Citation: He v. Co-operators General Insurance Company, 2024 ONLAT 22-003040/AABS

Licence Appeal Tribunal File Number: 22-003040/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:

Jun Hua He

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Ryan Olson, Paralegal

For the Respondent:

Julianne Brimfield, Counsel

HEARD: In Writing

March 2, 2024

OVERVIEW

1Jun Hua He, the applicant, was involved in an automobile accident on June 9, 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 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 limit?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from July 8, 2021, to present and ongoing?

iii. Is the applicant entitled to $4,069.56 for physiotherapy proposed by Total Recovery Reb Centre in a treatment plan submitted October 9, 2021?

iv. Is the applicant entitled to $2,200 for a psychological assessment proposed by Somatic Assessments and Treatment Clinic, in a treatment plan submitted July 2, 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

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 an award or interest.

ANALYSIS

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 MIG has been exhausted.

8The applicant submits that he should be removed from the MIG due to sustained physical and psychological impairments. The respondent submits that the applicant has not provided compelling medical evidence to prove that his injuries fall outside of the MIG.

The applicant did not suffer physical injuries that warrant removal from the MIG

9I find that the evidence establishes that the applicant’s physical injuries fall within the definition of minor injury under s.3(1) of the Schedule.

10The applicant has provided limited submissions as to how his accident-related physical injuries fall outside the MIG. The applicant submits that following the accident he had knee, leg and ankle pain. Medical records provided by the applicant do not support his claim of physical injuries that would warrant treatment outside of the MIG. The applicant relies on self-reports of pain to Dr. Arulanantham Raveendran, family physician, who opined in the clinical notes and records (“CNRs”) the applicant’s pain was a result of a sprain injury. Furthermore, an x-ray of the applicant’s ankle dated June 28, 2021, at Markham Stouffville Hospital found no evidence of a fracture.

11The respondent also relies on the CNRs of Dr. Raveendran, which diagnosed the applicant with soft tissue injuries, and the section 44 physiatry assessment report of Dr. Raymond Zabieliauskas, physiatrist, dated December 28, 2021, which confirmed the applicant’s physical injuries were minor.

12After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that he suffers physical injuries that would remove him 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 definition of a minor injury under s. 3 of the Schedule.

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

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

14I find that the evidence establishes that the applicant’s psychological injuries fall within the definition of minor injury under s.3(1) of the Schedule.

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 he 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 impairment.

17The applicant submits that his psychological injuries after the accident are well documented, relying on his self-reported complaints to Dr. Raveendran, that reference insomnia and nightmares. Furthermore, the applicant relies on the OCF-18, pre-screening report of Dr. Sharleen McDowall, psychologist, dated July 2, 2021. Dr. McDowall opines the applicant suffers from numerous psychological issues including a decrease in memory, anxiety, insomnia, fatigue, low mood, increased irritability, nervousness, fear of vehicles and depression.

18The respondent takes issue with the applicant’s position that his insomnia and nightmares were triggered by the accident. It is the respondent’s position that the psychological complaints in Dr. Raveendran’s CNRs pertain to the applicant’s previous motor vehicle accident of May 2020 accident. The respondent further argues that it already approved treatment plans related to these issues resulting from the May 2020 accident and the applicant attended psychological treatment. The respondent also argues that the pre-screening report of Dr. McDowall is not compelling as her opinion is based solely on the applicant’s self-reporting. Lastly, the respondent submits surveillance evidence from October 2021 and July 2022 of the applicant back at construction or renovation work, driving and lifting.

19While I accept the self-reported psychological symptoms captured in the medical evidence of Dr. Raveendran and Dr. McDowall, I am not persuaded that psychological symptoms listed are sufficient to establish a removal from the MIG. This is because the applicant’s symptoms are absent of corroborating evidence of an actual psychological impairment. The lack of impairment is further supported by the respondent’s surveillance submissions, that reveal the applicant is able to drive and work following the June 2021 accident.

20I am not persuaded that the applicant provided evidence to demonstrate a psychological impairment. Therefore, I find that the applicant has not met his evidentiary onus to demonstrate that he suffers from a psychological impairment that would warrant his removal from the MIG as a result of the accident.

Non-Earner Benefit (“NEB”)

21The 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.

22Section 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.

23The 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 he did before the accident.

24It is the applicant’s position that he has not yet achieved his pre-accident state. The applicant submits that continues to experience the impact of the accident, through physical pain and emotion distress which impairs his ability to complete household tasks and carry out aspects of daily living. The applicant relies on the Disability Certificate, (“OCF-3”), completed by Mr. Ahmed Afifi, physiotherapist, dated June 10, 2021, and the Activities of Normal Life Form (“OCF-12”) dated June 25, 2021. The OCF-3 provides that the applicant’s accident injuries have impacted his activities of daily living. The OCF-12 provides that the applicant avoids driving, has difficult walking and climbing, and requires assistance with personal care tasks.

25The respondent submits that the applicant is not entitled to NEB due to the lack of medical evidence supporting significant impairment, as well as evidence of the applicant’s return to normal employment and daily activities. The respondent relies on the medical evidence of Dr. Raveendran who opined that the applicant sustained soft tissue injuries and did not reference significant functional limitations of the applicant. As well as the medical evidence of Dr. Zabieliauskas who confirmed that the applicant was fully capable of re-engaging in all aspects of his life as he did prior to the accident and without physical restrictions or functional limitations. Lastly, the respondent relies on surveillance evidence of the applicant conducted over five days in October 2021 and two days in July 2022. Both dates depict the applicant participating in construction and or renovation type work, including bending, lifting, driving, climbing, loading and unloading.

26I find that the evidence indicates that within the 104 weeks following the accident, the applicant has been able to engage in all pre-incident activities without significant limitations. I am persuaded by the respondent’s reliance on the medical evidence of Dr. Raveendran and Dr. Zabieliauskas, over Mr. Afifi. The medical evidence is consistent with the totality of the evidence, including the surveillance evidence that the applicant has been able to carry on a normal life, returning to work post-accident, without any apparent limitations. The applicant has not demonstrated that his injuries have significantly interfered with essentially all of his pre-accident daily activities. Lastly, it is well established that an OCF-3 itself is not evidence of a disability.

27As a result, I find that the applicant has not met his onus and did not provide persuasive evidence to support his claim for NEBs as he has not demonstrated a complete inability to carry on a normal life as a result of the 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.

Award

29The 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. The applicant does not provide persuasive evidence that the respondent withheld psychological services. No award is granted.

Interest

30Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

31The 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 an award or interest.