Citation: Han v. Intact Insurance Company, 2023 ONLAT 21-012066/AABS

Licence Appeal Tribunal File Number: 21-012066/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 Han

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Maka Metreveli, Paralegal

For the Respondent:

Joseph Kositsky, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Yi Han, the applicant, was involved in an automobile accident on October 8, 2019, 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 Intact Insurance Company, the respondent, 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 the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?

2. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment proposed by Perfect Choice Psychological in a treatment plan dated March 2, 2021?

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

RESULT

3I find that the applicant sustained a predominantly minor injury as a result of the accident. She is not entitled to the plan in dispute because it proposes goods and services that fall outside the MIG and the $3,500.00 funding limit on treatment.

4No interest is payable.

5The application is dismissed.

ANALYSIS

Minor Injury Guideline (MIG)

6Section 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.”

7An 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 a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

Psychological Impairment

8The applicant claims that she suffers from a psychological impairment as a result of the accident. She relies on (a) an entry in the clinical notes and records of her family doctor on February 9, 2021, where he referred the applicant for a psychological assessment, and (b) the opinion of Dr. L. Bao, psychologist, that she suffers from an adjustment disorder with mixed anxiety and depressed mood (moderate severity), and specific phobia (driving).

9In order to be removed from the MIG based on psychological impairments, the applicant must show that she has an actual psychological impairment and not just symptomatology. A psychological diagnosis must establish the development of ongoing, substantive post-accident symptomatology or a clinically significant psychological impairment. I find that the applicant has not provided any corroborative evidence to sufficiently demonstrate that she suffered significant psychological impairments that would prevent maximal medical recovery if she remains within the MIG.

10According to Dr. Bao’s report dated March 24, 2021, the applicant reported sleep problems, feeling of sadness, being anxious and depressed, she isolated herself and avoided going out and driving. Despite having scored in the average range for depression, anxiety and somatization on the Pain Patient Profile, Dr. Bao noted that she reported significant symptoms of depression, anxiety, and somatization in coming to his diagnoses.

11The respondent relies on the insurer’s examination reports of Dr. M. Mandel, psychologist. His initial report, dated May 14, 2021, indicates that the applicant returned to work on regular hours and duties a few days after the accident. She reported engaging in sleep easily, but woke about once a week from non-accident-related nightmares. She reported diminished sexual activity, which she attributed to having recently given birth. She was independent with her self-care. She reported feeling more emotional. There was no diminished interest in activities, she denied feelings of worthlessness, she described a good relationship with her husband, and limited stress. She continued to drive but was more cautious when driving. She reported that if she felt anxious she was able to relax herself by focusing on something else. Based on the interview and clinical testing, Dr. Mandel concluded that there was a lack of consistent objective information to support a psychological diagnosis or suggest that she suffered from clinically significant symptoms that would indicate a substantial psychological impairment.

12Dr. Mandel maintained his opinion in an addendum report dated March 28, 2022, after having reviewed Dr. Bao’s report.

13Dr. Mandel evaluated the applicant a second time, on May 27, 2022. She again reported sleeping easily. She reported diminished sexual activity because she was sleeping with her daughter. She reported feeling down about once a month which she attributed to being lonely. She reported being more stable emotionally, and she reported no prolonged sadness, feeling down, or diminished interest. She felt fatigued easily and had difficulty with concentration at times. She continued to drive and noted that any nervousness was addressed by the autopilot feature on her vehicle. Dr. Mandel maintained than the applicant had not sustained any diagnosable psychological impairment.

14The clinical notes and records of the family doctor, Dr. Bi, do not contain any complaints of any psychological symptoms in the year following the accident. On February 9, 2021, a few months after the birth of her daughter, the applicant reported “low mood after MVA and delivery. Would like a referral to see psychology for insurance purposes”. Dr. Bi made a referral to a psychologist for “low mood post-partum”.

15I prefer the reports of Dr. Mandel, as they are more detailed and consistent with the bulk of the evidence. The psychological symptoms reported by the applicant are minor and do not warrant removal from the MIG.

16Having found that the applicant suffered injuries that are captured within the MIG, she is not entitled to the treatment plan in dispute because it proposes goods and services that are not included in the MIG and above the funding limit.

ORDER

17The Applicant sustained a minor injury as a result of the accident.

18The Applicant is not entitled to the treatment plan outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.

19Given there are no benefits owed or payments outstanding no interest is payable.

20The application is dismissed.