Citation: Yoon v. Allstate Insurance Company of Canada, 2025 ONLAT 23-008106/AABS

Licence Appeal Tribunal File Number: 23-008106/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:

Leah Kyungro Yoon

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Matthew Frontini

APPEARANCES:

For the Applicant:

Jun Ki Lee, Counsel

For the Respondent:

Yalda Aziz, Counsel

HEARD:

By way of written submissions

1Leah Yoon, the applicant, was involved in an automobile accident on January 3, 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, Allstate 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?

ii. Is the applicant entitled to treatments proposed by Lifemark Sport Medicine in a treatment plan/OCF-18 (“treatment plan”) as follows:

$650.45 for physiotherapy services in a treatment plan submitted October 17, 2022;
$486.48 for chiropractic services in a treatment plan submitted October 25, 2022; and
$204.79 for chiropractic services in a treatment plan submitted December 23, 2022?

iii. Is the applicant entitled to $1,869.89 for chiropractic services proposed by Sigma Chiropractic & Rehab Clinic in a treatment plan submitted February 6, 2023?

iv. Is the applicant entitled to $2,200.00 for a chronic pain & psychiatric assessment, proposed by Direct Comfort LTD. in a treatment plan submitted February 22, 2023?

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

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. Given the applicant’s injuries are minor, a determination of whether the treatment plans are reasonable and necessary is not required;

iii. The applicant is not entitled to interest on any overdue payments of benefits pursuant to s. 51 of the Schedule; and

iv. The application is dismissed.

PROCEDURAL ISSUE

4The respondent raised a procedural issue regarding Tab 2 of the applicant’s document brief, which is an MRI report of the applicant’s lumbar spine, dated July 5, 2024. The respondent requests that this document be excluded as evidence because it was not served in accordance with the production deadline of March 22, 2024 as set out in the Case Conference Report and Order dated January 30, 2024.

5The applicant did not make in submissions in reply to the respondent’s request.

6Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 provides that if a party fails to comply with any Rule, direction or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal. Rule 9.3 further provides direction on the submissions a party may make and the factors the Tribunal will consider in respect of such a request for permission for a document to be relied on as evidence.

7While the applicant has not sought permission or made any submissions contemplated by Rule 9.3, the respondent has not identified any specific prejudice caused by the report in this case. As such, I have admitted the July 2024 report into evidence and considered it in rendering my decision.

ANALYSIS

The applicant is not removed from the MIG

8The applicant is not removed from the MIG. She has not established on a balance of probabilities that she has suffered more than a minor injury because of the accident.

9Section 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.”

10An 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 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

11The applicant claims to suffer from psychological injuries and a chronic pain disorder. The applicant submits these injuries are outside of the MIG. As a result, the applicant claims entitlement to medical benefits beyond the MIG funding limit.

The applicant has not established that she suffers a psychological injury

12The applicant has not established on a balance of probabilities that she suffers a psychological injury warranting removal from the MIG.

13The applicant relies on the psychiatric assessment report of Dr. Aitih Seif, psychiatrist, and Mr. David Ross, psychotherapist, dated June 4, 2023, arising from a virtual assessment carried out on May 24, 2023. The assessment included a clinical interview and the administration of psychological self-report questionnaires by Mr. Ross. Mr. Ross provided his notes of the interview and the questionnaires to Dr. Seif, who reviewed the data in rendering his opinion. Dr Seif provided DSM-V diagnoses of: (1) Major Depressive Disorder, Single Episode, in the moderate range, with Anxious Distress; (2) Somatic Symptom Disorder, with predominant pain, in the persistent range, at severe levels; and (3) Specific Phobia, situational type – vehicular.

14The respondent argues that the applicant has not established that she suffers a psychological injury. The respondent notes the lack of contemporaneous corroborating evidence of psychological complaints as well as taking issue with the psychometric testing used in the psychiatric assessment upon which the applicant relies. The respondent also relies on the psychological assessment report of Dr. Dumitrascu, psychologist, dated October 31, 2023, arising from an in-person assessment conducted on October 23, 2023. Dr. Dumitrascu’s assessment included a clinical interview and the administration of psychometric testing. Dr. Dumitrascu concluded that the applicant did not meet the DSM-V criteria for a psychological disorder.

