Lim v. Wawanesa Mutual Insurance Company, 2023 CanLII 7277

Citation: Lim vs. Wawanesa Mutual Insurance Company, 2023 ONLAT 20-006408/AABS

Licence Appeal Tribunal File Number: 20-006408/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:

Sunny Lim

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Sunny Lim, Applicant

For the Respondent: James Schmidt, Counsel

Teleconference Hearing: December 5, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant, Mr. Lim, was involved in an automobile accident on December 26, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).¹

2Mr. Lim’s injuries were classified as minor and he was entitled to benefits up to the maximum payable under the Schedule, $3,500.00. Mr. Lim applied to the respondent, Wawanesa Mutual Insurance Company², for additional treatment for physiotherapy and a psychological assessment. Mr. Lim was denied the benefits by Wawanesa and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).³

ISSUES

3The issues in dispute in this hearing are:

a. Did Mr. Lim sustain predominantly minor injuries as defined under the Schedule?

b. Is Mr. Lim entitled to attendant care benefits of $286.66 per month from January 5, 2019, to date and ongoing?

c. Is Mr. Lim entitled to three treatment plans for physiotherapy and one treatment plan for a psychological assessment?

d. Is Mr. Lim entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

e. Is Mr. Lim entitled to interest on any overdue payment of benefits?

RESULTS

4Mr. Lim’s accident-related injuries are considered minor. Mr. Lim has used all the funds available to him under the Schedule. Therefore, there is no more funding available for additional treatment or assessments. Since Mr. Lim’s injuries are properly classified as minor, attendant care benefits are not available to him. Since no benefits are owed, Mr. Lim is not entitled to an award or interest.

ANALYSIS

5Mr. Lim was injured in a car accident on December 26, 2018. Mr. Lim’s vehicle was travelling straight while another vehicle turned left in front of him. Mr. Lim’s vehicle t-Boned the car in front of him. As a result of the accident, Mr. Lim testified that he hurt his neck and he has numbness in his left hand. He testified that since he does not have any benefits, he requires more treatment to improve upon his injuries.

6After a car accident, an insured person’s injuries are placed into one of three categories; minor, non-catastrophic and catastrophic. Depending on which category the injuries are placed in determines the amount of funding and benefits that are available to that person. In this case, Mr. Lim’s injuries were categorized as minor.

7A “minor injury” is defined in section 3(1) of the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on medical and rehabilitation benefits.

8To request treatment above the $3,500.00 funding limit, Mr. Lim must prove, on the balance of probabilities, that his injuries do not fall within the definition of minor injury in section 3(1) of the Schedule⁴. Mr. Lim can establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit⁵; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

9Mr. Lim argues that as a result of the accident he had neck pain and numbness in his left hand. He testified that before the accident he was in perfect health and capable of working his very physical part-time job. He testified that after the accident, he was having difficulties holding very heavy objects with his left hand at work which made him depend on and caused strain on his right arm and hand. He also testified that he can no longer do some of the heavier chores at home and he uses a scrub brush to help him shower. He said that with treatment from the clinic, in addition to acupuncture and electronic pulse treatments, the numbness in his left hand has improved by 90%. Mr. Lim testified that the Chinese doctor who treated him with electronic pulses and acupuncture really improved his impairments, but he had to pay out of pocket for those services. Mr. Lim is requesting that the insurance company compensate him for those treatments.

10Mr. Lim argues that his injuries should not be treated as minor because he was diagnosed with radiculopathy of the cervical spine and a left arm bicep injury. Wawanesa argues that the traditional Chinese doctor diagnosed Mr. Lim with something outside of his scope of practice and therefore it cannot be relied upon. Wawanesa also relies on its s. 44 assessment conducted by an orthopedic surgeon who opined the injuries are properly classified as minor. Wawanesa also relies on s. 44 assessment by a psychologist who opined Mr. Lim does not suffer from any psychological disorders.

11Upon review of the evidence. Mr. Lim relies on a letter from his Chinese doctor who diagnosed him with cervical radiculopathy and a left bicep injury. Upon review of the letter, the doctor that Mr. Lim referred to as a “Chinese doctor”, is a registered osteopath and acupuncturist. Wawanesa relies on the s. 44 report of Dr. Tansey an orthopedic surgeon. He opined that based on a purely orthopedic perspective Mr. Lim’s injuries appear to be minor. Dr. Tansey did express that if Mr. Lim continued to have ongoing issues with numbness he should see his family doctor for further testing or a referral to the appropriate specialist.

12I prefer Wawanesa’s report over the letter from Ying Yu, osteopath, because Dr. Tansey’s report is thorough, indicates the tests he used, and provides an explanation of how he arrived at his conclusions. The letter from Ying Yu is a summary of his clinical notes, it is brief and does not explain how he concludes that Mr. Lim is suffering from cervical radiculopathy. Mr. Lim testified that he has not seen his family doctor after the accident, so no other tests were performed or specialists were seen for his injuries.

13On the balance of probabilities, I find Mr. Lim’s injuries are properly classified as minor. In the absence of any objective tests or a diagnosis from a practitioner in the appropriate medical field, it is difficult for Mr. Lim to prove he is suffering from injuries that are not minor on solely his own self-reports. Therefore, I find he sustained soft tissue injuries as a result of the accident and the injuries should be classified as minor. The only impairment that remains is some numbness in his left finger. He testified that most of the numbness has resolved, and he no longer has any neck pains. In addition, the letter from Ying Yu concludes that Mr. Lim is now cured. Mr. Lim also testified that he does not have any psychological impairments.

14I find that since Mr. Lim’s injuries were properly classified as minor and there is no longer any more funding for treatment, I decline to decide on whether the treatment plans are reasonable or necessary. Because of the classification of his injuries, Mr. Lim is not entitled to attendant care benefits. Since no benefits are owed, he is not entitled to an award or interest.

15The application is dismissed and the Tribunal will close its file.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 as amended. (“Schedule”)
2. 2Wawanesa Mutual Insurance Company will be referred to as “Wawanesa”
3. 3Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”)
4. 4Scarlett v. Belair, 2015 ONSC 3635 para 24
5. 5The Schedule Section 18(2)