Citation: Wang v. Wawanesa Mutual Insurance Company, 2024 ONLAT 22-010137/AABS

Licence Appeal Tribunal File Number: 22-010137/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:

Shao Chi Wang

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Anil Hampole, Counsel

For the Respondent:

Nicholas M. Wine, Counsel

HEARD: In Writing

1Shao Chi Wang, the applicant, was involved in an automobile accident on July 29 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, Wawanesa Mutual 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? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $4,389.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated February 9, 2022?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a plan dated October 1, 2021?

iv. Is the applicant entitled to $101.21 ($107.61 less $6.40 approved) for medication, submitted on a claim form (OCF-6) dated September 3, 2021?

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

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

RESULT

3I find that:

i. The applicant has not met his onus to prove that his accident-related impairments warrant removal from the MIG.

ii. As the MIG limits have been exhausted, the applicant is not entitled to additional funding for the treatment plans (OCF-18) and prescription medications (OCF-6) identified above.

iii. The applicant is not entitled to interest.

iv. The applicant is not entitled to an award.

4The application is dismissed.

ANALYSIS

Minor Injury Guideline

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

6An insured person 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 from any accident-related minor injury 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.

7The applicant submits that his persistent physical symptoms and psychological injuries warrant removal from the MIG.

8In his submission to the Tribunal, the applicant submitted that he was struggling to overcome neck and shoulder pain, and experiencing difficulty sleeping, fatigue, low energy and decreased tolerance for sitting or standing.

The applicant has not suffered physical injuries that warrant removal from the MIG

9The medical evidence the applicant has submitted points to sprains and strains, which are explicitly identified in section 3 of the Schedule as ‘minor injuries.’

10The applicant phoned his General Practitioner, Dr. Heung-Wing Li, approximately three weeks after the motor vehicle accident and communicated that he was experiencing agitation, with an inability to concentrate and study, nightmares and a phobia with driving, along with pain in his lower back. Dr Li diagnosed a possible case of PTSD and a neck sprain/strain. Dr. Li provided prescriptions for four medications. I note that Dr Li’s Clinical Notes indicates the reason for a visit as “mVA.” There was no explanation provided for the prescription medications.

11The applicant did not include clinical notes and records (CNR’s) of any later visits to Dr Li in his submissions, or CNR’s of any physiotherapy treatments.

12The applicant’s evidence shows that he visited physiotherapist Ahmed Afifi approximately six months after his visit to Dr Li. He reported difficulty sleeping, low energy and other physical ailments. Mr Afifi recommended the physiotherapy treatment plan identified as issue ii above.

13In the applicant’s submission, Mr. Afifi listed “difficulty sleeping, low energy and fatigues quickly, difficulty with some housekeeping tasks, decreased sitting, standing and walking tolerance, an inability to do tasks that require heavy lifting and carrying, and an inability to do tasks that require repetitive bending and twisting.”

14The applicant did not provide sufficient supporting evidence of non-minor injuries. The only supporting medical evidence was a telephone conversation with a general physician, and the OCF-18 from Mr Afifi. Since the consultation was done over a telephone conversation, Dr Li was unable to physically examine the applicant.

15I find that the evidence submitted by the applicant does not warrant removal from the MIG for physical injuries. The medical evidence submitted from Dr. Li was based on self-reporting during a telephone conversation. While Dr Li did diagnose a possible case of PTSD, he was unable to physically examine the applicant and accordingly, diagnosed a potential neck sprain/strain. Both a sprain and a strain are conditions which are captured under the MIG.

16The OCF-18 from the Physiotherapist, Mr. Afifi, lists 23 potential diagnoses, with the most severe being listed as ‘headache, dizziness, giddiness, slowness, poor responsiveness, and disturbance of attention or activity.’

17The medical evidence submitted by the applicant consistently points to physical injuries considered ‘minor’ in nature.

The applicant has not suffered psychological injuries that warrant removal from the MIG

18The applicant stated he was having problems with nightmares, general fatigue and other psychological injuries as a result of the accident which warrant removal from the MIG because psychological impairments are not captured by the s. 3(1) definition.

19The applicant visited the clinic of Dr. Sharlene McDowall on August 25, 2021 to be assessed for psychological injuries. Dr. McDowall submitted an OCF-18, recommending further testing to determine the exact nature of his psychological injuries.

20The respondent’s position is that the statement “further testing is necessary” is evidence that the onus has not been met.

21The applicant did not provide evidence to corroborate the telephone conversation with his physician, and an OCF-18 from a physiotherapist. I find the clinical note of Dr. Li and the OCF-18 fail to establish the existence of a psychological impairment.

22I find Dr Li’s notes do not carry significant weight because Dr. Li was basing that initial diagnosis on the applicant self-reporting their symptoms during a telephone conversation, shortly after the accident occurred. Dr Li’s notes say “the limitation of the interview cannot replace the need for a physical exam.”

23The applicant did not submit additional evidence pointing to ongoing follow up or further complaints.

24In the applicant’s submission, Dr. McDowall stated the applicant “needs to undergo a full psychological assessment battery including psychometric testing and a thorough, in-depth clinical interview to determine his clinical diagnosis and psychological treatment needs.”

25The applicant did not submit other psychological test results to support removal from the MIG on psychological grounds.

26I find the applicant has not provided evidence to support the claim that, on the balance of probabilities, his injuries warrant removal from the MIG.

Treatment Plans

27I find the applicant has not met the onus of proving that treatment beyond the MIG is warranted. Both parties agree that the MIG limits have been exhausted and no further funding is available. As a result, an analysis into whether the treatment plans are reasonable and necessary is not required.

OCF-6 Expenses

28The applicant sought reimbursement for medication, as claimed in an OCF-6. The MIG limits is exhausted. Therefore, no additional funding is owed by the respondent for medications.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, no interest is awarded.

Award

30The 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 is not entitled to benefits, so therefore I find the respondent did not unreasonably withhold benefits. No award will be granted.

ORDER

31I find that:

i. The applicant has not met the onus to prove that his accident-related impairments warrant removal from the MIG.