Licence Appeal Tribunal File Number: 21-015732/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:
Eunhee Kwak
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR: Neil Levine
APPEARANCES:
For the Applicant: Eunhee Kwak, Applicant Jae Hyon Cho, Counsel
For the Respondent: Colin MacDonald, Counsel
HEARD: In Writing
OVERVIEW
1The applicant, Eunhee Kwak, was involved in an automobile accident on July 15, 2019 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, Economical Insurance Company, 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $2,505.40 for physiotherapy services, proposed by Wells Clinic Inc. in a treatment plan/OCF-18 (“plan”) submitted July 28, 2020 and denied August 7, 2020?
iii. Is the applicant entitled to $2,144.93 for psychological services, proposed by Meera Joo in a plan submitted November 15, 2020 and denied November 27, 2020?
iv. Is the applicant entitled to $2,195.00 for a chronic pain assessment, proposed by Direct Comfort Ltd. in plan dated December 3, 2021 and denied July 8, 2021?
RESULT
3The applicant has failed to demonstrate that she suffers from either a non-minor injury or the exacerbation of a pre-existing condition as a result of the subject accident that precludes her recovery under the MIG. She remains within the MIG.
4The applicant is not entitled to the treatment plans listed in the application: physiotherapy services, psychological services, and a chronic pain assessment.
ANALYSIS
Applicability of the MIG
5The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. I do not find that to be the case here. The applicant has not proven based on the balance of probabilities that her injuries were not predominantly minor as defined by the Schedule. Furthermore, the applicant did not prove that her pre-accident injuries or conditions preclude a maximal recovery if kept within the MIG.
6Section (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) of the Schedule 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.” An insured “may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule, 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 the insured person is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition have been found to also exceed the definition of minor injury.
7The burden is on the applicant to show, on a balance of probabilities, that her injury falls outside of the MIG.
8The applicant is seeking to be removed from the MIG on four grounds: a partial shoulder tear, pre-existing conditions, chronic pain syndrome and psychological issues. I will examine these separately.
Shoulder Issues
9The applicant submitted as proof of right shoulder pain an MRI from September 1, 2019 that indicated a “partial thickness tear of [the] subscapularis and a suspected tear of the anterior labrum” Other subsequent MRIs noted a cystic lesion on the posterior left side of the pituitary (September 5, 2020) and hypointense lesion within the posterior and left side of the pituitary (October 13, 2020).
10The respondent submitted that a partial thickness tear does not remove the applicant from the MIG. The Tribunal has consistently held that a tear must be complete (see, for example, Seddik v. The Co-Operators Insurance Company, 2021 CanLII 37850 (ONLAT)). The MRIs noted by the applicant refer to pre-existing conditions that are unrelated to the accident. For example, the applicant’s right shoulder pain has affected her since March 2019, prior to the accident (report of Dr. Safinia, August 15, 2019).
Pre-Existing Conditions
11It is documented that the applicant’s medical history includes cholecystectomy, sleep apnea, high blood cholesterol, thyroid nodular disease, right arm and hand numbness/paresthesia (diagnosed as mild right-sided carpal tunnel syndrome), and right-side shoulder rotator cuff impingement.
12The respondent submitted that no mention of the subject accident was made to the applicant’s family doctor, Dr. Yim, until August 2022, more than two years post-accident. And the respondent’s s. 44 assessment by Dr. Khaled (January 10, 2023) states that the applicant sustained only soft-tissue injuries because of the accident.
13The MRIs noted by the applicant refer to pre-existing conditions that are unrelated to the accident (September 1, 2019; September 5, 2020; October 13, 2020) For example, the applicant’s right shoulder pain affected her since March 2019, prior to the accident. Records from the Orthopedic Rehabilitation Institute suggest that the applicant’s right shoulder pain is not related to the accident and is stated to be due to “overuse” (November 12, 2019).
14In any case, I do not see compelling medical evidence from the applicant that she should be removed from the MIG for a pre-existing condition, nor evidence that her pre-existing condition would prevent a maximal medical recovery from her accident-related impairments if she is kept within the MIG, which is the requirement for removal from the MIG under s. 18(2). Rather, the evidence from the respondent, especially the s. 44 report of Dr. Khaled, points in the opposite direction: that her injuries are minor and that any pre-existing conditions she had would not have adversely affected a maximal recovery.
Chronic Pain
15The applicant submitted that because of the accident, she has suffered from “constant neck pain, upper and lower back pain and right shoulder pain…with frequent headaches, difficulty sleeping, memory/concentration problem, [driving] anxiety and altered mood.” These conditions were noted as “chronic pain” in Dr. Jinoos Jianfar and Dr. H. Mohsini’s Chronic Pain and Physical Assessment Report (December 3, 2021).
