Citation: Ong v. Cooperators General Insurance Company, 2024 ONLAT 23-001886/AABS

Licence Appeal Tribunal File Number: 23-001886/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:

Kien-Lam Ong

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Jessie V Tran, Paralegal

For the Respondent: Laura Emmett, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kien-Lam Ong, the applicant, was involved in an automobile accident on April 21, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The applicant has raised the following preliminary issue:

i. Were the respondent’s denials of the disputed OCF-18s in compliance with section 38(8) of the Schedule?

The applicant has not proven that denials did not comply with s. 38(8)

3I find that the applicant has not met their onus to prove the respondent’s denials of the OCF-18 forms did not comply with s. 38(8) of the Schedule.

4Section 38(8) of the Schedule states that:

Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

5The applicant submits that the respondent failed to provide medical reasons in the denials as there were no specific details about Mr. Ong’s condition that would be considered minor injuries.

6The applicant has not provided copies of these denial letters as evidence. References are made to passages in the adjuster’s log notes.

7The adjusters log notes are not evidence of what was contained in the denial letters. The applicant has an onus, if alleging that the denials are deficient, to supply these denials as evidence before the Tribunal.

8The respondent submits that the denial letters are clear, reference medical documents, or lack thereof, and identify that the denials are based on the MIG. The respondent further submits that it is well established that the insurer is not a medical facility and therefore not required to provide medical reasons when an applicant has not provided medical evidence to support entitlement, and that a denial that has identified the absence of supporting medical records constitutes sufficient notice.

9As the denial letters were not provided to the Tribunal as evidence, I find that the applicant has not met their onus to prove the denial letters were deficient.

ISSUES

10The substantive 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 limit and in the Minor Injury Guideline (“MIG”)? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $2,900.00 for physiotherapy services, proposed by Pain Rehabilitation Clinic Inc. in treatment plans/OCF-18s (“plans”) submitted on:

i. October 1, 2019;

ii. March 12, 2020;

iii. July 20, 2020; and

iv. November 11, 2020?

iii. Is the applicant entitled to the following assessments proposed by Pain Rehabilitation Clinic Inc.:

v. $2,200.00 for a social work assessment, proposed in a plan submitted on October 7, 2020; and

vi. $2,200.00 for a psychological assessment, proposed in a plan submitted on March 5, 2021?

iv. Is the applicant entitled to $200.00 for completion of a disability certificate/OCF-3, proposed by Pain Rehabilitation Clinic Inc. in a plan submitted on July 21, 2020?

v. Is the applicant entitled to other goods and services, proposed by Pain Rehabilitation Clinic Inc. in the following amounts:

vii. $2,900.00, proposed in a plan submitted on January 29, 2021;

viii. $2,900.00, proposed in a plan submitted on June 9, 2021;

ix. $2,900.00, proposed in a plan submitted on October 13, 2021;

x. $2,900.00, proposed in a plan submitted on October 19, 2021;

xi. $200.00, proposed in a plan submitted on May 10, 2021; and

xii. $1,500.00, proposed in a plan submitted on March 19, 2021?

vi. 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?

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

RESULT

11The applicant has not proven an injury which warrants removal from the MIG.

12The applicant is not entitled to any of the disputed treatment plans, an award under s.10 of O.Reg 664 or interest.

13This application is dismissed.

PROCEDURAL ISSUES

The applicant did not exceed the ordered page limits

14In an order released August 18, 2023, the Tribunal set the page limit for initial submissions at 15 pages. I find that both the applicant and the respondent complied with this page limit.

15The respondent submits that the applicant is in breach of this page limit as they have included a “Tab A – Facts” which is 4 pages. The respondent submits that this tab should be included in the written submission page limits.

16I decline to address this. “Tab A – Facts” is not referenced in connection to any of the issues in dispute. As my attention was not drawn to it, I will not be considering it.

ANALYSIS

The applicant’s injuries are within the Minor Injury Guideline

17I find that the applicant has not proven injuries which warrant removal from the MIG.

18An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1). The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.

19In addition, pursuant to s. 18(2), the applicant may be removed from the MIG if 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 applicant has not demonstrated a pre-existing condition as outlined in s. 18(2) of the Schedule

20I find that the applicant’s pre-existing condition does not warrant removal from the MIG.

