Licence Appeal Tribunal File Number: 22-014001/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:
Xu Ke Yang
Applicant
and
Travelers Insurance Company of Canada (operating as Dominion of Canada General Insurance Company)
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
WRITTEN SUBMISSIONS BY:
Applicant:
Aylina Dhanji, Counsel
Respondent:
Jeffrey Wong, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Xu Ke Yang, the applicant, was involved in an automobile accident on June 25, 2022, 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, Travelers Insurance Company of Canada (operating as Dominion of Canada 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 28, 2023, to date and ongoing?
iii. Is the applicant entitled to $3,909.56 for physiotherapy proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted on September 13, 2022, and denied on September 21, 2022?
iv. Is the applicant entitled to $68.61 for prescription medication contained in an OCF-6 submitted on October 28, 2022, and denied on November 16, 2022?
v. Is the applicant entitled to $48.02 for prescription medication contained in an OCF-6 submitted on November 16, 2022, and denied on November 25, 2022?
vi. Is the applicant entitled to $43.68 for prescription medication contained in an OCF-6 submitted and denied on December 19, 2022?
vii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessment and Treatment Clinic in a plan submitted on July 29, 2022, and denied on November 23, 2022?
viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG funding limit.
4The applicant is not entitled to an IRB.
5As the applicant has been found to be within the MIG, it is not necessary to determine whether the disputed treatment plans and OCF-6s are reasonable and necessary.
6The respondent is not liable to pay an award.
7No interest is payable.
ANALYSIS
Applicability of Minor Injury Guideline
8Section 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.”
9An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside 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.
10The applicant submits that he suffers from chronic pain and a psychological impairment as a result of the accident.
The applicant does not suffer from chronic pain as a result of the accident
11I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain with a functional impairment as a result of the accident.
12The evidence shows and there is no dispute that on June 25, 2022, following the accident, the applicant attended at the hospital, reporting chest pain, shortness of breath, bleeding from a tongue laceration, and pain with movement. He was diagnosed with soft tissue injury of multiple sites and a tongue laceration and was advised to take over the counter pain medication as needed.
13I find that the applicant reported the following injuries to Dr. Andy Lai, his family physician, because of the accident:
i. On July 15, 2022, the applicant reported neck and front chest pain, that he was doing physiotherapy and his symptoms were improving. Dr. Lai discussed physiotherapy, chiropractic treatment and acupuncture with the applicant.
ii. On October 5, 2022, the applicant reported neck and chest pain. Dr. Lai discussed physiotherapy, chiropractic treatment and acupuncture with the applicant.
iii. On October 31, 2022, the applicant reported shoulder and neck pain. Dr. Lai discussed physiotherapy, chiropractic treatment and acupuncture with the applicant.
iv. On December 9, 2022, the applicant reported neck and chest pain, as well as sleeping issues. Dr. Lai conducted an assessment for a mood disorder and noted no suicidal or homicidal ideation. He discussed anxiety and depression as well as other possible causes and preventions with the applicant. They further discussed a psychologist, a sleep consultant, counselling, physiotherapy, chiropractic treatment and acupuncture. Dr. Lai prescribed Zoplicone for sleep.
v. On March 2, 2023, the applicant reported neck pain. Dr. Lai conducted an assessment for a mood disorder and noted no suicidal or homicidal ideation. He discussed anxiety and depression as well as other possible causes and preventions with the applicant. They further discussed a psychologist, a sleep consultant, counselling, physiotherapy, chiropractic treatment and acupuncture. Dr. Lai prescribed Trazodone for sleep.
14The applicant saw Dr. Lai on four other occasions, between the date of the accident and January 30, 2023, but did not discuss any accident-related injuries.
15In support of his assertion that he suffers from chronic pain, the applicant relies on his reports of pain to Dr. Lai, to Dr. Sedigheh Naisi, psychologist, during a pre- pre-screen on July 29, 2022, and to Mr. Ahmed Afifi, physiotherapist, who completed two OCF-3s, an OCF-23, and two OCF-18s. However, I find that the applicant only submitted Dr. Lai’s treatment records.
16I agree with the respondent’s submission that to be removed from the MIG, ongoing pain must be accompanied by functional impairment. I find that the applicant did not report any functional impairment to his family doctor, nor did Dr. Lai make a referral to a chronic pain specialist. As such, I find that there is insufficient medical evidence from treating physicians to corroborate the findings made in the OCF-3s, the OCF-23, and two OCF-18s to establish that the applicant suffered from chronic pain.
17For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that he suffers from chronic pain with functional impairment because of the accident that would remove him from the MIG.
The applicant does not suffer from a psychological impairment as a result of the accident
18I find that the applicant has not demonstrated, on a balance of probabilities, that he suffered a psychological impairment because of the accident that would take him out of the MIG.
19Based on Dr. Lai’s clinical notes and records, I find that the applicant reported insomnia. Dr. Lai then assessed him for a mood disorder and discussed possible causes and preventions for the insomnia. I find that Dr. Lai did not diagnose the applicant with a psychological impairment.
