Citation: Gao v. Intact Insurance Company, 2024 ONLAT 22-006728/AABS

Licence Appeal Tribunal File Number: 22-006728/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:

BAO CAN GAO

Applicant

and

Intact Insurance Company*

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Saloumeh Baghbani, Counsel

For the Respondent:

David Koots, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Bao Can Gao, the applicant, was involved in an automobile accident on December 20, 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, Intact 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:

1. 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?

2. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Complex Care in a treatment plan dated April 29, 2020?

3. Is the applicant entitled to $4,440.72 for psychological treatment, proposed by Complex Care in a treatment plan dated July 28, 2021?

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

3The applicant confirmed in his submissions that he has withdrawn the issue of a s. 10 award.

RESULT

4I find that:

i. The applicant has not established that his accident-related impairments warrant removal from the MIG.

ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary once incurred, pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

ANALYSIS

Minor Injury Guideline

5Section 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.”

6An 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 any accident-related minor injury 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. In all cases, the burden of proof lies with the applicant.

7The applicant submits that he should be removed from the MIG due to psychological impairment and chronic pain.

The applicant has not established a psychological impairment warranting removal from the MIG

8The applicant submits that he has developed psychological impairments as a result of the accident. He relies on the clinical notes and records (“CNRs”) of his family physician Dr. Lau where the applicant reported anxiety, and a psychological pre-screening report of Dr. Gabidulina, where he was provisionally diagnosed with situational phobia and depressive episode. Finally, the applicant cites a s. 25 psychological report of F. Pariman and Dr. Mrahar dated August 25, 2021, where he was diagnosed with adjustment disorder with mixed anxiety and depressed mood, specific vehicular phobia and subclinical features of PTSD.

9The respondent disputes that the applicant has developed accident-related psychological impairments. It relies on two s. 44 psychological assessment reports of Dr. Douglas Saunders dated October 13, 2020 and October 20, 2021. During both assessments Dr. Saunders found that while the applicant reported some psychological symptoms, he presented with subclinical symptoms that did not meet the criteria for any psychological impairment.

10I agree with the respondent that the applicant has not led sufficient evidence to establish psychological impairments warranting removal from the MIG. Although the applicant references the CNRs of his family physician, in the years post-accident the applicant reported psychological symptoms only once to Dr. Lau despite attending at his office regularly. On March 13, 2020, relatively soon after the accident, the applicant reported feeling worried and Dr. Lau queried whether the applicant was suffering from anxiety. No formal diagnosis was made, and the applicant does not direct me to any other CNR entry where psychological symptoms were discussed. Nor has the applicant directed me to any subsequent entry where the applicant sought psychological treatment from Dr. Lau, or where psychological referrals were made.

11When comparing the s. 25 psychological assessment of Dr. Mrahar to the s. 44 reports of Dr. Saunders, I prefer the respondent’s reports. Dr. Saunders’ finding of subclinical psychological symptoms is consistent with the objective medical record, particularly the CNRs of the applicant’s family physician. Given that the applicant attended Dr. Lau’s office regularly in the years post-accident, I place significant weight on the family physician’s CNRs.

The applicant has not established chronic pain warranting removal from the MIG

12The applicant argues that he has developed chronic pain as a result of the accident. He points to various CNR entries from Dr. Lau where he continued to report back pain for a year post-accident and was prescribed Vimovo and Tylenol with Codeine for pain. The applicant further relies on his reports to various assessors of functional impairments including being unable to return to work, sit or stand for prolonged periods, engage in his activities of daily living or recreational activities. The applicant cites the American Medical Association’s (“AMA”) Guides criteria for a diagnosis of chronic pain to argue that he has developed accident-related pain warranting removal from the MIG.

13I find that the applicant has not met his onus to prove pain of the duration, severity and functionally disabling extent necessary to warrant removal from the MIG.

14Although the applicant cites the CNRs of Dr. Lau, I do not find that they support his claim of ongoing pain past the first six months post accident. In the first six months after the accident, the applicant reported back pain, at times radiating, and was prescribed pain medication. However, after June 18, 2020 despite attending for unrelated matters, the applicant did not again report back pain until December 22, 2020. At this visit the applicant reported a back ache which was “worse” for one month and Dr. Lau cited degenerative disc disease. No pain medication was prescribed.

15The applicant does not direct me to any subsequent CNR entry where ongoing pain was reported or where pain medication was prescribed. There is no reference to any referral to a pain specialist or further treatment for pain symptoms. The applicant continued to attend to Dr. Lau throughout 2021 and 2022, but no further pain complaints were made.

16Moreover, the applicant has not established that he has met three out of the six AMA Guides criteria for establishing chronic pain. There is no evidence of abuse or over-dependence on prescription drugs. The applicant was only prescribed prescription pain medication for the first six months post-accident. Although he points to self-reports to his psychological assessor that he has increased his alcohol consumption, other than this self-report this has not been corroborated elsewhere in the medical record.

17Similarly, the applicant has not led sufficient evidence of excessive dependence on healthcare providers, with no doctor’s visits throughout 2021-2022 for accident-related pain. With respect to physical deconditioning, the applicant does not direct me to any medical evidence that he has suffered from secondary physical deconditioning due to avoidance of physical activity as a result of pain.

18With respect to withdrawal from social milieu including work, although the applicant submits that he was unable to return to his job as a chef until June 2021 due to pain restrictions, I agree with the respondent that there have been inconsistent reports as to the applicant’s return to work. He reported to his family physician on January 7, 2020 that he had returned to work part-time, and on June 18, 2020 that he was back to work, despite the pain. However, he reported to his s. 25 assessors that he was unable to work due to the accident.

19Although the applicant submits that he has sustained psychosocial sequelae after the accident, as previously noted, I preferred the respondent’s psychological IE assessments, which found that the applicant presented with subclinical symptoms that did not meet the criteria for any psychological impairment. As such, I find that the applicant has not led sufficient evidence to establish that he has developed accident-related chronic pain warranting removal from the MIG.

20As I have found the applicant to be within the MIG, it is not necessary for me to consider the reasonable and necessary nature of the treatment plans in dispute.

21In his submissions, the applicant confirms that he has not exhausted the MIG limit of $3,500.00. Pursuant to s. 40(8) of the Schedule, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary once incurred. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

ORDER

22I find that:

i. The applicant has failed to establish that his accident-related impairments warrant removal from the MIG.

ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary once incurred, pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

iii. The application is dismissed.