Citation: Kim v. Economical Insurance Company, 2024 ONLAT 22-008381/AABS

Licence Appeal Tribunal File Number: 22-008381/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:

Sungrae Kim

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Jae Hyon Cho, Counsel

For the Respondent:

Sunjay Mistry, Paralegal

HEARD:

By Way of Written Submissions

OVERVIEW

1Sungrae Kim (the “applicant”), was involved in an automobile accident on March 21, 2018, 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 Economical Insurance Company (the “respondent”) 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 limit? (“MIG”)

2. Is the applicant entitled to $2,500.00 for a orthopedic assessment at Direct Comfort Limited proposed by Amir Owliaei, chiropractor, in a treatment plan (“OCF-18”) dated October 18, 2021?

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

RESULT

3I find that:

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

ii. As the full MIG limits on medical benefits have been exhausted, an analysis of whether the disputed OCF-18 is reasonable and necessary is unwarranted. As no benefits are payable, the applicant is not entitled to interest.

iii. The application is dismissed.

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 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.”

5An 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 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.

6In all cases, the burden of proof lies with the applicant.

7The applicant submits that he has chronic pain and psychological conditions. The respondent argues that the applicant has not met his evidentiary onus to establish that he should be removed from the MIG.

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

8I find that the applicant has not established on a balance of probabilities that he should be removed from the MIG due to chronic pain.

9The applicant submits that he is suffering from constant back and neck pain since the accident. He argues that it is clear from the medical evidence that his injuries have not resolved and have impacted his daily life. To this end, he relies upon the s. 25 orthopaedic medical examination by Dr. Tajedin Y. Getahun, orthopaedic surgeon, dated April 12, 2022, an x-ray of his lumbar spine, dated May 9, 2018, and the clinical notes of records of Jin Clinic.

10In response, the respondent argues that Dr. Getahun’s report should be given little weight as the applicant was not diagnosed with chronic pain syndrome, and any radiculopathy was only suspected but never investigated or proven. Moreover, it argues that the applicant has not established significant functional interference with his daily activities. To support its position, it relies upon the clinical notes and records of Dr. D.Y. Choi, the applicant’s family physician and the s. 44 physiatry report of Dr. Rajka Soric, physician, dated August 18, 2022.

11A chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, see: 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae of a minor injury. Unless the applicant provides evidence that the pain he experiences contains these elements, the pain is sequelae of a minor injury. I find that the applicant has fallen well short of meeting his onus to establish chronic pain with functional limitations.

12First, the records from the applicant’s family physician do not support the applicant’s position that he has constant back and neck pain, which has not resolved to date. Since the accident, the applicant has met with Dr. Choi on three occasions, in the past six years. The last of which was on May 24, 2018 (nearly six years ago). While Dr. Choi noted on March 27, 2018 and April 19, 2018, that the applicant had neck, shoulder, and lower back pain, there is no discussion of whether this pain effects the applicant’s function, or whether it is bearable without treatment.

13In a similar vein, the records from Jin Clinic do not support that the applicant has an ongoing functional limitation as a result of his pain. I acknowledge that the applicant reports ongoing pain throughout these records, however, critically, there is nothing that shows how these symptoms negatively impacted his function or his activities of daily living. It is well accepted law that pain alone in the absence of impairment in function is not sufficient to support removal from the MIG.

14Next, the applicant largely relies on the s. 25 report by Dr. Getahun to support his position that he should be removed from the MIG. In this report, Dr. Getahun diagnosed the applicant with chronic myofascial strain of the cervical spine and lumbosacral spine with non verifiable radicular symptomatology, which he opined does not fall within the MIG. However, I find that this report has little probative value and assign it limited weight for the following reasons.

15First, Dr. Getahun did not discuss the effect of the pain on the applicant’s function or whether it is bearable without treatment.

16Aside from one vague comment, that the applicant’s injuries has resulted in loss of competitive advantage in the workplace, Dr. Getahun does not advise how he arrives at this conclusion, other than just stating it.

