Zhao v. Certas Home and Auto Insurance, 2024 CanLII 886

Licence Appeal Tribunal

Citation: Zhao v. Certas Home and Auto Insurance, 2024 ONLAT 21-013253/AABS

Licence Appeal Tribunal File Number: 21-013253/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:

Lin Zhao

Applicant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR: Michael Beauchesne

APPEARANCES:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Nikhita Bhasin, Counsel

HEARD: By way of written submissions

OVERVIEW

1Lin Zhao (the “applicant”), was involved in an automobile accident on May 4, 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 Certas Home and Auto Insurance (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:

i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to the Minor Injury Guideline (the “MIG”) and its $3,500.00 limit on treatment?

ii. Is the applicant entitled to psychological services in the amount of $3,981.88, proposed by Somatic Assessments and Treatment Clinic in a treatment plan (the “OCF-18”) dated April 5, 2021?

RESULT

3The applicant remains in the MIG and is not entitled to the disputed OCF-18.

ANALYSIS

Applicability of the MIG

4I find the applicant has not demonstrated she should be removed from the MIG.

5Section 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.”

6In this case, the applicant seeks removal from the MIG because of chronic pain and because of a psychological condition. The Tribunal has determined that accident-related chronic pain with a functional impairment may warrant removal from the MIG. The Tribunal also accepts that, like chronic pain, a psychological condition resulting from the accident is not included in the definition of minor injury. The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG because of chronic pain and psychological impairment.

Chronic pain

7I find the applicant has not established she suffers from accident-related chronic pain.

8The applicant submits she continues to have difficulty with her daily functioning and has not yet returned to her pre-accident performance because she continues to experience accident-related pain in her neck, shoulder, and back. The applicant relies on the clinical notes and records of Dr. Georgia Palantzas (chiropractor) at Total Recovery Rehab Centre.

9The respondent submits the applicant’s pattern of post-accident treatment and activity is not at a level of suffering and distress accompanied by functional impairment or disability, and that she has failed to meet her onus to prove her injuries fall outside the MIG.

10I agree with the respondent. The applicant’s submissions do not point me to compelling medical evidence of functional impairment arising from accident-related chronic pain. The applicant does not speak to evidence in the clinical notes and records of her family physician, Dr. Eric Leu, and I am unable to confirm the applicant’s reports of difficulties while walking and sustaining certain postures in Dr. Palantzas’ clinical notes because the entry—dated May 13, 2019, as referenced in the applicant’s submissions—does not say this. Even if I could confirm the applicant experienced these difficulties shortly after the accident, I was not directed to evidence that persuades me she continues to have difficulty with her daily functioning as indicated in her submissions. On the contrary, I accept the applicant returned to work after the accident because this is what it says at part 8 of the application for accident benefits (the “OCF-1”) dated May 14, 2019. I find that returning to work is inconsistent with claims of daily functioning difficulties owing to chronic pain.

11Further, I am not convinced that Dr. Palantzas’ suggestion of “significant radiculopathy” owing to disc integrity issues and nerve root tensions—which she documented as a neurological factor in an OCF-18 dated April 16, 2022—is evidence of chronic pain as indicated by the applicant. This is because I am not pointed to evidence of functional impairment arising from these conditions, and because I am not persuaded that neurology is within the scope of practice for chiropractors. In fact, Dr. Palantzas recommends a referral to a “qualified” medical specialist to investigate these neurological conditions, and the applicant did not point to any evidence that supports a follow-up consultation with a neurologist occurred.

12Taken together, I find there is little evidence of chronic pain with functional impairment to support the applicant’s claims. I am not convinced the applicant has met her evidentiary onus to prove chronic pain and I decline to remove her from the MIG on this basis.

Psychological impairment

13I find the applicant has not established she suffers from a psychological impairment as a result of the accident.

14The applicant’s submissions say she feels “nervous at times” and experiences accident flashbacks and emotional distress that impair her ability to complete duties. She points to diagnoses of major depressive disorder with anxious distress and a specific phobia (travel) as evidence of a psychological impairment resulting from the accident. The applicant relies on the section 25 report prepared by Dr. Sharleen McDowall (psychologist), and adds that the respondent did not produce a section 44 insurer’s examination (the “IE”) to refute Dr. McDowall’s findings.

15The respondent’s submissions argue that the applicant has not met her onus because she did not provide corroborating evidence of psychological injuries from any other medical practitioners. The respondent asserts an IE was not required because the applicant’s section 25 report on its own is insufficient evidence of psychological impairment, and that the report itself should be given no weight because: (1) there is no evidence that Dr. McDowall was involved in any aspect of conducting the assessment or preparing the report; (2) the applicant failed to produce a signed Acknowledgement of Expert’s Duty Form as required by Rule 10.2 (b) of the Tribunal’s Common Rules of Practice and Procedure (October 2017) (the “Rules”); and (3) the report’s conclusions and diagnoses did not rely on a file review and did not take Dr. Leu’s notes and records into consideration.

16I agree with the respondent that the section 25 report does not carry much weight without corroborating evidence of psychological impairment. The report was prepared on March 29, 2021, which was almost two years after the accident, and the applicant did not point me to evidence of psychological complaints made to Dr. Leu or any other medical professional during the intervening period. The applicant’s submissions do not speak to treatment for the psychological distress she claims resulted from the accident, or to any specialist referrals to investigate her mental health, during the intervening period. The evidence I was pointed to that indicates the applicant returned to work shortly after the accident is not consistent with her claims of emotional distress that impair her ability to complete her duties. As such, I do not find the report of Dr. McDowell to be persuasive, owing to the time that has passed since the accident and the lack of corroborating medical evidence showing psychological symptomology consistent with the applicant’s claims up to that time. I find, therefore, that there is insufficient medical evidence to conclude the applicant sustained a psychological impairment as a result of the accident, and I decline to remove her from the MIG on this basis.

17The applicant remains in the MIG, so an analysis of the reasonableness and necessity of the disputed treatment plans is not required. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to section 40(8) of the Schedule.

ORDER

18The applicant remains in the MIG and the applicant is not entitled to the disputed OCF-18. Section 40(8) of the Schedule applies. The application is otherwise dismissed.