Citation: Dai v. Allstate Insurance Company of Canada, 2024 ONLAT 22-003668/AABS
Licence Appeal Tribunal File Number: 22-003668/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:
Xiao Ping Dai
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Dominique Setton
APPEARANCES:
For the Applicant: Yu Jiang, Paralegal
For the Respondent: Allstate Insurance Company of Canada, Ian D. Kirby, Counsel
HEARD: In Writing
OVERVIEW
1Xiao Ping Dai, the applicant, was involved in an automobile accident on February 8, 2021, 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, Allstate Insurance Company of Canada and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
- 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”)?
- Is the applicant entitled to $3,989.56 for physiotherapy services, proposed by Total Recovery Rehab Centre (TRRC) in a treatment plan/OCF-18 (“plan”) submitted on May 11, 2021, and denied on May 13, 2021?
- Is the applicant entitled to $200.00 for doctor’s fee, submitted on a claim form (OCF-6) on January 18, 2022, and denied on January 27, 2022?
- Is the applicant entitled to $130.41 for prescription medication, submitted on an OCF-6 on March 03, 2022, and denied on March 10, 2022?
- Is the applicant entitled to $2,200.00 for psychological assessment, proposed by Somatic Assessment and Treatment Clinic in a plan submitted on September 17, 2021, and denied on October 05, 2021?
- Is the applicant entitled to $1,300.00 for chiropractic services, proposed by TRRC in a plan submitted on April 12, 2022, and denied on May 03, 2022?
- 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?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the applicant is not entitled to the any of the treatment plans, interest, or a special award.
ANALYSIS
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500 Minor Injury Guideline limit?
4I find the applicant did not meet her onus to establish that removal from the MIG is warranted. I find the applicant’s injuries are predominantly minor in nature as defined in s. 3 of the Schedule and therefore subject to treatment within the $3500.00 MIG limit.
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines “minor injury” as “one or more sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes clinically associated sequelae to such an injury.”
6An injured 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 or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
7The applicant submitted that she suffered injuries to her neck, back and waist, that she suffers from pain as a result of the accident, as well as psychological impairments and as a result she should be removed from the MIG.
8The applicant consulted with Total Recovery Rehab Centre following the accident, on April 12, and May 11, 2021, because of pain in her neck and lower back, and reduction in activities of daily living. The physiotherapist noted that due to her history with diabetes the recovery time for her injuries would increase. In his notes he concluded she should not be in the MIG.
9On September 17, 2021, she consulted with Dr. Sharleen McDowall at Somatic Assessments and Treatment Clinic to address her psychological impairments. After conducting a pre-screening report, Dr. McDowall provided an opinion that the applicant was suffering from post-accident psychological impairment and that her injuries should not fall within the MIG, and she should undergo a psychological assessment. After the initial interview with Dr. McDowall, the doctor’s impressions were that the applicant suffered adjustment disorders, nightmares, irritability and anger, and non-organic sleep disorders.
10The respondent submitted that the applicant did not seek out emergency medical treatment following the accident, and although the applicant visited her family doctor on several occasions after the motor vehicle accident, it wasn’t until the 3rd visit of January 18th, 2022, that the motor vehicle accident was mentioned, almost one year after the accident. In her interview with the respondent’s psychologist Dr. Spivak, on December 1, 2022, she explains that it wasn’t until two or three days after the accident that she started to feel any pain, which I find reasonably explains why she did not seek out emergency medical care after the motor vehicle accident.
11On April 1, 2021, the applicant visited her family doctor, Dr. Cheng, one and a half months after the motor vehicle accident, yet, the applicant doesn’t mention the motor vehicle accident, but mentions lower back pain that improves throughout the day and constipation. The doctor renews medication for diabetes, which is the main reason for this visit.
12On January 18, 2022, the applicant was again assessed by Dr. Cheng, who noted that the applicant complained about chronic lower back pain, due to a MVA accident from the previous spring. The applicant reported she was only getting three hours of sleep during the night, and had full range of motion, with no spine tenderness but there is some muscle tenderness. He also assessed her mental condition and determined that she is “linear and coherent”, not revealing any delusions, or suicidal ideations, and her insight and judgement remain intact. He prescribed medication for insomnia and to continue physiotherapy and recommended Tylenol or Advil for the muscle pain. There is no indication from the applicant’s doctor that the applicant suffers from any documented pre-existing injury, or any condition combined with compelling medical evidence stating that the condition precludes recovery if she is kept within the confines of the MIG.
13Furthermore, as a result of the applicant’s insurance claims for treatment, the applicant was seen by the respondent’s examiner, Dr. Michael Devlin, a physiatrist on September 1, 2021. His report of September 16, 2021, observes that the applicant had acupuncture and massage treatment, but she was not provided with any chiropractic treatment, nor was she prescribed any exercises.
14It was noted that she complained of neck pain “a little bit” and intermittent low back pains and self reported being able to engage in activities of daily living, such as cooking, housecleaning, laundry, and grocery shopping.
15A physical examination confirmed full range of movement for the neck, that was pain-free, and the full range of motion for the back with some complaint at the end range. All in all, the physical examination showed the applicant as normal, with no prescriptions or medications needed.
16For these reasons, the respondent’s position is that the applicant sustained soft tissue injuries of the sprain and strain type, as defined by the s. 3(1) definition of minor injury.
17The applicant was also seen by Dr. Karen Spivak, psychologist, on December 1, 2021, also at the request of the respondent. A report dated December 15, 2022, was provided.
18The psychologist noted that the applicant did not present as overly depressed, anxious, or agitated, that the neck pain and dizziness had resolved, and she was sleeping better. She had more energy and was enjoying things better. She reported that in the last two months, she was having difficulty with sleeping, but it appeared to the psychologist that this was unrelated to the accident.
19The conclusion was that that the applicant did not suffer from a psychological impairment, or serious emotional difficulties as a result of the motor vehicle accident. In her diagnosis, Dr. Spivak states that “Ms. Dai does not meet the full criteria for a DSM-5 diagnosis. The claimant does not present with the constellation of symptoms consistent with a Mood, Anxiety Adjustment or Somatic Symptom Disorder.” In her conclusions, she states that a psychological assessment or counselling were not warranted.
20I find therefore on a balance of probabilities, that the applicant did not meet her onus that she should be removed from the MIG.
Is the applicant entitled to the disputed treatment plans?
21As I have found that the applicant sustained a minor injury and is subject to treatment within the MIG, it is not necessary to evaluate whether the disputed treatment plans are reasonable and necessary as a result of the accident. The plans are not payable.
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?
22As no benefits have been unreasonably withheld or delayed, there is no award payable.
Is the applicant entitled to interest on any overdue payment of benefits?
23As there are no payments due, there is no interest due.
ORDER
24The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore, the applicant is subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline. The applicant is not entitled to the disputed treatment plans. No interest is owing and no award is payable. The application is dismissed.
Released: August 15, 2024
__________________________
Dominique Setton
Adjudicator