16The purpose of this Chronic Pain and Physical Assessment Report was to uncover consequences resulting from the accident and its effects on the applicant. Dr. Jianfar is a licensed family physician, and Dr. Mohsini is a chiropractor. I do not see any reference to their credentials as chronic pain specialists, nor do I see any Acknowledgment of Expert’s Duty form that was submitted.
17Drs. Jianfar and Mohsini say that the injuries suffered from the accident have “limited” her ability to perform housekeeping tasks, self-care and other activities, and that her history of right shoulder rotator cuff impingement syndrome was “aggravated” by the subject accident.
18In summary, this Chronic Pain and Assessment Report notes chronic pain of the cervical spine, lumbar and lumbosacral spine, chronic pain of the thoracic spine, chronic pain of the right shoulder rotator cuff injury, post traumatic headaches, difficulty sleeping, memory and concentration problems and driving anxiety.
19The respondent submitted that the applicant did not demonstrate the presence of any of the six factors of chronic pain syndrome (as described in Y.F.T.L. v. the Co-Operators 2020 CanLII 27398 (ON LAT)). The chronic pain must “adversely” be “functionally disabling” to warrant removal from the MIG on this ground. The applicant must have at least three of the six factors set out in this case and the factors can be used as a guide in assessing an applicant’s claim of chronic pain. I agree with the respondent and do not see any evidence that the applicant has at least three of these criteria.
20The respondent submitted the s. 44 exam from Dr. Khaled. Dr. Khaled opines that as a result of the accident there were only minor soft-tissue injuries and no psychological conditions.
21The respondent submitted that none of the applicant’s MRIs from Mackenzie Richmond Hill Hospital, included in the applicant’s submissions, deal with chronic pain of the neck, back, hips or shoulder.
22The respondent submitted that there is no submission that qualifies Drs. Jianfar and Mohsini as chronic pain specialists as required by Rule 10.2 of the Licence Appeal Tribunal Rules, 2023. Indeed, there is no Acknowledgment of Expert’s Duty form submitted for these two physicians, contrary to Rule 10.2. Accordingly, the s. 25 report of Drs. Jinoos and Mohsini cannot be regarded as an expert report and thus should be assigned less weight.
23In terms of chronic pain syndrome, the LAT has found that to be valid the pain must “adversely affect the individual’s wellbeing” and must be “functionally disabling” (see, for example, AJ v. Aviva Insurance Canada, 2021 CanLII 35559 (ON LAT)). I do not find this to be the case here because there is no evidence the pain has been or continues to be functionally disabling.
24Further, the s. 25 report of Dr. Jianfar and Dr. Mohsini contains no diagnosis of chronic pain syndrome, nor is there evidence of these pain symptoms being functionally disabling. The applicant has continued to work and can care for herself and has not provided evidence to demonstrate that she has a functional impairment as a result of accident-related pain.
Psychological Issues
25The applicant submitted that a “psychological assessment” by Ms. Meera Joo, a registered psychologist, noted “sufficient psychological difficulty as to warrant treatment.” This was not in fact a psychological assessment or diagnosis but rather a pre-screen report.
26In this pre-screen report, based on a “brief discussion” with the applicant, the applicant notes she suffers from car-related anxiety, nervousness, and anxiety. She also stated she has depressive and anxious feelings and has difficulties with sleeping. There are no family doctor records that support these complaints.
27The respondent’s s. 44 assessment by Dr. Marjan Saghatoleslami, a psychologist, from January 10, 2023, states that the applicant does not meet the diagnostic threshold for a mental health disorder as a result of the accident. The assessment by Dr. Saghatoleslami states that she presents with neither a mood disorder nor an anxiety disorder.
28As the pre-screen report by Ms. Joo was not a full assessment but rather a brief discussion with the applicant, I cannot give it as much weight as the s. 44 assessment by Dr. Saghatoleslami.
29Also, there is no submission that qualifies Ms. Joo as a psychological expert as required by Rule 10.2 of the Licence Appeal Tribunal Rules, 2023. Indeed, there is no Acknowledgment of Expert’s Duty form submitted for Ms. Joo, contrary to Rule 10.2. Accordingly, the s. 25 report of Ms. Joo cannot be regarded as an expert report and thus should be assigned less weight.
30Therefore, based on the balance of probabilities, there is not enough medical evidence from the applicant proving that she should be removed from the MIG because of psychological issues suffered as a result of the accident.
31As the applicant remains within the MIG, it is therefore not required to review the treatment plans in dispute to determine if they are reasonable and necessary as the MIG limits have been exhausted.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are payable and no interest applies.
Award
33The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Because the applicant has not met the threshold to be removed from the MIG, and is not entitled to the treatment plans claimed, no award is payable.
ORDER
34I find that the applicant:
i. Shall remain in the Minor Injury Guideline.
ii. Is not entitled to the treatment plans claimed.
iii. Is not entitled to interest nor an award.
Released: September 3, 2024
Neil Levine
Vice-Chair