident or pain related to the accident to Dr. Azimzadeh, a walk-in clinic doctor, the applicant visited twice following the accident as the applicant did not have a family doctor.

21Further, in the submissions before me, the respondent references the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”) while the applicant makes no reference to the AMA Guides. The AMA Guides’ six criteria for chronic pain were not incorporated into the Schedule; however, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes.

22I find the applicant does not establish that she meets three of the six criteria for chronic pain as identified in the AMA Guides, which state that at least three of the enumerated criteria must be met for a diagnosis. The respondent submits and I agree that that applicant has not demonstrated: a dependence on prescription drugs; the applicant has not provided evidence that she is excessively reliant on any health care providers, as demonstrated by her infrequent appointments to a medical physician, nor has she ever mentioned the accident to her family doctor; no evidence of deconditioning or social withdrawal, as the IE assessments reveal the applicant returned to work and school following the accident as well as completed housework and Dr. Auguste reported that no clinical evidence to impose any restrictions on the applicant’s activities of daily life; and there is no evidence that the applicant suffers any psychosocial or psychological symptoms.

23In summary, I find that the applicant does not suffer from functional impairment as a result of accident-related pain. She has not established chronic pain meriting removal from the MIG.

Quantum of MIG Remaining

24The applicant claimed only $1,300.00 in benefits had been paid to date and $2,200.00 remained, while the respondent claimed the MIG was exhausted.

25The respondent submitted a summary of medical, rehabilitation and attendant care benefit payments dated March 19, 2024, which included a ledger showing $3,500.00 has been paid or pre-approved, all to Total Recovery Rehab Centre.

26The applicant submitted a letter in response to the Case Conference Report and Order, dated October 2, 2023 which states the quantity of benefits paid to date is $1,300.00.

27In this case, I prefer the respondent’s evidence, which is more current and detailed, and find it is more likely than not the total amount of benefits paid to date is $3,500.00. Therefore, I find the MIG has been exhausted.

28The applicant is not entitled to the disputed treatment plans, because I have found that the applicant is subject to the MIG. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

INTEREST

29Given there are no overdue payment of benefits, the applicant is not entitled to interest, pursuant to s. 51 of the Schedule.

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. I find there are no withheld or delayed payments.

31In this case, no award shall be granted.

ORDER

32The application is dismissed, and I 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 not entitled to the treatment plan in dispute;

iii. The applicant is not entitled to interest; and

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