Licence Appeal Tribunal File Number: 22-002694/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:
Jooyoun Kim
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Jae Hyon Cho, Counsel
For the Respondent: Kathy Conteh, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jooyoun Kim (“the applicant”), was involved in an automobile accident on July 17, 2019, 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 Intact Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal -Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
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 limit? (“MIG”)
Is the applicant entitled to $8,853.06 for chiropractic services proposed by Dr. Amir Owliael, chiropractor, in a treatment plan/OCF-18 (“OCF-18”), submitted on January 11, 2021, and denied on January 19, 2021?
Is the applicant entitled to $2,195.00 for a chronic pain assessment, proposed by Dr. Owliael in an OCF-18, submitted on October 5, 2020, and denied on November 17, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. She is not entitled to the treatment plans, nor interest.
iii. The application is dismissed.
ANALYSIS
The Minor Injury Guideline
4Section 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.”
5An 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 if they are kept within 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.
6In all cases, the burden of proof lies with the applicant.
7The applicant submits that she should be removed from the MIG as she has chronic pain and psychological conditions.
8The respondent argues that the applicant’s accident-related injuries fall within the MIG.
The applicant has not established chronic pain warranting removal from the MIG
9I find that the applicant has not met her burden to prove that she suffers from a chronic pain condition that would warrant removal from the MIG.
10The applicant submits that she suffers from constant neck pain, upper and lower limb pain, lower back pain, shoulder pain, right arm pain, right leg pain, and headaches. The applicant relies solely on a s. 25 chronic pain assessment report by Dr. Daniel Yim, general medical practitioner, dated November 24, 2020, where she was diagnosed with chronic pain and myofascial pain syndrome.
11In response, the respondent argues that the applicant has not produced medical evidence from her treating practitioner that contains a formal diagnosis of chronic pain. Furthermore, the respondent submits that the applicant has not explained how severe her pain is, nor has she established any functional limitations as a result of this pain. To support its position, it relies upon a s. 44 report of Dr. Yuri Marchuk, physiatrist, dated December 29, 2020, and the clinical notes and records of the applicant’s family physician, Dr. Afrooz Drakhshan.
12A chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, see: 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae of a minor injury. To be frank, the applicant has fallen well short of meeting her onus to establish chronic pain with functional limitations.
13First, the records of the applicant’s family physician’s office do not support the applicant’s position that she has developed chronic pain as a result of the accident. Significantly, from the evidence tendered, the applicant has only met with an OHIP funded doctor once following the accident. Moreover, in this one entry, dated July 19, 2019, the applicant was diagnosed with muscle strains of the neck and shoulders by Dr. Ricardo Ko.
14Next, I find that the s. 25 chronic pain assessment of Dr. Yim is of limited probative value. First, Dr. Yim, did not review any medical evidence, like the clinical notes and records from the applicant’s family physician’s office. As such, it does not appear that Dr. Yim was provided a comprehensive medical record when coming to his conclusions.
15Second, Dr. Yim relied largely on the applicant’s self-reporting to arrive at his diagnoses of: chronic pain, myofascial pain syndrome of the cervical spine, thoracic and lumbar spine.
16Finally, in my view, Dr. Yim’s conclusion that the applicant’s pain causes functional limitations in her daily living and employment is unsupported by the other contemporaneous evidence. For instance, Dr. Yim’s physical examination of the applicant was largely unremarkable, albeit there was tenderness in the neck/back noted and a positive vertex compression test result on the right side. However, Dr. Yim did not explain how he arrived at his conclusion that the applicant had functional limitations as a result of the accident, other than stating it in his report. Furthermore, the records of the applicant’s family physician’s office also do not support Dr. Yim’s conclusion. As noted above, the applicant only attended once, and no functional limitations were noted by Dr. Ko. Therefore, I am not persuaded by the s. 25 chronic pain assessment report of Dr. Yim.
17In conclusion, the applicant has not met her onus to prove that she suffered from chronic pain with functional impairments, warranting removal from the MIG.
The applicant is not removed from the MIG on the basis of a psychological impairment
18The applicant has failed to prove on a balance of probabilities that she suffers from a psychological impairment, thus she remains within the MIG.
19Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that she suffered a psychological impairment and not just psychological symptoms or sequelae of a minor injury.
20The applicant submits that she has developed post-traumatic headaches and concentration problems, difficulty sleeping, depression, anxiety, and symptoms of post-traumatic stress disorder. Once again, the applicant relies solely on the s. 25 report of Dr. Yim, where she was diagnosed with: major depressive disorder, generalized anxiety disorder, post-traumatic stress disorder, and specific phobia.
21Meanwhile, the respondent submits that the applicant did not report any psychological complaints to Dr. Drakshan’s office, and that the psychological diagnoses provided by Dr. Yim are outside the scope of his expertise.
22I find that the applicant has fallen far short of proving that she has a psychological impairment as a result of the accident. The only evidence that the applicant has to support a psychological impairment is a s. 25 report by Dr. Yim, which I find to be unpersuasive evidence of a psychological impairment. As noted above, Dr. Yim diagnosed the applicant with various psychological impairments, however, there is no evidence to support this finding, aside from the report itself. Indeed, there are no contemporaneous records documenting any psychological complaints or impairments to the applicant’s family physician, or any other treating practitioner. Thus, the applicant has not satisfied her onus to prove that her injuries warrant removal on this basis.
23As I have found the applicant’s injuries fall within the MIG, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary.
24Interest is not payable pursuant to s. 51 of the Schedule as there are no overdue amounts owing.
ORDER
25For the reasons outlined above, I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. She is not entitled to the treatment plans, nor interest.
iii. The application is dismissed.
Released: April 30, 2024
Tanjoyt Deol
Adjudicator