Nan v. Western Assurance Company, 2024 CanLII 912

Citation: Nan v. Western Assurance Company, 2024 ONLAT 21-009885/AABS

Licence Appeal Tribunal File Number: 21-009885/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:

QiRi Nan

Applicant

and

Western Assurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Wei Guo, Paralegal

For the Respondent: Roger Sawh, Counsel

HEARD: By way of written submissions

OVERVIEW

1QiRi Nan, the applicant, was involved in an automobile accident on January 19, 2020, 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, Western Assurance 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 limit?

ii. Is the applicant entitled to $3,472.82 for physiotherapy services, proposed by North Toronto Rehab in a treatment plan (“OCF-18”) dated April 11, 2020?

iii. Is the applicant entitled to $1,944.80 for psychological services, proposed by Dr. Zhu Hui Li in an OCF-18 dated July 20, 2020?

iv. Is the applicant entitled to $1,497.98 for physiotherapy services, proposed by North Toronto Rehab in an OCF-18 dated August 10, 2020?

v. Is the applicant entitled to $1,192.48 for physiotherapy services, proposed by North Toronto Rehab in an OCF-18 dated September 10, 2020?

vi. Is the applicant entitled to $1,189.55 for physiotherapy services, proposed by North Toronto Rehab in an OCF-18 dated January 10, 2021?

vii. Is the applicant entitled to $986.74 for physiotherapy services, proposed by North Toronto Rehab in an OCF-18 dated February 10, 2021?

viii. Is the applicant entitled to $873.93 for physiotherapy services, proposed by North Toronto Rehab in an OCF-18 dated March 1, 2021?

ix. Is the applicant entitled to $1,189.55 for physiotherapy services, proposed by North Toronto Rehab in an OCF-18 dated March 31, 2021?

x. Is the applicant entitled to $996.86 for physiotherapy services, proposed by North Toronto Rehab in an OCF-18 dated April 30, 2021?

xi. Is the applicant entitled to $884.05 for physiotherapy services, proposed by North Toronto Rehab in an OCF-18 dated June 2, 2021?

xii. Is the applicant entitled to $791.12 for physiotherapy services, proposed by North Toronto Rehab in an OCF-18 dated July 4, 2021?

xiii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG; and

ii. The applicant is not entitled to the treatment plans in dispute, or interest.

ANALYSIS

Minor Injury Guideline

4Section 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.”

5An 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 stating that the condition precludes recovery from any accident-related minor injury 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.

6The applicant submits that he should be removed from the MIG on the basis of his pre-existing conditions, chronic pain and psychological impairments.

The applicant has not established that he should be removed from the MIG on the basis of pre-existing impairments

7The applicant submits that as a result of a prior 2011 motor vehicle accident, he suffered from pre-existing strain, hearing loss, sternum, waist and chronic back pain. He asserts that the subject accident has aggravated his chronic back pain, warranting removal from the MIG. However, the applicant has provided limited evidence of pre-existing conditions. Although chronic lower back pain stemming from the 2011 accident was noted in the OCF-3s prepared by the applicant’s chiropractor, Dr. Kai, no supporting medical documentation was provided to establish this impairment.

8The clinical notes and records (“CNRs”) of the applicant’s family physician Dr. John Lee, do not reference any pre-existing conditions stemming from a 2011 accident. Similarly, the applicant reported to the respondent’s insurer’s examination (“IE”) assessor Dr. Charanjit Sandhu that while he had been in a previous car accident years ago, it was very minor resulting in no injuries. The applicant also reported no prior health problems and no history of chronic pain to Dr. Sandhu.

9The onus rests with the applicant to lead sufficient evidence of pre-existing impairments. I find that that he has not led sufficient evidence in this regard.

The applicant has not established chronic pain warranting removal from the MIG

10The applicant submits that he suffers from chronic pain as a result of the subject accident. In support of his claim, he relies on the CNRs of his family physician Dr. Lee, which show that after the accident, the applicant began to report ongoing lower back pain with radiating right leg pain. The applicant continued to report such pain in 2021 and 2022, and submits that post-diagnostic imaging of his back revealed multilevel spondylosis and degenerative disc disease.

11The applicant further argues that as a result of this chronic low back pain, with radiating leg pain, he was referred to Dr. Neema Kasravi, neurologist, who referred him to a chronic pain clinic. Finally, the applicant submits that as a result of his ongoing pain, he attended physical therapy treatment at North Toronto Rehab from February 13, 2020 to August 10, 2021, for which he has mostly paid out of pocket. He argues that this treatment was needed to address his chronic pain.

