Licence Appeal Tribunal File Number: 22-004337/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:
Xiu Lan Li
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Emily Schatzker, Counsel
HEARD: In Writing
May 24, 2024
OVERVIEW
1Ms. Xiu Lan Li (the “applicant”) was involved in an automobile accident on September 9, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Co-operators General Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from October 8, 2021, to date and ongoing?
iii. Is the applicant entitled to $2,093.00 for physiotherapy treatment, proposed by Vinita Patel submitted February 23, 2022, and denied March 3, 2022?
iv. Is the applicant entitled to $18.63 for medication, proposed by Dr. H. Liu submitted January 6, 2022, and denied January 31, 2022?
v. Is the applicant entitled to $2,200.00 for physiotherapy assessment, proposed by Sharleen McDowall submitted January 26, 2022, and denied February 7, 2022?
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
3I find that:
i. The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG.
ii. The applicant has failed to demonstrate a a complete inability to carry on a normal life and as such is not entitled to NEB.
iii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, if incurred, as such benefits are deemed reasonable and necessary 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
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 minor injuries. 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 it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological impairment may warrant MIG removal.
6The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant submits that she should be removed from the MIG due to pre-existing anxiety, chronic pain and psychological impairments.
7The applicant argues that she should be removed from the MIG, as she suffers from chronic pain because of the accident. The applicant also submits that she suffers from a severe psychological impairment because of the accident.
8The respondent argues that the applicant should not be removed from MIG as there is no evidence beyond the applicant’s subjective reporting that she suffers any impairment.
The applicant remains within the MIG
9I find that the applicant has not met her onus and demonstrated that she suffers from chronic pain with a functional impairment, or a psychological impairment to warrant removal from MIG.
The applicant does not suffer from chronic pain with a functional impairment.
10I do not find that the applicant has met her burden of proof to show she suffers from chronic pain with a functional impairment.
11An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological impairment may warrant MIG removal.
12The applicant submits that she suffers from chronic pain because of the accident. She relies on the Clinical Notes and Records (CNRs) of Dr. Liu.
13The respondent submits that the applicant has not provided compelling medical evidence to prove on a balance of probabilities that she has developed chronic pain with a functional impairment.
14In review of the clinical notes and records (“CNRs”) of Dr. Liu, I am only able to find one reference to the motor vehicle accident, which was nearly three months after the accident, and no follow up or ongoing discussion with her doctor about ongoing issues related to the motor vehicle accident. A physical examination by Dr. Liu on December 7, 2021, notes normal range of motion in neck and shoulders, mild to moderate tenderness in the left upper trapezius muscle, and upper lateral pectoral muscle. No diagnosis was made by the Doctor, beyond a report of localized pain.
15In review of the evidence provided, I do not find that the applicate provien on a balance of probabilities that she suffers from chronic pain with a functional impairment. The CNRs of Dr. Liu, there is not mention of chronic pain, no referrals to a pain clinic, or imaging ordered by the Doctor to help diagnosis chronic pain. Additionally, I find not evidence submitted to show the applicant suffers from a functional impairment due to chronic pain.
Psychological Impairment
22I do not find that the applicant suffers from a psychological impairment.
23An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological impairment may warrant MIG removal.
24The applicant also submits that she should be removed from MIG, because she sustained a severe psychological impairment as a result of the accident. She relies on an OCF-18 by Dr. McDowall, C. Psych, and Mr. Cook, C. Psych Assoc.
25The respondent submits that the applicant met her burden of proof to submit compelling medical evidence that she suffers from a psychological condition.
16A pre-screening report was completed by Mandy Fang, as social worker, under the supervision of Dr. McDowall, C. Psych, on November 10, 2021. This screening was an interview that contained self reported symptoms by the applicant and not psychometric testing was completed. The applicant reported issues with her sleep, cognitive issues, avoiding driving. The screening report offered a recommendation that the client should not fall under MIG.