20I place little weight on the pre-screen report dated July 29, 2022 of Dr. Naisi, who diagnosed the applicant with mixed anxiety and depressive disorder after asking the applicant a series of questions. The applicant reported sleep difficulties, fatigue, vehicle anxiety, low mood, flashbacks, reduced social interaction, reduced motivation, and reduced confidence. I am not persuaded by this report that the applicant has a psychological impairment because there is no indication that any psychometric testing was conducted. Further, as pointed out by the respondent, the report does not contain reasons why Dr. Naisi felt the applicant suffered from mixed anxiety and depressive disorder because of the accident.
21I also place little weight on the applicant’s submission that Mr. Afifi indicates that there is a psychological component as a barrier to the applicant’s recovery. As a physiotherapist, I find that Mr. Afifi is not qualified to provide a psychological opinion.
22For these reasons, I find that the applicant has not established on a balance of probabilities that he suffers from a psychological impairment because of the accident that would remove him from the MIG.
The applicant is not entitled to income replacement benefits
23I find that the applicant has not established on a balance of probabilities that he is entitled to IRBs.
24To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
25The applicant submits that prior to the accident, he worked at a corn factory, and he stopped working after the accident due to his physical and psychological pain symptoms. The applicant further submits that the essential tasks of his employment involved production labour and packing corn, which often involved prolonged sitting, standing, bending, and walking. Further, the work took place in a fast-paced working environment.
26The applicant relies on two OCF-3s dated June 29, 2022, and January 31, 2023, which were completed by Mr. Afifi, indicating that the applicant is substantially unable to perform the essential tasks of his employment as a result of and within 104 weeks of the accident, and that he is unable to return to work on modified hours or duties. The applicant further relies on an OCF-23 dated June 29, 2022 and two OCF-18s dated August 19, 2022, and September 13, 2022 that were completed by Mr. Afifi, the latter of which is at issue in this hearing.
27The applicant submits that he reported to Mr. Afifi decreased sitting, standing, and walking tolerance, that he was unable to do tasks that require lifting, carrying, repetitive bending, and twisting and that Mr. Afifi repeatedly noted the applicant’s inability to work as a factory worker. The applicant also submits that Dr. Naisi noted that the applicant is no longer able to work due to the injuries from the accident. Upon a review of the OCF-18 and the pre-screen report, I find that Dr. Naisi indicated that the applicant’s impairments “affected his” ability to carry out the tasks of his employment and that Dr. Naisi indicated that the applicant reported that he was unable to work.
28The applicant is requesting entitlement to an IRB beginning on March 28, 2023. I find that the applicant has not submitted contemporaneous medical evidence from this date and ongoing to support his claim. The evidence he has submitted pre-dates this period. Further, I find that the applicant has not submitted any medical evidence to corroborate any findings in the OCF-3s, the OCF-23, and the OCF-18s that he suffers a substantial inability to perform the essential tasks of that employment. I find that Dr. Lai’s clinical notes and records reveal that the applicant did not discuss his inability to work with his family doctor, nor did Dr. Lai indicate that the applicant was unable to work.
29Further, I find that although the applicant makes submissions identifying the essential tasks of his employment, he did not submit any employment records or other evidence to substantiate this. Submissions alone do not constitute evidence.
30For these reasons, I find that the applicant has not established on a balance of probabilities that he suffers a substantial inability to perform the essential tasks of his employment. As such, he is not entitled to IRBs.
31As I have found the applicant's injuries to be subject to treatment within the MIG, it is not necessary for me to determine whether the disputed treatment plans and OCF-6s are reasonable and necessary. Further, with respect to the OCF-6s, the applicant has not offered submissions to demonstrate that any of the items listed in the expense claim forms meet the exceptions under s. 38 of the Schedule to warrant payment. The applicant is entitled to treatment up to the MIG limit. I will, however, address the applicant’s argument that the respondent has failed to comply with the requirements set out in s. 38(8) of the Schedule regarding its notice denying the physiotherapy treatment plan.
32I find that the respondent’s notice denying the treatment plan complied with section 38(8).
33The applicant submits that section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in section 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
34The applicant submits that the respondent’s reasoning for the denial was that it believed his injuries are predominantly minor. The applicant further submits that the Explanation of Benefits dated September 21, 2022 is too vague to constitute a valid medical reason for refusing to pay the claimed benefit.
35The respondent points to the Explanation of Benefits which advised the applicant that he was within the MIG based on a lack of medical documentation, that it would be requesting clinical notes and records, and that Insurer’s Examinations would be arranged. On the same day, the respondent sent a letter to the applicant requesting clinical notes and records from the family doctor, specialist reports, and hospital records, among other things.
36In these circumstances, where insufficient medical evidence was provided to the respondent, I find that the respondent’s notice complied with section 38(8).
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
38The 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. Since no benefits were unreasonably withheld, the applicant is not entitled to an award.
ORDER
39The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. Therefore, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans and the OCF-6s. The applicant is entitled to treatment up to the MIG limit.
40The applicant is not entitled to an IRB.
41The respondent is not liable to pay an award.
42No interest is payable.
43The application is dismissed.
Released: December 19, 2024
Laura Goulet
Adjudicator