Citation: Xie v. Pembridge Insurance Company, 2024 ONLAT 22-013192/AABS

Licence Appeal Tribunal File Number: 22-013192/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:

Xiao Tian Xie

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Anil Hampole, Counsel

For the Respondent:

Greg Specht, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Xiao Tian Xie, the applicant, was involved in an automobile accident on June 12, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, Pembridge Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The 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 $3,909.56 for physiotherapy services, proposed by Total Recovery Rehab, in a treatment plan, dated May 17, 2022?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessment & Treatment Clinic, in a treatment plan, dated July 2, 2021?

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

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?

RESULT

4I find that the applicant’s injuries meet the definition of “minor injury” under the Schedule. The applicant is not entitled to the disputed treatment plans, interest or an award.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

a) The Minor Injury Guideline

5I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 MIG funding limit on treatment, which the parties agree has been exhausted.

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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

8In this matter, the applicant submitted that he is removed from the MIG because of his physical and psychological impairments.

b) Physical injuries

9I find that the applicant has not demonstrated that he suffers from physical injuries that would warrant removal from the MIG.

10The applicant submits that he should be removed from the MIG based on his physical injuries. He first relies on the clinical note of Dr. Heung-Wing Li, family physician, of the Birchwood Walk-In Clinic, dated June 25, 2021, where Dr. Li diagnosed the applicant with back strain and Post-Traumatic Stress Disorder (“PTSD”).

11The applicant, however, only saw Dr. Li on one occasion following the accident on June 25, 2021, which was a virtual appointment. Dr. Li relied upon the applicant’s self-reporting of his complaints and diagnosed the applicant with a back strain without performing a physical assessment. While medications were prescribed by Dr. Li, the applicant has not provided any evidence that these prescriptions were filled or that the applicant took the medications prescribed, despite the Case Conference Report and Order (“CCRO”) ordering production of these records. There are no further clinical notes and records (“CNRs) that indicate visits to Dr. Li regarding any accident-related complaints.

12The applicant further relies on the treatment plan prepared by Total Recovery, dated May 17, 2022, to support his ongoing physical impairments. This treatment plan lists his injuries as WAD II with complaints of neck pain with musculoskeletal signs, sprain and strain of thoracic spine, sprain and strain of shoulder, sprain and strain of lumbar spine and pelvis, slowness and poor responsiveness, sleep disorder, stress, unhappiness, malaise and fatigue.

13I find the decisions cited by the respondent of C.S. v. Wawanesa Mutual Insurance Company, 2019 CanLII 122728 (ON LAT) and Karabulut v Economical Insurance Company, 2021 CanLII 124024 (ON LAT) persuasive, and find that treatment plans on their own are not sufficient evidence of injuries warranting a removal from the MIG. Further, the applicant has not provided any CNRs from Total Recovery setting out the treatment that he received there or documenting his ongoing complaints.

14I find that the applicant has not provided the Tribunal with any other objective medical records to support his position that his physical impairments warrant his removal from the MIG.

15For the reasons set out above, I find that the applicant has not proved on a balance of probabilities that he suffers from physical injuries that would warrant removal from the MIG.

c) Psychological Injuries

16I find that the applicant has not proven on a balance of probabilities that he suffers from psychological injuries that would warrant removal from the MIG.

17The applicant submits that he suffers a psychological impairment as a result of the accident. He relies on the clinical note of Dr. Li, dated June 25, 2021 where he is diagnosed with PTSD. He further relies on the treatment plan prepared by Dr. Sharleen McDowall, psychologist, dated July 2, 2021. The treatment plan at Part 6 lists the applicant’s injuries as specific (isolated) phobias, headache, nightmares, nonorganic sleep disorders, irritability and anger. Attached to the treatment plan is a Pre-Screening Report, prepared by Mandy Fang, social worker who interviewed the applicant on June 22, 2021, and subsequently recommended a psychological assessment.

18I find that the clinical note of Dr. Li, dated June 25, 2021, which diagnoses the applicant with PTSD, does not provide any particulars as to how Dr. Li made the diagnosis or what diagnostic criteria was used. Dr. Li relies upon the self-reporting of the applicant that his mood is not good and agitated, that he suffers nightmares, and he has driving phobias. In addition, Dr. Li’s referral for a psychological assessment was made after the applicant had already participated in the pre-screen assessment with Ms. Fang.

19I find the decision in S.N. v. Certas Direct Insurance Company, 2020 CanLII 43644 (ON LAT) (“S.N.”) cited by the respondent persuasive. In S.N. the Tribunal held:

For this Tribunal to find that an applicant is removed from the MIG by virtue of psychological injury, the applicant must show an actual psychological impairment. Some case law has required that the impairment be severe or extreme. Self-reported symptomology, even when noted down by a psychologist, are not sufficient. Dr. Shaul did not conduct any tests or objective assessments of the applicant’s symptoms to determine what the underlying impairment might be.

20I find that the Pre-Screening Report, prepared by Ms. Fang was based on the self-reported symptoms of the applicant. There is no indication within the pre-screening report as to the source of the referral, which was two weeks post-accident, how the interview was structured, nor whether the interview was conducted in person or by telephone. There is also no indication that Ms. Fang conducted any testing or objective assessments of the applicant’s symptoms to determine what the underlying impairment might be.

21I find that the applicant has not provided the Tribunal with any other objective medical records to support his ongoing psychological impairments or that his psychological impairments would warrant his removal from the MIG.

22For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition that would warrant removal from the MIG. Therefore, I find that the applicant sustained predominantly minor injuries as a result of the accident that fall under the MIG.

The applicant is not entitled to the disputed treatment plans

23As the applicant continues to be within the MIG, and the MIG limits have been exhausted, the applicant is not entitled to the treatment plans in dispute.

Interest

24As the applicant continues to be within the MIG and there is no overdue payment of benefits, there is no interest payable.

Award

25The applicant sought an award under s. 10 of Reg. 664. Where I have determined that no benefits are payable to the applicant, it follows that I have no basis on which to grant an award due to the respondent unreasonably withholding or delaying the payment of benefits.

ORDER

26For the reasons outlined above, I find:

i. The applicant’s injuries meet the definition of “minor injury” under the Schedule;

ii. The applicant is not entitled to the two treatment plans in dispute;

iii. The applicant is not entitled to interest or an award; and

iv. The application is dismissed.