17A Psychological Report was completed Mr. Cook, on March 3, 2023. This was via video and was a combination of interview and testing. The applicant reported being able to complete her normal activities of daily living and did not make clear that there was any change to them pre and post motor vehicle accident. One note was her report on only able to do light laundry chores and light parcel carrying. The testing shows moderate levels of anxiousness and depression. The Positive Impression Management scale was not elevated. Mr. Cook reports that the applicants highest elevations were on Anxiety and Depressions scales, but did not specifically quantify where she was on the scale in his notes. The applicant did not show any elevation on the Trauma Symptom Inventory 2-A test. She tested above average on the Pain Patient Depression, Anxiety, and Somatization scores. She tested moderately anxious on the Beck Anxiety Inventory test, and moderately depressed on the Beck depression Inventory test. Mr. Cook’s diagnosis was mild depressive disorder single (with anxious distress), and specific (isolated) Phobia (Driver) Anxiety.
18Based on my review of the pre-screening report and the psychological report, I do not find that either proved that on a balance of probabilities that the applicant suffers from a psychological impairment as a result of the accident. The screening report was all self reporting of issues, many of the complaints only appear in this pre-screening, such as the cognitive issues, and no where else in the evidence submitted. In the psychological report, I struggled to understand the findings of Mr. Cook. In his summary he outlines some depression and anxiety, he notes that residual trauma symptoms do not meet diagnostic thresholds for post traumatic stress disorder. In addition, he oulines mild to moderate depressive symptoms. He follows this up by claiming significant impairments in her activities of daily living, even though in her self report, there was little to not change is her activities.
19I am not directed to compelling medical evidence that a psychological impairment warranting removal from MIG is present.
20I find that the applicant does not suffer from a psychological impairment warrating remove from MIG.
Non-Earner Benefits
21Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment because of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a "complete inability to carry on a normal life" as "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident." The Ontario Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which, generally, focuses on a comparison of the applicant's pre- and post-accident activities.
22The applicant relies on an OCF-3, by Dr. Vinita, the pre-screening report completed by Dr. McDowall, and the psychological assessment completed by Dr. Cook, that she has demonstrated a complete inability to carry on a normal life.
23The respondent argues that the applicant has not provided any evidence beyond subjective reporting that she suffers any impairment.
24In review of the OCF-3, by Dr. Patel, the Doctor indicates that the injuries suffered were minor in nature and that it was the Doctor’s expectation that the injuries suffered would resolve in 9-12 weeks. The form also indicates that if the duration is lasted beyond 12 weeks, a disability test would be completed to explain why the limitations have persisted beyond 12 weeks. I do not see in the submitted evidence that this test has been completed. What is missing from the OCF-3 were any notes that indicated how or why Dr. Patel got to her determination of the selections she made in the form.
25The pre-screening report was completed by Ms. Fang, social worker, and supervised by Dr. McDowall on November 10, 2021. The report relies entirely on self reporting and no objective testing was completed to substantiate the clinical opinion and findings. The pre-screening report does address the activities of daily living, nor does it find that the applicant has a complete inability to carry on normal life.
26A psychological assessment was complete by Mr. Cook on March 3, 2023. The assessment was a combination of clinical interview and psychometric testing. In the self reported section of the interview on activities of daily living, she did not indicate in her answers a complete inability to carry on a normal life. To the contrary, she seemed to indicate that little had changed in her normal daily routine.
27Reviewing the submitted evidence, I do not find that the applicant has proven that she has a complete inability to carry on a normal life due to impairment sustained in relation to her motor vehicle accident.
Conclusion
28For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.
29The applicant is entitled to any remaining amounts left in the MIG limit for treatments.
The Treatment Plans and Medication
30As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans and medication in dispute to determine if they are reasonable and necessary because they are beyond the MIG limits.
Non-Earner Benefit
31The applicant has not proven on a balance of probabilities that she has a complete inability to carry on her normal life. As such, she is not entitled to Non-Earner Benefits.
ORDER
32I find that:
i. The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG.
ii. As the applicant has not been removed from MIG, she is not entitled to treatment plans or medications beyond the MIG limits.
iii. The applicant is not entitled to Non-Earner Benefits.
iv. As nothing is payable, there is no special award or interest.
v. The application is dismissed.
Released: July 22, 2024
Robert Rock
Adjudicator