15I am not persuaded by the applicant’s reliance on Dr. Seif’s and Mr. Ross Steiner’s assessment because it took place nearly 16 months post accident and there is an absence of corroborating evidence. The applicant provided records of attending at her family doctor for the period of 10 – 21 months post-accident and these records do not corroborate the complaints that the applicant reported during the assessment. While these records refer to the applicant’s accident-related pain, there are no references of any psychological complaints. While the assessment states that the clinical notes and records of the applicant’s family doctor were reviewed, the assessment does not comment on the lack of corroboration between these notes and the applicant’s reported complaints during the assessment.

16I also find the conclusions of the report itself difficult to reconcile with the data reported therein. For example, Dr. Seif diagnosed the applicant with Major Depressive Disorder despite the results of the Beck Depression Inventory-II indicating that the applicant has mild depression. The applicant also reported severe driving anxiety and her scores from the Beck Anxiety Inventory indicated she is experiencing severe anxiety. Yet, she reported driving between 3-4 hours daily for her commute to work, as well as other aspects of her life that have remained unchanged since the accident. I find it difficult to reconcile the conclusion that anxiety and specifically anxiety related to a driving phobia, is significantly interfering with the applicant’s life in the face of her reporting very limited impacts to her daily functioning. As such, I place little weight on Dr. Seif’s conclusion that the applicant’s daily functioning is significantly impacted.

17In contrast, Dr. Dumitrascu found that the applicant’s psychometric testing and clinical interview did not indicate that she was suffering from a psychological injury. Dr. Dumitrascu also noted that the psychometric tests employed by Mr. Ross did not have validity scales and are used for screening purposes only. The applicant did not make any submissions in respect of the propriety of the tests administered by Mr. Ross.

18I place greater weight on Dr. Dumitrascu’s assessment. He directly interviewed the applicant, and his conclusions are consistent with the clinical notes and records of her family doctor, which indicate that the applicant did not report psychological complaints to her family doctor and reported daily functioning, particularly her uninterrupted work status and commuting for work post-accident.

19I find that the applicant has not established on a balance of probabilities that she has suffers a psychological injury as a result of the motor vehicle accident and removal from the MIG on this basis is not warranted.

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

20I find that the applicant has not established on a balance of probabilities that she suffers chronic pain as a result of the accident warranting removal from the MIG.

21As set out above, an insured may be removed from the MIG if they suffer from chronic pain because of the accident. However, it is not enough for the insured to have pain over an extended duration of time – there must be chronic pain with functional impairment.

22The applicant relies on the clinical notes and records of her family doctor, Dr. Kim. These records span November 21, 2022, approximately 10 months post-accident, to October 2, 2023. These records indicate that the applicant complained of chronic low back pain, reduced range of motion and tenderness on four occasions during this 11-month period. She was also prescribed Anaprox for her pain complaints.

23The applicant also relies on the chronic pain physical assessment report of Dr. Jinoos Jianfar, family physician, and Dr. H. Mohsini, chiropractor, dated June 14, 2023, arising from an assessment conducted on May 5, 2023. This assessment report provided a “Diagnostic Impression” of the applicant as follows: (1) chronic pain of the cervical spine; (2) chronic pain of the lumbar and lumbosacral spine; (3) chronic pain of the thoracic spine; (4) post traumatic headaches and difficulty sleeping; and (5) reported driving anxiety and possible other emotional conditions/symptoms requiring appropriate intervention(s). The assessors concluded that the applicant suffers “some degree of inability to carry on with a normal life” and that she is not in the MIG because of mental heath concerns and “significant physical injuries to her neck, upper and lower back with headaches.”

