Licence Appeal Tribunal File Number: 22-004873/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:
Peter Seto Soo-Hoo
Applicant
and
Jevco Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brett Bell
APPEARANCES:
For the Applicant:
Peter Seto Soo-Hoo, Applicant Donata Di Iorio, Counsel
For the Respondent:
Thomas Petrella, Counsel
HEARD: In Writing
July 4, 2024
OVERVIEW
1Peter Seto Soo-Hoo (the “applicant”), was involved in an automobile accident on March 18, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by Jevco Insurance Company (the “respondent”), based on its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”).
3The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
Section 20 Time Limit
4The following preliminary issue is to be decided:
i. In their submission, the respondent submits that the period the applicant is entitled to claim and receive accident benefits expired on March 12, 2023, pursuant to s. 20 of the Schedule.
ii. Section 20(1) of the Schedule states that, subject to subsection (2), no medical, rehabilitation and attendant care benefit is payable for expenses incurred,
i. more than 260 weeks (five years) after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident; or
ii. after the insured person’s 28th birthday, in the case of an insured person who was under 18 years of age at the time of the accident.
iii. The accident took place on March 18, 2018. At the time of the accident, the applicant was 54 years old. There has been no determination that he sustained a catastrophic impairment, and he did not purchase optional benefits.
iv. In their reply to the respondent’s submission, the applicant states that the duration of medical, rehabilitation and attendant care benefits is irrelevant as there are no limitation issues with respect to any of the issues in dispute.
RESULT OF THE PRELIMINARY ISSUE
5I find that there is no evidence that the application or the treatment plans were submitted by the applicant after the March 12, 2023 deadline.
6According to documentation submitted by the applicant, the application was filed on April 22, 2022. The two treatment plans in dispute were submitted on August 25, 2021 and June 20, 2022 respectively. The respondent claimed the application was time-barred but did not provide further details or documentation to support their assertion.
7In Han v Wawanesa Mutual Insurance Company, 2023 CanLII 1465 (ON LAT), the Tribunal found that when an insurer denies a treatment plan, the applicant has two years under s. 56 of the Schedule to file an application with the Tribunal, a timetable that supersedes the 260-week timeline in s. 20(1). So even if the respondent did provide evidence to support their position, the applicant filed with the Tribunal within the required two year timeframe.
8I find that the applicant’s application was submitted within the time limitations established under s. 20 of the Schedule. The application is not time-barred and the procedural issue raised by the respondent is dismissed.
SUBSTANTIVE ISSUES
9The remaining 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 MIG?
ii. Is the applicant entitled to $2,456.16 for chiropractic assessment and treatment, proposed by Life Point Medical Inc. in a treatment plan/OCF-18, submitted August 25, 2021?
iii. Is the applicant entitled to $2,200.00 for chronic pain assessment, proposed by Prime Health Care Inc. in a treatment plan/OCF-18, submitted June 20, 2022?
iv. 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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
10I find that:
i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. As a result, he remains within the MIG and its $3,500.00 limit on treatment.
ii. It is not necessary to determine whether the disputed treatment plans are reasonable and necessary as a result of the accident. As no benefits are payable, no interest is owing.
iii. The applicant is not entitled to an award.
ANALYSIS
The Minor Injury Guideline (“MIG”)
11Section 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 in accordance with the MIG. 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.”
12An 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 that demonstrates the condition precludes recovery if they confined to the MIG. In addition, the Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
13The burden is on the applicant to show, on a balance of probabilities, that their injuries are outside of the MIG.
14The applicant submits that his ongoing neck, shoulder, rib and back pain have become chronic in nature, and five years after the accident, he has not returned to his pre-accident level of functioning or health. The applicant also states that he suffers ongoing chronic pain and psychological injuries resulting from the accident. The applicant submits that he should be removed from the MIG and is entitled to treatment beyond the $3,500.00 MIG limit.