12The respondent disputes that the applicant has developed accident-related chronic pain. It argues that despite the notations of “chronic” pain in Dr. Lee’s CNRs, the applicant has not received a formal diagnosis of chronic pain syndrome or provided any opinion that his ongoing pain is not simply the sequelae of soft tissue injuries. It relies on Dr. Sandhu’s report dated October 22, 2020, who found that the applicant’s myofascial strains, with residual symptoms from contusive injuries and headaches, all fell within the MIG. In subsequent addenda, Dr. Sandhu considered the lumbar diagnostic imaging revealing multilevel degenerative changes and concluded that the applicant’s accident-related injuries still remained in the MIG.

13I find that the applicant has not met his onus to prove accident-related chronic pain, warranting removal from the MIG.

14Although the applicant links his post-accident lower back pain to the lumbar impairments revealed in the diagnostic imaging, he does not provide any opinion from a physician opining that such degenerative disc disease was a result of the accident, rather than being an age-related degenerative condition. I note that the applicant’s neurologist Dr. Kasravi reviewed the diagnostic imaging, and stated that it “is unclear what the cause of his ongoing pain symptoms are”, but referred the applicant to a pain clinic for a trial of corticosteroid injections. No further records have been provided from a pain clinic. Dr. Kasravi also conducted a nerve conduction study which found no evidence of neuropathy or radiculopathy in the right leg.

15Although the applicant’s family physician Dr. Lee reports the applicant’s ongoing pain complaints post-accident, in an October 27, 2021 CNR entry, Dr. Lee reviewed the applicant’s MRI and noted “chronic changes present”. However, Dr. Lee does not opine as to the cause of such chronic changes. The onus rests with the applicant to establish that his ongoing pain complaints stem from accident-related impairments rather than unrelated degenerative conditions. The applicant has not led sufficient evidence in this regard.

16Further, I note that a chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT). For chronic pain to be more than sequelae from soft tissue injuries, there must be: (1) continuous, or chronic pain syndrome; and (2) it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. Unless the applicant provides evidence that the pain he experiences contains these elements, the pain is sequelae of a MIG injury.

17The applicant has provided limited evidence of functional impairment. In his submissions, he argues that he has had to quit his job due to his ongoing pain, depression and anxiety and that he no longer socializes. However, other than these limited self-reports, no additional evidence has been provided. Despite consistently attending at his family physician’s office, the applicant does not direct me to any CNR entry where functional restrictions or work limitations were discussed. Further, the applicant reported to the respondent’s psychological IE assessor Dr. Marc Mandel that he had continued to work following the accident, but that “business has been slower” or that he has worked fewer hours. As such, I find that the applicant has not led sufficient evidence establishing functional limitations due to pain.

The applicant is not removed from the MIG on the basis of a psychological impairment

18The applicant submits that as a result of the accident, he has developed psychological impairments warranting removal from the MIG. He relies in large part on the pre-assessment report of Dr. Zhu Li, psychologist, who diagnosed the applicant with somatic symptom disorder with predominant pain, moderate, post-traumatic stress disorder and a major depressive disorder, moderate.

19The respondent disputes that the applicant has developed an accident-related psychological impairment. It relies on its IE assessment of Dr. Mandel, who found that there was a lack of objective information to support a DSM V diagnosis or substantial psychological impairment.

20I find that the applicant has not led sufficient evidence to establish a psychological impairment warranting removal from the MIG. The CNRs of Dr. Lee do not indicate that the applicant reported any psychological symptoms in the years post-accident, other than complaints of insomnia. However, with respect to the insomnia, in a March 28, 2022 CNR entry, Dr. Lee noted that the applicant reported that he was sleeping well, with intermittent zopiclone usage. The applicant does not direct me to any additional reports of psychological complaints to his family physician, or any referrals for psychological treatment. This is despite the fact that the applicant continued to attend Dr. Lee’s office regularly in the years post-accident.

21When comparing the pre-assessment report of Dr. Li, to the s. 44 IE of Dr. Mandel, I prefer the evidence of the respondent. Dr. Li’s pre-screening did not involve any diagnostic testing, with a minimal interview, noting that Dr. Li had “briefly” talked over the phone with the applicant. Although Dr. Li mentions that he reviewed the “provided medical documents”, these were not specified. In contrast, Dr. Mandel conducted a three-hour assessment including a clinical interview, psychological testing and reviewed extensive medical documentation. Further, I find that Dr. Mandel’s findings of a lack of objective information to support a DSM V diagnosis or substantial psychological impairment, are consistent with the medical record, particularly the CNRs of Dr. Lee.

22The parties agree that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that he should be removed from the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

ORDER

24For the reasons outlined above, I find that:

i. The applicant remains in the MIG; and

ii. The applicant is not entitled the treatment plans in dispute, or interest.

25The application is dismissed.