Chou v. Jevco Insurance Company, 2025 CanLII 108583

Chou v. Jevco Insurance Company, 2025 ONLAT 24-001381/AABS

Citation: Chou v. Jevco Insurance Company, 2025 ONLAT 24-001381/AABS

Licence Appeal Tribunal File Number: 24-001381/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:

Yi Shan Chou

Applicant

and

Jevco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Hermia Leung, Paralegal

For the Respondent:

Sabina Arulampalam, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Yi Shan Chou, the applicant, was involved in an automobile accident on February 17, 2022, 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, Jevco 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:

1. 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?

2. Is the applicant entitled to $2,575.00 for physiotherapy services, proposed by Physiomed Whitby in a treatment plan/OCF-18 (“plan”) dated March 9, 2022?

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

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

RESULT

3After reviewing both parties’ submissions and all the evidence I find:

1. The applicant’s accident-related impairments fall outside of the MIG and are not subject to the MIG limit.

2. The applicant is not entitled to the OCF-18 for physiotherapy in the amount of $2,575.00 for physiotherapy recommended by Physiomed Whitby, interest or an award.

ANALYSIS

The applicant’s impairments fall outside of the MIG.

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor 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.”

5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that her accident-related impairments fall outside of the MIG.

6The applicant submits that she should be removed from the MIG because she sustained a concussion and a psychological impairment as a result of the accident. She relies on both the hospital records and clinical notes and records (“CNRs”) of her family doctor which both diagnose her with a concussion. She also relies on the CNRs of her treating clinic and a disability certificate (“OCF-3”) which also diagnosed her with a concussion. She also asserts that she had pre-existing medical conditions which would prevent her from achieving maximum medical recovery within the MIG.

7The respondent argues that the applicant’s accident-related impairments fall within the MIG. It relies on the IE report of Dr. Belfon, general practitioner who diagnosed the applicant with various soft tissue injuries as a result of the accident which could be treated within the MIG. It maintains that I should prefer the opinion and report of Dr. Belfon because the applicant has not provided sufficient evidence to refute it.

Concussion

8I find that the applicant sustained a concussion as a result of the accident which removes her from the MIG.

9First, I find that the applicant has consistently reported to health practitioners that she hit her head on the steering wheel and the head rest when the accident occurred. As a result, I find the applicant’s impairment consistent with how the accident occurred.

10Second, I find the CNRs of the hospital and family doctor establish that the applicant sustained a concussion. The applicant attended the hospital emergency department in the first two days following the accident where she reported headaches, dizziness and photophobia. A triage nurse noted that the applicant appeared groggy and was slurring her words. Dr. Malcolm diagnosed the applicant with whiplash and a concussion and referred her for diagnostic imaging in which the results were normal. The respondent submits that I should not accept Dr. Malcolm’s diagnosis because it was part of an assessment plan pending a CT scan. However, I accept Dr. Malcolm’s diagnosis because it is consistent with the CNRs of the family doctor which noted ongoing post-concussive complaints such as dizziness, memory complaints, photophobia and noise and sound sensitivity.

11Third, I find the IE report of Dr. Belfon dated November 5, 2024 (completed almost three years posts-accident) did little to discredit the applicant’s position that she sustained a concussion. The doctor’s report notes that the applicant walked with an ataxic gait and she was observed to have intermittent slurred speech. I find Dr. Belfon’s observations of the applicant consistent with the post-concussion symptoms reported by her to her family doctor and the observation of the triage nurse. Further, Dr. Belfon determined that the applicant sustained strain and sprain impairments which can be treated in the MIG and concussion type symptoms which the doctor deferred to a neurologist. I note that no neurological IE was carried out.

12Finally, the respondent requested that I draw an adverse inference from the applicant’s failure to produce some updated CNRs of her family doctor and decoded OHIP summary pursuant to the Tribunal’s case conference report and order. It also asks that I draw an adverse inference because of the applicant’s failure to produce an expert report of a neurologist confirming a concussion diagnosis or any concussion testing to confirm same. Although I acknowledge that a neurologist has expertise in assessing brain injuries and concussions, I find the family doctor and ER physician are also qualified to render this diagnosis based on the applicant’s symptoms. For this reason, I do not draw an adverse inference from the applicant’s failure to produce an expert report of a neurologist as I find this evidence unnecessary to confirm a concussion. Consequently, I find the applicant has proven on a balance of probabilities that she sustained a concussion as a result of the accident which removes her from the MIG.

13Since I have determined that the applicant sustained a concussion as a result of the accident, which removes her from the MIG I do not need to address whether she is removed from the MIG as a result of a psychological impairment or pre-existing condition.

The applicant is not entitled to the OCF-18 in the amount of $2,575.00 recommending physiotherapy

14Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary. To do so, the respondent should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. The Tribunal has also determined that treatment is reasonable and necessary if it results in the temporary relief of pain.

15The OCF-18 for physiotherapy was dated March 1, 2022, and was prepared by Nilav Bhowmik, chiropractor, and recommended various sessions of chiropractic treatment, physiotherapy, acupuncture and massage for a total cost of $2,575.00. The goal of the OCF-18 was pain reduction, increase strength and range of motion. In addition, the goal was to reduce the intensity and frequency of headaches, dizziness and other post-concussive symptoms.

16The applicant submits that the OCF-18 is reasonable and necessary to facilitate her recovery. In addition, additional treatment was recommended by her treating physicians to optimize her medical recovery. Further the respondent denied the OCF-18 it based on its position that the applicant sustained a minor injury.

17The respondent denied the OCF-18 on the basis that the MIG applied. It also relied on the aforementioned IE report of Dr. Belfon who determined that the OCF-18 for physical treatment was not reasonable and necessary because she had sustained maximum medical recovery from facility-based treatment.

18The respondent argues that the applicant has not discharged her onus because she has not provided any expert report or medical opinion to support her position that the treatment sought is reasonable and necessary. It submits that to date it has approved $3,500 of treatment and the applicant has only incurred $1,602.81 of the approved physical treatment. It submits that I should prefer Dr. Belfon’s opinion because the doctor conducted a thorough in-person physical examination, in-person interview and reviewed medical documentation to reach the determination that the disputed OCF-18 is not reasonable and necessary. It also asserts that the applicant has not directed the Tribunal to references in the medical evidence to support that the OCF-18 is reasonable and necessary.

19I find the applicant has not met her onus in proving that the OCF-18 for physiotherapy is reasonable and necessary because she did not discuss the type of treatment she has received to date in her submissions or direct to me to the evidence to support that it resulted in any benefit or improvement. Nor did she submit reply submissions addressing the respondent’s argument that even though it has approved $3,500 in treatment, to date she has only incurred $1,602.81. In addition, I find that other than stating that she requires treatment for her injuries she did not direct me to the relevant medical evidence to support that the OCF-18 is reasonable and necessary. I conclude that the applicant has not met her onus in proving that the OCF-18 is reasonable and necessary.

Interest

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as I have not determined that any benefits are overdue.

Award

21The 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. The applicant submits that the respondent unreasonably withheld or denied payment for the OCF-18 in dispute because it maintained its position on the MIG.

22The applicant did not meet her onus in proving that an award is warranted in this case. It is well established law that the threshold for an award is high. Simply stating that the respondent unreasonably withheld and denied the benefits without further submissions is insufficient for me to conclude that an award should be considered in this case.

ORDER

23For all the above-noted reasons, I make the following order:

1. The applicant’s accident-related impairments fall outside of the MIG.

2. The applicant is not entitled to the OCF-18 for physiotherapy in the amount of $2,575.00 for physiotherapy recommended by Physiomed Whitby, interest or an award.