Citation and File Number

Citation: Wu v. Unica Insurance Inc., 2024 ONLAT 22-003379/AABS

Licence Appeal Tribunal File Number: 22-003379/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.

Parties

Between:

Jian Yuan Wu

Applicant

and

Unica Insurance Inc.

Respondent

Decision

VICE-CHAIR: Julian DiBattista

Appearances

For the Applicant: Anil Hampole, Counsel

For the Respondent: Angela Comella, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jian Yuan Wu, the applicant, was involved in an automobile accident on August 24, 2020, 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, Unica Insurance Inc., 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 $3,989.56 for physiotherapy services, proposed by Total Recovery Rehab in a treatment plan/OCF-18 (“plan”) dated December 11, 2020?

iii. Is the applicant entitled to $70.00 for medical services, proposed on an OCF-6 dated July 27, 2021?

iv. Is the respondent liable to pay an award under s. 10 of O. 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 has not proven injuries which fall outside the scope of the MIG.

4The applicant is not entitled to any of the disputed treatment plans.

5There is no entitlement to interest or an award under O. Reg. 664.

PROCEDURAL ISSUES

6The respondent has raised a procedural issue.

7In their submissions, the applicant has added the following as an issue in dispute:

i. Is the applicant entitled to receive a cost of examination benefit in the amount of $2,000.00 for a psychological assessment at Perfect Choice Psychological Services, set out in treatment and assessment plan (OCF-18) dated October 12, 2016?

8Section 25.0.1 of the Statutory Powers Procedure Act gives the Tribunal the right to make orders with respect to the procedures and practices that apply in a proceeding.

9The Tribunal has previously ordered that the issues in dispute be those listed in paragraph [2]. This order was made on consent during a case conference held on January 25, 2023.

10There has been no motion to include an additional issue, nor has this request been made in written submissions to the Tribunal.

11The applicant has not made any reply submissions, despite having an opportunity to do so.

12Therefore, the issues in dispute remain as defined in the Tribunal’s order following the January 25, 2023 case conference.

ANALYSIS

The applicant’s injuries are minor in nature

13I have found that the applicant’s injuries are minor in nature.

14An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1) of the Schedule. The Tribunal has previously determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.

15The applicant submits that they should be removed from the MIG on the basis of a psychological condition, diagnosed by Dr. H. Li, the applicant’s family physician on July 23, 2021. The applicant also points to comments made in a screening report by Dr. S. McDowell, psychologist, contained within an OCF-18 for a psychological assessment as evidence of a psychological impairment. I do not agree with the applicant’s position.

16The respondent submits that there is no evidence of a psychological diagnosis in Dr. Li’s notes. The respondent references a s.44 assessment conducted by Dr. K. McCutcheon, psychologist, on February 28, 2023 where Dr. McCutcheon found the applicant’s mild accident-related psychological issues fall within the limits of the MIG.

17The applicant has submitted clinical notes and records from a single visit with Dr. Li that occurred on July 23, 2021. The applicant points to a single line where Dr. Li has written only “PTSD”.

18The respondent points to a paragraph in the same note which states “generally physically well with adequate hygiene normal judgement and no cognitive problem w normal motor function. cooperative, normal mental competence. Pt is clearly not sad and with significant no depressed affect.” [sic].

19Given the detailed paragraph above, contained within the same note, I cannot accept that having the letters “PTSD” appear in the note is evidence of a diagnosed psychological impairment which would warrant the applicant’s removal from the MIG. Such a conclusion is inconsistent with the balance of Dr. Li’s note.

20It is well established by the Tribunal that comments within an OCF-18 are not evidence of a diagnosis. A screening report contained in an OCF-18 is not evidence of a diagnosed psychological impairment that would warrant removal from the MIG in the absence of any further medical documentation.

21For these reasons I find that the applicant has not met their onus to prove a psychological impairment that would warrant removal from the MIG.

The applicant has exhausted the MIG limit and is not entitled to further treatment

22I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans as the respondent has submitted the $3,500.00 MIG limit has been exhausted. The applicant did not rebut this assertion, despite the availability of reply.

Interest

23As there are no benefits owing, I find that no interest is payable pursuant to s. 51 of the Schedule.

Award

24The applicant is not entitled to an award under s. 10 of Reg. 664.

25The 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.

26The applicant submits that they should be entitled to an award as the respondent acted in bad faith by not removing the applicant from the MIG and approving the disputed benefits.

27As I have found that the applicant has not proven injuries which fall outside of the MIG and is therefore not entitled to any of the disputed benefits, I find that there is no basis for an award under s.10 of Reg. 664.

ORDER

28For the reasons above, I find that:

i. The applicant sustained predominantly minor injuries as defined under the Schedule;

ii. The applicant is not entitled to any of the disputed treatment plans;

iii. The applicant is not entitled to an award under Regulation 664;

iv. No interest is payable; and

v. This application is dismissed.