21The applicant submits that clinical notes and records of Dr. H. Vo, the applicant’s family physician, show that the applicant was suffering from chronic musculoskeletal issues relating to his knee, back and neck before the accident. The applicant further submits that clinical notes and records from Dr. Wong, physiatrist, show that these pre-existing conditions were aggravated by the accident.

22The respondent notes that it is not enough to simply have a pre-existing condition that was exacerbated by the accident, but there must be compelling medical evidence stating that the condition precludes maximal medical recovery within the confines of the MIG.

23I agree with the respondent’s position. While the applicant has made submissions that there is a documented pre-existing condition, and that the condition was exacerbated by the accident, there is no reference to the second part of the legal test. There were no submissions made which referenced compelling medical evidence stating that the condition precludes recovery within the confines of the MIG.

24Section 18(2) requires that both conditions of the test be satisfied, and the applicant has not addressed the second part.

25Therefore, I find that the applicant has not proven they meet the criterial for MIG removal in accordance with s. 18(2) of the Schedule.

The applicant has not proven a psychological impairment as a result of the accident

26The applicant has not proven a psychological impairment which warrants removal from the MIG.

27The applicant relies on an assessment conducted by Dr. J. Enright, psychologist on July 14, 2021. In this assessment Dr. Enright diagnoses the applicant with major depressive disorder, insomnia, posttraumatic stress disorder and specific phobia – vehicle passenger/driver.

28The respondent submits that Dr. Enright’s assessment be given limited weight as Dr. Enright didn’t conduct a thorough document review, and Dr. Enright’s assessment is not corroborated by the contemporaneous medical records submitted as evidence.

29I give minimal weight to Dr. Enright’s findings. Dr. Enright reviewed four pain diagrams and MRI results. He did not review any of the available clinical notes and records from the applicant’s family physician, the applicant’s physiatrist, or any other clinician the applicant had seen.

30Having reviewed the clinical notes and records of Dr. Nhan, the applicant’s family physician at the time of the accident, I find that the applicant has not reported any psychological symptoms to Dr. Nhan.

31I note from reviewing Dr. Nhan’s notes that the applicant did not report any injuries from the accident until August of 2019. There are also no ongoing references made to the accident.

32I find that the applicant has not proven a psychological impairment as a result of the accident.

The applicant has not proven chronic pain with a functional impairment

33I find that the applicant does not suffer from chronic pain with a functional impairment which would warrant removal from the MIG.

34The applicant submits a chronic pain assessment conducted on November 21, 2019 by Dr. H. Ta, anesthesiologist. In his report Dr. Ta diagnoses the applicant with chronic pain syndrome.

35The respondent submits that the report of Dr. Ta should be given no weight as the date of loss referenced in the report is May 29, 2018, which is an accident that occurred prior to the subject accident. In the absence of Dr. Ta’s report, the respondent submits that all other medical evidence presented shows that the applicant’s injuries are minor in nature.

36I agree with the respondent. The report of Dr. Ta was commissioned for and references a prior accident. The report has no value in establishing chronic pain relating to the subject accident for this application. This report calls into question the causation of the applicant’s pain, and is the applicant presented no evidence or submissions to tie the cause of the applicant’s pain to the subject accident. In fact, it is well noted by the applicant in their submissions, and Dr. Ta in his report, and in contemporaneous clinical notes and records provided by the applicant’s treating practitioners that the applicant’s pain pre-dated the subject accident.

37I find that the applicant has failed to prove they suffer from chronic pain with a functional impairment as a result of the subject accident.

The applicant is not entitled to the disputed treatment plans

38As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted.

Interest

39As there are no benefits owing, no interest is payable.

Award

40The applicant sought 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.

41The applicant submits that the respondent unreasonably withheld benefits. As I have found that no benefits have been withheld or delayed, let alone unreasonably withheld or delayed, there is no basis on which to consider this award.

42I find that the applicant is not entitled to an award under s.10 of Reg 664.

ORDER

43For the reasons above, I find that:

i. The applicant’s injuries are subject to the Minor Injury Guideline;

ii. The applicant is not entitled to any of the disputed treatment plans;

iii. The applicant is not entitled to an award under s.10 of O.Reg 664;

iv. There is no interest payable; and

v. This application is dismissed.