15The respondent counters that the applicant sustained soft-tissue sprain/strain injuries as a result of the accident, all of which fall under the definition of minor injuries in the Schedule. Further, the respondent holds that there is no evidence of chronic pain with functional impairment that would warrant the applicant’s removal from the MIG.
The applicant remains within the MIG
16I find that the applicant has failed to demonstrate, on a balance of probabilities, that he suffers from injuries or conditions directly related to the 2018 accident that are not predominantly minor in nature as defined in the Schedule. The issues of chronic pain with functional impairment and corresponding psychological injuries are addressed in later subsections. Accordingly, he remains within the MIG and is subject to its $3,500.00 limit on treatment.
17As noted, s. 18(1) of the Schedule defines a “minor injury”. Based on the medical evidence before me, I conclude the applicant’s injuries from the 2018 accident are minor in nature. As noted by the respondent, the CNRs from the walk-in clinic that conducted the initial assessment immediately after the accident were not included in the documentation supporting the applicant’s submission. As a result, I must rely on the OCF-3 dated June 27, 2018 to provide the details of the treatment presumably prescribed by the walk-in physician. However, I am inclined to accept the premise that the initial physician referred the applicant to physiotherapy even without documentation, given the applicant’s family physician, Dr. Szeto, recommended continuing physiotherapy in CNRs dated December 18, 2018.
18I agree with the respondent that the injuries listed in the June 27, 2018 Disability Certificate (OCF-3) and the two subsequently submitted treatment plans (OCF-18s) dated August 11, 2021 (Life Point Medical Inc) and June 20, 2022 OCF-18 (Prime Health Care Inc) are defined as minor injuries in the Schedule. As noted by the applicant, the initial OCF-3 diagnosed the applicant with WAD (Whiplash Associated Disorder) II, rotator cuff strain and rib sprain, while the OCF-18 from Life Point Medical Inc and Prime Health Care Inc also list sprains and strains of the shoulder, neck and back as the injuries suffered by the applicant. These are all injuries that are included in the Schedule’s definition of minor injuries.
19In the reply to the respondent’s submission dated November 24, 2023, the applicant states “‘Rotator cuff syndrome’ and ‘impingement syndrome of the shoulder’ are not minor injuries.” Both injuries were listed on the OCF-18s, yet were not specifically raised by the applicant as arguments for why they should be removed from the MIG. In the reply submission, the applicant does not direct me to any medical evidence or documentation to support the assertion that the two above diagnoses are non-minor. Again, the onus is on the applicant to prove why they should be removed from the MIG.
20I am persuaded by the GP MIG Assessment Insurer Examination (“IE”) report dated September 2, 2022 from Dr. Michael Fung of Seiden Health which concludes that the applicant sustained “minor injuries” in the accident. As part of the MIG assessment, Dr. Fung conducted a full review of the CNRs as well as the submitted OCF-3 and both OCF-18s, giving Dr. Fung a comprehensive summary of the applicant’s case to date. Dr. Fung’s findings are also consistent with the CNRs of Dr. Szeto as well as conclusions in the previous two IE reports submitted by Drs. Zarnett and Goldstein. I was also persuaded by the fact that Dr. Fung had previously conducted an evaluation of the applicant on November 1, 2021 and maintained his previous conclusions in the second IE report after evaluating updated information submitted by the applicant.
21I was particularly persuaded by the conclusions of Dr. Fung regarding the applicant’s claim of lower back pain. In their reply submission, the applicant states that “[t]he Respondent’s assertion that [the applicant] started a more physically demanding job, and his work demands caused his back pain is not factually supported and contradicts the findings in their own s. 44 IE report.” As noted in the IE report and listed in the CNRs of Dr. Szeto, back pain was initially raised by the applicant during an appointment on August 17, 2019, almost a year and a half after the accident. The comments from the applicant during that appointment in the CNRs clearly indicate the back pain is directly related to the applicant’s work as a truck driver. In his IE report, Dr. Fung notes that the applicant incorrectly concludes that since he did not have back pain prior to the accident, the back pain he now suffers with must be related to the accident. I agree with Dr. Fung’s conclusion that the applicant’s rationale is not consistent with the file documentation from Dr. Szeto and that the applicant’s back pain is not related to the accident. However, even if it were, there is nothing in the assessment of that injury to suggest that it is anything other than a "minor injury".
