Choe v. Unifund, 2024 CanLII 4261

Citation: Choe v. Unifund, 2024 ONLAT 21-014748/AABS

Licence Appeal Tribunal File Number: 21-014748/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:

Chong-Cha Choe

Applicant

and

Unifund

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Jae Hyon Cho, Counsel

For the Respondent: Symone Marlowe, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Chong-Cha Choe, the applicant, was involved in an automobile accident on October 11, 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 the respondent, Unifund, 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 a non-earner benefit (“NEB”) of $185.00 per week from November 8, 2019 to date and ongoing?

iii. Is the applicant entitled to $1,261.02 for physiotherapy services, proposed by North York Physiotherapy Clinic in a treatment plan dated submitted September 16, 2021?

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

RESULT

3I find that:

i. The applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG;

ii. The applicant is not entitled to an NEB for the period in dispute;

iii. The applicant is not entitled to the treatment plan in dispute; and

iv. The applicant is not entitled to interest.

Applicability of the Minor Injury Guideline (“MIG”)

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 does not suffer physical injuries that warrant removal from the MIG

8I find that the evidence establishes that the applicant’s physical injuries fall within the minor injury definition.

9The applicant has provided limited submissions as to how her accident-related physical injuries fall outside the MIG. The applicant submits that following the accident she felt immediate pain in her lower back and right side and was taken to Sunnybrook Hospital by ambulance. The applicant’s submissions did not include any hospital or ambulance records.

10Medical records provided by the applicant do not support her claims of physical injuries that would warrant treatment outside of the MIG. The applicant relies on her self-reports of neck, back, shoulder, and foot pain as noted in the orthopedic examination report of Dr. Oleg Safir, orthopedic surgeon, dated February 4, 2020. However, Dr. Safir opined in this report that there was no evidence of any musculoskeletal impairment as a result of the accident, and the injuries sustained were soft tissue in nature. The applicant also relies on the assessment of Mr. D. J. Kim, physiotherapist, dated November 4, 2019, although Mr. Kim records the applicant’s injuries as strain and sprain.

11The respondent submits that the applicant has failed to prove on a balance of probabilities that she sustained a physical injury as a result of the accident that would remove her from the MIG. The respondent relies on the section 44 general practitioner report of Dr. David Mula, general physician, dated October 15, 2021, and his addendum dated July 22, 2022. Dr. Mula opined that the applicant sustained soft-tissue injuries that fall within the MIG.

12After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers physical injuries that would remove her from the MIG. The entirety of the medical evidence before me supports a finding that the applicant sustained minor soft tissue injuries, which fall squarely within the s. 3 definition of a minor injury under the Schedule.

13As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal from the MIG.

The applicant does not suffer psychological injuries that warrant removal from the MIG

14I find that the applicant has not provided sufficient evidence to demonstrate that her psychological impairments justify treatment beyond the MIG.

15An 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 section 3(1) of the Schedule.

16In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

17The applicant submits that as a result of the accident she experiences psychological distress, including fatigue, anxiety, sleep disturbances, and loss of energy. I find these submissions to be unsubstantiated by the evidence.

18The applicant and the respondent both rely on the psychological examination report of Dr. Douglas Saunders, psychologist, dated February 4, 2020. During the examination, the applicant denied any mental health conditions prior to the accident or at the time of the accident, but did report a history of depression over the last five to six years following personal issues. Dr. Saunders opined that the applicant did not meet the clinical criteria for psychological impairment.

19I am not persuaded that the applicant provided any evidence to demonstrate a psychological impairment. Therefore, I find that the applicant has not met her evidentiary onus to demonstrate that she suffers from a psychological impairment that would warrant her removal from the MIG as a result of the accident.

Non-Earner Benefit (“NEB”)

20The test for entitlement to an NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

21Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

22The test for NEB involves a consideration of the applicant’s activities pre- and post-accident, as set forth in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391. It is the burden of the applicant to demonstrate that her life circumstances have changed significantly enough to continuously prevent her from substantially engaging in the activities that she did before the accident.

23It is the applicant’s position that she requires more time and treatment to recover from the seriousness of her injuries and she should be paid at minimum from November 4, 2019, the date of the OCF-3, until February 11, 2020, the date of denial by the respondent. The applicant submits that although she has returned to her regular housekeeping duties, she has not yet resumed babysitting or swimming, which are activities that she regularly participated in before the accident.

24The respondent submits that the applicant was able to perform substantially all of her activities of daily living post-accident and is not entitled to a NEB.

25In support of its position, the respondent relies on the orthopaedic examination of Dr. Safir, and the psychological examination of Dr. Saunders. After the accident, the applicant reported being independent in performing all her chores, including cleaning, cooking, laundry and grocery shopping. The applicant also denied having any additional help and was independent for her ADLs and self-care. Both Dr. Safir and Dr. Saunders opined that the applicant did not suffer a complete inability to carry on a normal life as a result of the injuries sustained in the accident.

26I agree with the respondent, there is insufficient evidence to support a finding that the applicant met the NEB test for the 104-week period after the accident.

27The medical evidence does not identify any functional or physical impairments as a result of any accident-related injuries. Instead, the evidence from the examinations reveals that the applicant returned to her pre-accident and housekeeping activities, without accommodation. As a result, I find that the applicant has not met her onus and did not provide any evidence to support her claim for NEBs as she has not demonstrated a complete inability to carry on a normal life as a result of her accident-related impairments.

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

Interest

29Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

30The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to an NEB for the period in dispute;

iii. The applicant is not entitled to the treatment plan in dispute; and

iv. The applicant is not entitled to interest.