Licence Appeal Tribunal File Number: 22-013246/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:
Yishan Xie
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Anil Hampole, Counsel
For the Respondent: Rebecca Brown Greer, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yishan Xie, the applicant, was involved in an automobile accident on June 27, 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, Co-operators General 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 a non-earner benefit (“NEB”) of $185.00 per week from September 9, 2021, to ongoing?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessments and Treatment Clinic Inc. in a treatment plan dated September 20, 2021?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.
4The applicant is not entitled to payment of a NEB.
5The applicant is not entitled to the treatment plan.
6The respondent is not liable to pay an award.
7No interest is payable.
ANALYSIS
Applicability of the Minor Injury Guideline
8Section 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.”
9An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside 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.
The applicant does not suffer a psychological impairment as a result of the accident that would take her out of the MIG
10I find the applicant has not demonstrated on a balance of probabilities that she suffered a psychological impairment because of the accident that would take her out of the MIG.
11Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.”
12The applicant submits that she should be removed from the MIG because the medical evidence demonstrates the need for physiotherapy treatment for her psychological injuries, as well as a psychological assessment to address her psychological treatment needs.
13The applicant relies on a treatment plan dated September 20, 2021, which was prepared by Dr. Sharleen McDowall, Psychologist. The treatment plan, which is also at issue in this hearing, indicates that the applicant sustained the following injuries because of the accident: specific (isolated) phobias, headache, nightmares, nonorganic sleep disorders, as well as irritability and anger. The pre-screening report sets out the applicant’s reported psychological injuries because of the accident, however there is no reference to psychological testing that was conducted, nor does the pre-screening report indicate that any medical records were reviewed.
14I also find that the applicant has not submitted any clinical notes and records or medical reports to corroborate any of the findings in the OCF-18.
15Furthermore, I note that the respondent submits that it requested a signed authorization from the applicant for the clinical notes and records of her family physician, walk-in clinics, specialists, and treatment providers on December 13, 2021, and on January 11, 2022, and to date none have been provided.
16I find the disputed treatment plan, on its own, is insufficient to establish that the applicant has suffered a psychological impairment. Given the lack of corroborating medical evidence, I find the applicant has not demonstrated on a balance of probabilities that she suffered a psychological impairment that would take her out of the MIG.
The applicant is not entitled to non-earner benefits
17I find that the applicant is not entitled to payment of a NEB as she has not demonstrated a complete inability to carry on a normal life.
18Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
19I am not persuaded by the applicant’s evidence, which consists of an OCF-3 dated August 31, 2021, prepared by Mr. Ahmed Afifi, Physiotherapist, indicating that the applicant suffers a complete inability to carry on a normal life due to injuries affecting most of her activities of daily living. The applicant did not submit any medical evidence to corroborate the OCF-3. Further, the applicant did not produce evidence of her pre-accident activities or her post-accident activities. As such, no comparison can be made.
20For these reasons, I find the applicant has not met her onus. I find, on a balance of probabilities, that she is not entitled to a NEB, as she has not demonstrated a complete inability to carry on a normal life because of the accident.
The applicant is not entitled to the treatment plan at issue
21As I have found the applicant's injuries to be subject to treatment within the MIG, it is not necessary for me to determine whether the disputed treatment plan is reasonable and necessary. The applicant is entitled to treatment up to the MIG limit.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
23The 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. Since no benefits were unreasonably withheld, the applicant is not entitled to an award.
ORDER
24The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. It is not necessary to determine the reasonableness and necessity of the disputed treatment plan. The applicant is entitled to treatment up to the MIG limit.
25The applicant is not entitled to payment of a NEB.
26The respondent is not liable to pay an award.
27No interest is payable.
28The application is dismissed.
Released: December 9, 2024
Laura Goulet
Adjudicator