22I am not persuaded by the applicant’s position that the various IE reports, particularly that of Dr. Fung, failed to consider the opinion of the health practitioners who examined and treated the applicant. It is clear by the detailed notes reproduced in the IE reports in question that the authors not only reviewed this documentation, but understood the diagnoses provided by the applicant’s health practitioners. The applicant provided minimal medical evidence to support their claim to the contrary, nor does he articulate the specific differences in medical opinions he believes exists.
23In the initial application and the reply submission, the applicant states it is noteworthy that the respondent paid $17,600 in income replacement benefits (IRB) to the applicant, yet fails to articulate why it is significant or how it strengthens the applicant’s claim. Without a detailed explanation of his position on this issue, it is impossible to factor this claim in my decision.
24For these reasons, I find that the applicant suffered minor injuries from the 2018 accident as defined by s. 3(1) of the Schedule.
Failure to Comply with Section 38(8)
25I find that the respondent’s denial letters did comply with the notice requirements of s. 38(8) and the applicant was not unreasonably denied treatment.
26The applicant submits that the respondent made errors in the denials of the applicant’s submitted treatment plans by failing to comply with the notice requirements of s. 38(8) of the Schedule.
27The applicant cites T.F. v. Peel Mutual Insurance Company 2018, CanLii 39373 (ON LAT) (“T.F.”). In their decision, the adjudicator found that “[a]n insurer’s ‘medical and any other reasons’ should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.”
28The applicant argues that because the respondent’s denial of the applicant’s treatment plans did not include the required details on why the treatment plans were denied, the respondent was not in compliance with s. 38(8) of the Schedule. As a result, the applicant has been unreasonably denied treatment, and unable to achieve maximal medical recovery.
29Section 38(8) of the Schedule states that an insurer “shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan…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.”
30Per the decision cited by the applicant, the adjudicator in T.F. stated (emphasis added): “Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.”
31The respondent’s denial letter dated August 9, 2021 details that the respondent did not find compelling evidence in the Clinical Notes and Records (“CNR”s) of Dr. Kenneth Szeto, the applicant’s family physician, and that the respondent was requesting the applicant submit to an evaluation from an independent health practitioner to “evaluate the severity and nature of your injuries to help in determining if you should receive treatment either within or outside of the definition of a minor injury.”
32I find an unsophisticated person could read the respondent’s denial letter and understand why the treatment plan was being denied and the reasons for why the respondent was requesting an evaluation under s. 44 of the Schedule. There is no requirement that the applicant to agree with the decision; s. 38(8) only provides that an insurer share sufficient reasons for their decision.
33Based on the evidence before me, I find that the respondent did comply with the requirements of s. 38(8) and that this section does not form the basis for an entitlement to benefits claimed.
Chronic Pain
34I find that the applicant’s claims to suffer from chronic pain due to the 2018 accident have not been supported by medical evidence. Rather, the objective medical evidence demonstrates that the applicant suffered minor injuries from the accident itself and the ongoing pain is related to injuries suffered before the accident. There is minimal indication that any injuries related to the 2018 accident progressed to chronic pain with a functional impairment.
35Chronic pain with functional impairment is not included in the minor injury definition and a finding that the applicant sustained chronic pain with functional limitations as a result of the accident would permit them to seek treatment outside of the MIG beyond the $3,500.00 funding limit. In this case, it is critical that the applicant establish that any chronic pain with functional limitations is a result of the 2018 accident, not as a result of any previous injuries unrelated to that accident.
36The applicant’s history of previous injuries to his shoulders and neck are well documented and I am not persuaded that the injuries listed as part of his application are new injuries sustained in the 2018 accident, rather than injuries the applicant has been living with for several years prior to the accident.
