Tang v. TD General Insurance Company, 2024 CanLII 99648

Tang v. TD General Insurance Company

Citation: Tang v. TD General Insurance Company, 2024 ONLAT 22-012283/AABS

Licence Appeal Tribunal File Number: 22-012283/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:

Shu Hua Tang

Applicant

and

TD General Insurance Company

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Yu Denise Jiang, Paralegal

For the Respondent: Yalda Aziz, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Shu Hua Tang, the applicant, was involved in an automobile accident on July 6, 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, TD General 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 the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?

ii. Is the applicant entitled to chiropractic services proposed by Easy Health Centre in the following amounts:

a) $1,503.39 ($1,541.39 less $38.20 approved), proposed in a treatment plan/OCF-18 (“plan”) dated November 6, 2021;

b) $1,542.45 ($2,435.65 less $893.20 approved), proposed in a plan dated February 12, 2022; and

c) $1,988.552, proposed in a plan dated November 5, 2022?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?

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

RESULT

3The applicant sustained a minor injury as a result of the accident as defined in section 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

4The applicant is not entitled to the treatment plans in dispute because they propose goods and services that are not included in the MIG and above the funding limit.

5No interest is payable, and the respondent is not liable to pay an award under s. 10 of Reg. 664.

6The application is dismissed.

BACKGROUND

7The applicant was the seat-belted driver of a vehicle that was struck on the front driver’s side by another vehicle that failed to stop at a stop sign. The airbags did not deploy and there was no direct head injury or loss of consciousness. Neither police or ambulance attended the scene, and the applicant did not go to the hospital. The applicant first reported the accident to her family doctor on July 22, 2021, two weeks after the accident. She complains of chronic knee pain, back/neck/shoulder pain, and pre-existing neck pain that was aggravated by the accident.

ANALYSIS

The Minor Injury Guideline (“MIG”)

8Section 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. 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.”

9An insured 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 with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10For the following reasons, I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 funding limit on treatment, which the parties agree has been exhausted.

Pre-existing condition

11I find that the applicant has not demonstrated that she suffers from a pre-existing injury or condition that precludes recovery within the MIG.

12The applicant relies on Dr. Bryan Temple’s neurological consultation report dated August 3, 2022 to support her position. According to Dr. Temple, the applicant had a history of neck pain for at least 5 years that was made worse by the accident.

13The respondent maintains that there is no objective medical evidence of a pre-existing medical condition warranting removal from the MIG. Specifically, there is no medical opinion elicited by the applicant to support a MIG removal on that basis. The respondent relies on the s. 44 physiatry assessment and report of Dr. Michael Ho dated March 22, 2022. Dr. Ho found that there was no compelling evidence of a pre-existing medical condition that would impede the applicant from achieving maximal medical recovery from treatment within the MIG.

14I am not persuaded by the applicant’s submissions and evidence. She has not identified any documentary evidence that shows a pre-existing neck or back condition. The clinical notes and records of the applicant’s family doctor, Dr. Mary El Sabawy make no mention of any pre-accident injury or condition that would preclude recovery within the MIG. I agree with the respondent that the only mention of a pre-existing condition can be found in Dr. Temple’s post-accident report. In that report, Dr. Temple also noted that the applicant had full ranges of motion in her neck and back. Without any objective pre-accident documentary evidence to support Dr. Temple’s finding, I find that the applicant has not met her onus of establishing, on a balance of probabilities, that she was suffering from a documented pre-existing condition that would preclude her from recovery within the confines of the MIG.

Chronic pain

15I find that the applicant has not demonstrated that she suffers from a chronic pain condition with a functional impairment that would warrant her removal from the MIG.

16The applicant relies on the clinical notes and records of Dr. Mary El Sabawy to show that she has made consistent complaints of pain since the accident that continue to date. She also relies on Dr. Temple’s 2022 neurological consult which indicates that she continues to suffer from chronic neck and low back pain over a year after the accident.

17The respondent maintains that the applicant’s pre-accident medical records show no indication of pain let alone chronic pain. Furthermore, there is no evidence of post-accident prescription medication usage beyond the recommended duration or excessive reliance on healthcare providers. The applicant has not attended her treating doctors within the last 1.5 years, with the last visit occurring on August 3, 2022, and all rehabilitation treatment stopped in December 2022. According to the respondent, the applicant has remained independent with her personal care and housekeeping. She only took one week off work after the accident and has been doing her pre-accident employment as an ultrasound technician ever since.

18The respondent acknowledges Dr. Temple’s finding that the applicant has had chronic pain for the last 5 years and that the accident exacerbated her pain. The respondent submits, however, that this assertion is questionable in the absence of any documented evidence supporting that the applicant had chronic pain before the accident.

19I am persuaded by the respondent’s submissions. I agree that there is no corroborating documentary evidence to support chronic pain with functional impairment. Dr. Temple reported in August 2022 that the applicant experienced mild neck tightness that lasted for about 2 hours, 5 days per week that was aggravated by working on her computer. He also noted mild low back aching when lying in bed that lasted about half an hour 2 or 3 times per week. Otherwise, the neurological examination was completely unremarkable. The applicant has not consulted any pain specialists, takes a single medication for arthritis, and she continues to work as an ultrasound technician.

20For these reasons, the applicant has not satisfied me that she suffers from a chronic pain condition that would warrant removal from the MIG. I find on a balance of probabilities that the applicant sustained predominantly minor injuries as a result of the accident that fall under the MIG.

21I find that the applicant is not entitled to the treatment plans in dispute for chiropractic services. The applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury. The treatment plans in dispute propose goods and services that fall outside of the MIG.

Interest

22Interest 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.

Award

23The 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. I find that the respondent is not liable to pay an award.

ORDER

24The applicant sustained a minor injury as a result of the accident as defined in section 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.

25The applicant is not entitled to the treatment plans in dispute because they propose goods and services that are not included in the MIG and above the funding limit.

26No interest is payable, and the respondent is not liable to pay an award under s. 10 of Reg. 664.