Licence Appeal Tribunal File Number: 22-003438/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:
Zhong Jun Zhao
Applicant
and
The Dominion of Canada General Insurance Company (Travelers)
Respondent
DECISION
ADJUDICATOR:
Leo Demarce
APPEARANCES:
For the Applicant:
Zhong Jun Zhao, Applicant Sareena Samra, Counsel
For the Respondent:
The Dominion of Canada General Insurance Company (Travelers),
Lisa Armstrong, Counsel
HEARD: In Writing
OVERVIEW
1Zhong Jun Zhao, the applicant, was involved in an automobile accident on June 24, 2017, 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, The Dominion of Canada General Insurance Company (Travelers), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2Should the Application by the applicant for Auto Insurance Dispute Resolution, dated March 21, 2022 (“LAT Application”) be dismissed on the basis that it has become vexatious and no longer legally viable given that the applicant does not have capacity to instruct counsel and no Litigation Guardian has been appointed.
3The preliminary issue is denied. I find that the applicant’s counsel initiated the hearing in advance of the applicant’s finding of capacity. I find that the applicant’s counsel had instructions from their client to pursue this application. I also find that despite the applicant’s finding on capacity, that the applicant would still be able to instruct counsel. I also find that this application is legally viable and not vexatious.
ISSUES
4The 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $3,981.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF- 18 (“plan”) that was denied on January 26, 2021?
iii. Is the applicant entitled to $3,981.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan that was denied on October 8, 2021?
iv. Is the applicant entitled to $1,750.00 for hospital services, submitted on a claim form (OCF-6) that was denied on September 10, 2021?
v. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a plan that was denied on January 26, 2021?
vi. Is the applicant entitled to $16,712.81 for CAT assessments, proposed by Somatic Assessments and Treatment Clinic in a plan that was denied on July 9, 2020?
vii. 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?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 MIG limits. As a result, I find that the respondent is not liable for payment of an award or interest.
ANALYSIS
The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule
6I find that the applicant did not provide sufficient evidence to prove that her injuries remove her from the MIG because of the accident.
The Minor Injury Guideline
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.”
8An insured 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. In all cases, the burden of proof lies with the applicant.
9The applicant submits she should be removed from the MIG on three grounds:
i. Chronic pain based on the AMA Guides; and
ii. Potential psychological impairments arising from the accident.
Chronic Pain
10I find that the applicant has not provided sufficient evidence to support her claim that she suffers from chronic pain.
11Chronic pain by itself is not included in the definition of a minor injury in the Schedule. Chronic pain also does not fit into the 12-week functional restoration model of the MIG. The applicant must provide evidence that she is suffering from at least three of the six criteria as set out in the American Medical Association’s Guides (“AMA”) that the Tribunal has adopted as an interpretive tool for chronic pain claims in the absence of a diagnosis.
12The applicant seeks to qualify as having chronic pain by relying on the clinical notes and records (“CNRs”) of Dr. Sit, the applicant’s family doctor. The applicant does not point to evidence of a diagnosis of chronic pain, nor to any of the criteria as set out in the AMA guides. Simply stating that you have chronic pain is insufficient to elevate the applicant out of the MIG.
Potential Psychological impairments arising from the accident.
13The applicant relies on a report dated September 23, 2020 from Dr. Sharleen McDowall that diagnosed the applicant with Major Depressive Disorder with Anxious Distress, and Specific Phobia (Travel).
14The respondent challenged the findings of Dr. McDowall in that the interview and psychometric testing was performed by Mandy Fang who is a social worker and is not qualified to diagnose clients. The report is signed by both Dr. McDowall and Mandy Fang but does not specify whose opinion is being proffered.
15The report from the applicant’s psychological assessment with Dr. McDowall shows that it was conducted by Mandy Fang, a social worker “under the supervision of” Dr. McDowall, psychologist. The treatment plan does not propose that a psychotherapist would be involved in the assessment. Further, the report does not adequately describe the psychotherapist’s involvement, or explain how Dr. McDowall can render a psychological diagnosis in circumstances where it appears unlikely that she ever spoke at any length with the applicant, and appears to have not brought any of her professional skills directly to the assessment of the applicant. As a result, this assessment adds nothing to the understanding of the applicant’s medical condition post-accident and its content, cost and utility is neither reasonable nor necessary and I give this assessment no weight.
16The respondent also relies on two separate psychological assessments; February 8, 2018 with Dr. Talevizadeh, and January 21, 2021 with Dr. Mandel. The reports point to the following:
i. The applicant was never prescribed any medications in relation to a psychological impairment as a result of the accident.
ii. The applicant did not suffer any clinically significant psychological impairments as a result of the accident.
iii. The applicant’s injuries are predominantly minor and are subject to the confines of the MIG.
iv. All medical evidence was reviewed by both s. 44 experts.
17I am not persuaded that the applicant has provided sufficient evidence to indicate that she has been diagnosed with a psychological impairment arising from the accident. I give no weight to the assessment provided by Dr. McDowall and the applicant has not pointed to any other evidence to persuade me that she suffers from a psychological impairment arising from the accident.
ORDER
MIG
18The applicant has not provided sufficient evidence to be removed from the MIG.
19As the applicant has not been removed from the MIG, a determination of whether the treatment plans are reasonable or necessary is not required.
Interest
20Interest does not apply on the payment of any overdue benefits pursuant to s. 51 of the Schedule as there are no benefits due.
Award
21The applicant sought an award under s. 10 of Reg. 664. Under s. 10. I find there is no basis for an award as there are no benefits due.
22I find that the applicant is not elevated from the MIG and that the MIG benefits have been exhausted so no benefits are due.
Released: August 7, 2024
Leo Demarce
Adjudicator