37In his application, the applicant lists his pre-existing conditions as a right shoulder rotator cuff decompression in 2004, bilateral rotator cuff tendinitis, left shoulder tendinopathy in the supraspinatus tendon with arthritis, and right shoulder was suspicious for a partial thickness tear. He suffered a workplace injury in 2002 with related surgery in 2004. The applicant has been treating this ongoing pain for several years, including the regular use of strong pain medications.
38The applicant also suffered a notable workplace injury to his shoulder on March 13, 2015. In an Orthopaedic Surgery Assessment Report dated November 11, 2016, Dr. Greg Jaroszynski notes that the applicant “was trying to use a wrench and that flared up his “tendinitis”. This directly contradicts the applicant’s assertion that he has “never” experienced any work-related injury prior to the 2018 accident. In a form submitted by Dr. Szeto on March 30, 2016, he notes the applicant was suffering from severe recurrent rotator cuff tendinitis. In a functional abilities evaluation from chiropractor David Hytman dated February 25, 2019, the applicant “indicates that he was experiencing daily shoulder pain in the time leading up to the subject motor vehicle accident.”
39Further, at the time of the accident, the applicant was being retrained by the WSIB to move from his job as a truck driver to a data management position, which would allow the applicant to be take on more sedentary work. Additional evidence that long before the 2018 accident, the applicant was clearly managing similar injuries to what is being claimed in his application to the Tribunal.
40I am also not persuaded by the applicant’s position that the diagnosis of chronic pain from the 2018 accident contained in the OCF-3 or OCF-18s were informed by the applicant’s full medical history. In Part 8 of the OCF-3, physiotherapist Karen Iwasaki of Altum Health indicates it is “Unknown” if the applicant had any injury prior to the 2018 accident that affected his ability to perform such activities as work, housekeeping or attending school. Given the applicant’s extensive history of similar injuries and with minimal medical evidence to the contrary, it can be reasonably assumed from Ms. Iwasaki’s answer that she was not informed about any previous injury, regardless of whether it would have changed her diagnosis.
41Similarly, in the OCF-18 from Life Point Medical Inc, in response to the question of whether, prior to the accident, the applicant had any injury that could affect their response to treatment of his current injuries, there is no mention of any previous injury, only that the applicant is being treated for diabetes, cholesterol and hypertension. I will note that Dr. Chad Hefford of Prime Health Care Inc did note some of the applicant’s previous injuries in his OCF-18, specifically the 2004 bilateral rotator cuff surgery and chronic bilateral shoulder and lower back pain, but then answered “Unknown” to the question of whether the applicant was receiving treatment for this injury in the past year.
42Absent direct evidence that these health practitioners were provided with the applicant’s full medical history, I am not persuaded that their diagnosis of chronic pain is due to the 2018 accident and not from any of the previous injuries sustained by the applicant.
43In contrast, I am persuaded by the September 9, 2022 IE report of Dr. Fung which had the benefit of being informed by the applicant’s full medical history, including CNRs from his family physician and previous medical evaluations conducted before the applicant’s 2018 accident. Dr. Fung concluded that based on the available file documentation, the applicant sustained soft tissue injures over his neck and bilateral shoulder regions superimposed on pre-existing rotator cuff symptoms. Dr. Fung goes on to state that those injuries have likely resolved at the time of the assessment, and that his pre-existing conditions will likely influence the applicant’s continued reporting of symptoms. I agree with his prognosis, which is consistent with the previous IE reports as well as the CNRs from Dr. Szeto.
44Even though I am not persuaded that any chronic pain experienced by the applicant is a direct result of the 2018 accident, I will nevertheless evaluate whether the chronic pain reported by the applicant would warrant the applicant being removed from the MIG.
45The American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) provide criteria for evaluating a chronic pain condition. The AMA Guides state that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
46While the AMA Guides are not a definitive test to determine if someone suffers from chronic pain and the Tribunal is not bound by them, they nevertheless provide a helpful tool in evaluating claims of chronic pain.