24I place little weight on Drs. Jianfar’s and Mohsini’s opinion that the applicant is out of the MIG because of significant physical injuries and mental health concerns as it is not internally consistent with the report. The report does not identify any specific significant physical injuries and identifies some minor or moderate pain in some movements of the applicant’s joints. As such, I place little weight on Drs. Jianfar’s and Mohsini’s conclusions that the applicant has significant injuries as result of the accident. I also place little weight on the doctors’ conclusion that the applicant is suffering mental health problems for the same reasons as for Dr. Seif’s report, namely, the lack of corroborating reporting of these complaints and the assessors’ failure to discuss this despite reviewing the notes of the applicant’s family doctor.

25The applicant’s submissions also set out that her chronic pain has resulted in functional impairments in housekeeping/home maintenance, personal care and social life. The applicant’s evidence of these functional impairments is based on her reporting to the section 25 assessors. As with the applicant’s psychological injuries, the applicant has not identified corroborating evidence regarding these functional impairments. While the 10-months of post-accident records from the applicant’s family doctor reference pain, none of these functional impairments are mentioned.

26As set out above, Drs. Jianfar and Mohsini also provided an opinion on the issue of whether the applicant’s injuries fall within the MIG. While they conclude that these injuries do not fall within the MIG, the basis of the conclusion is unclear because in the same sentence the assessors refer to mental health concerns and significant physical injuries. As discussed, I do not accept that their assessment establishes that the applicant suffers mental health concerns or significant physical injuries that warrant removal from the MIG. I place very little weight on their ultimate conclusion that the applicant’s accident-related injuries do not fall within the MIG.

27The respondent argues that to be removed from the MIG on the basis of chronic pain, the applicant must demonstrate she suffers Chronic Pain Syndrome. The respondent directs the Tribunal to previous decisions asserting that an applicant must establish that three of six criteria set out in the AMA Guides 6th edition (“AMA Guides”) are satisfied to be removed from the MIG. The respondent argues that these criteria are not met in this case and therefore the applicant has not established that she should be removed from the MIG on the basis of chronic pain. The applicant did not make any submissions regarding whether she meets the AMA Guides’ criteria for chronic pain.

28I agree with the respondent that a finding of Chronic Pain Syndrome based on the AMA Guides will warrant the removal of an insured from the MIG. Such a finding is sufficient, but not necessary, to be removed from the MIG because although the Tribunal finds the AMA Guides to be a useful analytical tool, they are not incorporated into the Schedule. As described in paragraph 21 above, the Tribunal has accepted that an applicant may be removed from the MIG based on chronic pain accompanied by functional impairment. While I agree that the applicant has not established that she suffers from Chronic Pain Syndrome based on the AMA Guides, I still need to consider whether she suffers chronic pain with functional impairment warranting removal from the MIG.

29In this case, I find that the applicant has not established on a balance of probabilities that she suffers functional impairments from chronic pain resulting from the accident that warrant removal from the MIG because the evidence tendered by applicant does not establish that she suffers a functional impairment as a result of chronic pain from the accident.

30The respondent also relies on the physiatry assessment report of Dr. Devlin, dated March 20, 2023, arising from an assessment conducted on March 9, 2023 and the physiatry material review report of Dr. Devlin, dated September 15, 2023 arising from a review of Dr. Jinoos Jianfar’s and Dr. H. Mohsini’s chronic pain physical assessment report. Dr. Devlin concludes that the applicant has suffered from cervical strain, a minor injury. This conclusion is consistent with the applicant’s medical records and with the lack of other identified injuries in Dr. Jianfar’s and Mohsini’s assessment.

31For the reasons set out above, I find that the applicant has not established on a balance of probabilities that removal from the MIG is warranted on the basis of chronic pain.

The applicant is not entitled to the treatment plans in dispute

32As I have found that the applicant is not removed from the MIG, I do not need to consider whether the disputed treatment plans are reasonable and necessary. The respondent’s submissions indicate that $200.13 remains within the MIG limit. The applicant is entitled to treatment up to the MIG limit.

Interest

33As the applicant is in the MIG there are no overdue benefits. Therefore, she is not entitled to interest in respect of the disputed treatment plans.

ORDER

34I find that: