Chen v. Co-operators General Insurance Company, 2024 CanLII 20684

Chen v. Co-operators General Insurance Company

Citation: Chen v. Co-operators General Insurance Company, 2024 ONLAT 22-005000/AABS

Licence Appeal Tribunal File Number: 22-005000/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:

Yi Gong Chen

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Samia Makhamra

APPEARANCES:

For the Applicant: Ryan Olson, Paralegal

For the Respondent: Amanda Cadoret, Counsel

HEARD: By written submissions

OVERVIEW

1Yi Gong Chen, the applicant, was involved in an automobile accident on May 19, 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? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from June 17, 2021 to date and ongoing?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessment in a treatment plan/OCF-18 ("plan") dated June 29, 2021?

iv. Is the applicant entitled to $165.37 for massage therapy and an assessment, submitted on a claim form (OCF-6) dated July 6, 2021?

v. 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?

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

RESULT

3The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

4The applicant is not entitled to a non-earner benefit.

5It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans as they propose goods and services outside the MIG and the $3,500.00 funding limit.

6The Insurer is not liable to pay an award.

7The applicant is not entitled to interest as there are no overdue benefits.

ANALYSIS

The applicant's impairments fall within the MIG

8Section 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 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 person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from their minor injury if they are kept with the confines 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 evidence indicates that the applicant's injuries fall within the MIG. A Treatment Confirmation Form (OCF-23) submitted by Dr. Danilo Caribe on the applicant's behalf and dated June 15, 2021, proposed treatment under the MIG. The injuries listed were whiplash associated disorder I, a sprain and strain to the lumbar and thoracic spine, and an injury of muscle and tendon at the lower leg level. These injuries are included in the definition of "minor injury" in s. 3(1) of the Schedule.

11On the occasion, he had attended an intake assessment at the Aquafit Physiotherapy Clinic. He reported experiencing constant pain in his neck and upper shoulder area and intermittent pain in his lower back and right leg that was aggravated by working and driving. He stated that the pain began one week after the accident and provided pain ratings between 0 to 3.9 out of 10.

12The applicant underwent nine sessions of physiotherapy and massage therapy between June 15 and August 8, 2021. He did not have any treatment until a final session on September 21, 2021.

13Further, a Minor Injury Treatment Discharge Report (OCF-24) completed by Dr. Caribe on March 22, 2022, indicated that no additional intervention was required. Dr. Caribe noted that the applicant had returned to his full pre-accident regular activities at discharge and had achieved full functionality.

14The applicant submits he should be removed from the MIG due to a psychological impairment, and due to chronic pain. He relies on a telephone visit with Dr. Heung-Wing Li on October 21, 2021, wherein he complained of ongoing lower back pain, trouble sleeping, nightmares and fear of driving. Dr. Li prescribed Naproxen, zopiclone and duloxetine for pain and PTSD symptoms, and provided a referral for a psychological assessment.

15Regarding chronic pain, the applicant submits that he reported ongoing lower back pain almost two years after the accident. This is recorded during his visit to Dr. Tarek El Chabib on March 23, 2023. He submits that while he suffered minor impairments as a result of the accident, the fact that the pain he experiences persisted for such a long period is evidence of his chronic pain and should remove him from the MIG.

16The respondent submits there is no evidence for the applicant's assertions.

17I am not persuaded that the applicant suffers from a psychological impairment to warrant removal from the MIG. While Dr. Li provided a diagnosis of PTSD on October 21, 2021, this was based entirely on the applicant's self-reported symptoms without objective testing or assessment. Also, Dr. Li did not include any psychological symptoms on the OCF-3 completed on October 28, 2021. As for the treatment plan for a psychological assessment prepared by Dr. McDowall, I note that there was no objective testing done, which indicates that the diagnosis provided by Dr. McDowall and Dr. Li was provisional and not based on a review of any medical records or a result of objective testing.

18In addition, I am not persuaded that the applicant suffers from chronic pain. While he reported ongoing pain during a visit to Dr. El Chabib almost two years after the accident, there is no medical evidence of ongoing pain in the interim period. Importantly, as I noted earlier, there is an OCF-24 of March 22, 2022, wherein Dr. Caribe indicated that the applicant had returned to his full pre-accident regular activities at discharge and had achieved full functionality. In order for an applicant to be removed from the MIG on the basis of chronic pain, they must also establish significant resulting functional impairment. The applicant has failed to present evidence which satisfies me that his ongoing pain has resulted in any significant functional impairments.

19I find that the applicant has failed to demonstrate injuries which are more than minor ones as the result of the accident, and he therefore remains subject to the MIG.

The applicant is not entitled to a non-earner benefit (NEB)

20Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result 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.

21Section 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 NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant's pre- and post-accident activities.

22I find that the applicant does not meet the test for an NEB benefit as there is no compelling evidence to support this claim. He submitted a disability certificate, an OCF-3, completed by Dr. Li, dated October 28, 2021 and received by the respondent on November 24, 2021, which indicated that he was unable to carry on a normal life; however, there is no other evidence to support a complete inability to carry on a normal life.

23The applicant submits he is entitled to this benefit based on the disability certificate he provided to the respondent, available medical records, and based on the respondent's failure to provide a valid denial in accordance with s. 36(4)(b).

24The applicant's position is problematic for two reasons. First, while the disability certificate indicated a complete inability to carry on a normal life, it provided no other details such as what activities he could not participate in or what his difficulties were. In addition, despite the respondent's request, the applicant did not provide medical records for any period before the accident. In other words, the disability certificate of October 28, 2021 is unsupported by evidence.

25Second, the applicant's claim that the respondent's improper denial entitles him to the benefit is without merit. The next paragraphs provide a summary of the letters between the applicant and the respondent. I find that the letters show that the respondent responded appropriately with respect to the claim for an NEB.

26The respondent had contradictory information regarding the applicant's student status. The applicant had submitted two OCF-1 forms, the first was dated May 21, 2021 and indicated that he was unable to return to school, while the second OCF-1, dated June 2, 2021, indicated that he attended online school and was able to return to same after the accident.

27The respondent then denied payment of an NEB on June 30, 2021, and requested a completed disability certificate to determine eligibility. It also requested various medical records. When the respondent did not receive the information it requested, the applicant was put on notice under s. 33, with a deadline of October 22, 2021. The applicant replied by letter on October 25, 2021. His letter included his requests for records from treatment providers but did not include any medical records. In a letter dated October 28, 2021, the respondent advised the applicant that no medical and rehabilitation benefits would be payable after October 29, 2021, until he submitted a completed OCF-3.

28On November 24, 2021, the respondent received the OCF-3 completed by Dr. Li indicating that the applicant suffered from a complete inability to carry on a normal life but not explanation was provided for same.

29Once in receipt of the OCF-3, on November 24, 2021, the respondent advised the applicant that he was not entitled to an NEB because of a lack of objective compelling medical evidence to support his complete inability to carry on a normal life. The respondent also noted that the applicant remained a full-time student at Fanshawe College and has continued to attend his regular schooling, therefore, based on the information received, he was advised that he did not meet the criteria for an NEB.

The applicant is not entitled to a psychological assessment or massage therapy

30It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans for a psychological assessment and massage therapy as they propose goods and services outside the MIG and the $3,500.00 funding limit.

The insurer is not liable to pay an award

31The applicant is seeking an award under s. 10 of O. 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.

32In examining whether an insurer's conduct in withholding or denying a benefit warrants an award, the case law is well established that, the insurer's behaviour must be seen as "excessive, imprudent, stubborn, inflexible, unyielding, or immoderate".

33I do not find that an award is payable in this case. The Insurer properly paid benefits within the MIG, and there are no other benefits owed to the applicant.

ORDER

34For the reasons outlined above, I order the following:

1. The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

2. The applicant is not entitled to a non-earner benefit.

3. It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans as they propose goods and services outside the MIG and the $3,500.00 funding limit.

4. The respondent is not liable to pay an award.

5. The applicant is not entitled to interest as there are no overdue benefits.