47The Tribunal has previously ruled (V.G. v. Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT)) that persistent or chronic pain alone is not enough for an application to fall outside of the MIG; it must be accompanied by functional impairment severe enough to limit the applicant’s ability to work and/or daily life.
48There is minimal medical evidence that the injuries sustained by the applicant would meet three of the six criteria for chronic pain provided by the AMA Guides. The applicant has not submitted any medical evidence of abuse of or dependence on prescription drugs or other substances as result of the accident or an excessive dependence on health care providers or family members. Further, the applicant has not indicated he is withdrawing socially or lacks the physical capacity to pursue activities related to work, family or recreation.
49Using the AMAs Guides’ criteria as a guideline, I am not satisfied that the injuries reported by the applicant would support a diagnosis of chronic pain with functional impairment which would allow the applicant to be removed from the MIG.
Psychological Injuries
50I find there is insufficient medical evidence to support a claim that the applicant suffers from psychological injuries as a result of the accident, which would warrant removal from the MIG.
51Psychological impairments are not included in the minor injury definition and a finding that the applicant sustained psychological impairment as a result of the accident would permit them to seek treatment outside of the MIG. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”
52Based on the documentation before me, the applicant has not directed me to evidence that a qualified medical practitioner, in particular the applicant’s family physician, Dr. Szeto, diagnosed the applicant with a psychological disorder or made a referral to a psychological resource for diagnosis or treatment. The applicant has not indicated they are taking any prescribed medication to treat anxiety or depression.
53The psychological and sleep disorder diagnosis was offered by Dr. Rudi Chan, a chiropractor. In their reply submission, the applicant cites Z.J. v. Aviva Insurance Company of Canada, 2020 ONLAT 18-012030/AABS, which notes that a health practitioner such as chiropractor is trained to recognize conditions beyond their scope of practice and recommend assessments be conducted by qualified health practitioners. However, I have not been directed to any such assessment recommendation from Dr. Chan. Further, the applicant did not include a psychological assessment or treatment from a qualified professional as part of their application to the Tribunal.
54As noted by the respondent, in Fonseca v Dominion of Canada General Insurance Company (Travelers), 2023 CanLII 13070 (ON LAT), the Tribunal has previously ruled that as a chiropractor is not a physician, and they do not have the expertise to diagnose symptoms involving emotional state or sleep disorders. I agree with the adjudicator’s ruling in that case and apply the same reasoning to this decision.
55Based on the submitted medical evidence before me, I find that the applicant has not demonstrated that he suffers from a psychological injury that would remove him from the MIG.
CONCLUSION
56For the reasons detailed above, I find that the applicant suffered minor injuries in the accident. He has failed to demonstrate chronic pain with a functional impairment or psychological injuries which would warrant removal from the MIG.
57As a result, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.
58As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
Award
59I find that the applicant is not entitled to an award as he has the onus to prove on a balance of probabilities that the respondent unreasonably withheld or delayed payments and I have not been persuaded that it was unreasonably withheld or delayed.
60The applicant submits that the respondent chose to ignore medical evidence and keep him in the MIG and because the respondent failed to approve the MIG limits. The respondent submits that it had a reasonable basis to determine that the applicant was not entitled to benefits claimed as a result of the IE assessments conducted by Drs. Zarnett, Goldstein and Fung.
61After reviewing the party’s submissions and evidence, I am not persuaded that there was any unreasonable withholding or delaying the payment of benefits on the part of the respondent that could be considered imprudent, inflexible, or unyielding as characterized by the applicant. The respondent relied upon a medical opinion that the applicant’s injuries were predominantly minor.
ORDER
62The application is dismissed and I find that:
i. The applicant sustained a predominantly minor injury as a result of the accident. He remains subject to the MIG and its $3,500.00 limit.
ii. It is not necessary to determine whether the disputed treatment plans are reasonable and necessary as a result of the accident. As no benefits are payable, no interest is owing.
iii. The applicant is not entitled to an award.
Released: August 16, 2024
__________________________
Brett Bell
Adjudicator