17Second, Dr. Getahun’s opinion is not supported by the other contemporaneous medical evidence, like the records of Dr. Choi. As noted above, the applicant only attended three times, and no functional limitations were noted by Dr. Choi.

18Finally, while Dr. Getahun links the results of the x-ray of the lumbar spine (osteoarthritis) to the subject accident, this is not supported by the records of Dr. Choi. Critically, in the May 24, 2018, entry, while Dr. Choi wrote “X-rays” in his records, there is no discussion of whether the results are connected to the subject accident or even what the results were.

19Similarly, Dr. Getahun’s conclusion that the applicant has non verifiable radicular symptomology is also unsupported by the other evidence, like the records of Dr. Choi. In his report, Dr. Getahun provides no explanation on how he arrives to this conclusion.

20In short, where there is no diagnosis of chronic pain syndrome and where the applicant did not engage with any of the six criteria under the AMA Guides that the Tribunal has adopted as a tool for assessing chronic pain claims, I have limited evidence to find that the applicant should be removed from the MIG on the basis of chronic pain. This finding is supported by the dearth of medical evidence, the sporadic complaints to the applicant’s family physician and by the s. 44 report of Dr. Soric, who diagnosed the applicant with minor soft tissue trauma with no residual physical impairment. On the limited medical evidence available, I see no reason to disagree with this opinion.

The applicant is not removed from the MIG on the basis of a psychological impairment

21I find that the applicant has not met his burden of proof to demonstrate that he should be removed from the MIG based on a psychological impairment.

22Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that he suffered a psychological impairment and not just psychological symptoms or sequelae of a minor injury.

23The applicant submits that he has constant fatigue, anxiety, depression, sleep disturbance and loss of energy. He relies upon the records of Jin Clinic to support this.

24The respondent argues that aside from one visit with Dr. Choi in May of 2018, he has not complained of any issues in subsequent visits. As such, it argues that any psychological injuries, the applicant sustained, were minor and resolved quickly and within the MIG. It relies upon the clinical notes and records of Dr. Choi to support its position, and a prescription summary from Costco.

25I agree with the respondent and find that the evidence supports that the applicant sustained psychological symptoms which are a sequelae of a minor injury.

26First, I place little weight on the records of Jin Clinic. I acknowledge that Dr. Min Hung Lee, chiropractor, noted that the applicant has a generalized anxiety disorder in these records. However, in my view, diagnosing psychological conditions is outside of the scope of practice of a chiropractor, and as such, I have placed little weight on this piece of evidence. In any event, Dr. Lee, also noted that the generalized anxiety disorder was to be confirmed by a psychologist, and the applicant has not referred me to evidence that this was done.

27Second, I have reviewed the records of Dr. Choi, which the respondent provided and find that these records do not support that the applicant has sustained a psychological impairment, that warrants removal from the MIG. The records indicate that the applicant has only complained of psychological symptoms to Dr. Choi on one occasion. I acknowledge that on May 24, 2018, Dr. Choi noted in his records that the applicant had a fear of driving and suffered from insomnia, and prescribed Amitriptyline as a result. However, I have not been referred to any additional reports of psychological complaints to his family physician or any referrals for psychological treatment.

28Finally, the prescription summary demonstrates that the applicant last received Amitriptyline in May 2018, which appears to have not been renewed subsequently.

29Based on the foregoing, I find that the applicant has failed to demonstrate that he should be removed from the MIG on the basis of a psychological impairment.

30The Case Conference Report and Order indicates that the MIG limits have been exhausted.

31Given the entire $3,500.00 funding limit under the MIG have been exhausted, no additional analysis is required to determine if the OCF-18 in dispute is reasonable and necessary pursuant to the Schedule.

ORDER

32For the reasons outlined above, I find that:

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

ii. As the full MIG limits on medical benefits have been exhausted, an analysis of whether the disputed OCF-18 is reasonable and necessary is unwarranted. As no benefits are payable, the applicant is not entitled to interest.

iii. The application is dismissed.