Citation and Parties

Citation: Wang v. The Dominion of Canada General Insurance Company, 2024 CanLII 79226 Licence Appeal Tribunal File Number: 22-009158/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:

Mei Ling Wang

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Dilraj Sandhu, Counsel

HEARD: In Writing

OVERVIEW

1Mei Ling Wang, 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”). The applicant was denied benefits by the respondent, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are to be decided:

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 limit?

ii. Is the applicant entitled to $193.97 ($1,293.37 less $1,100.00 approved) for physiotherapy services from Easy Health Centre proposed in a treatment plan dated August 31, 2021?

iii. Is the applicant entitled to $1,884.04 for physiotherapy services from Easy Health Centre proposed in a treatment plan dated October 19, 2021?

iv. Is the applicant entitled to $1,358.00 for physiotherapy services from Easy Health Centre proposed in a treatment plan dated December 7th, 2021?

v. Is the applicant entitled to $118.34 for prescription medication submitted on an expense claim form (OCF-6) dated September 20, 2021?

vi. Is the applicant entitled to $57.80 for prescription medication submitted on an expense claim form (OCF-6) dated September 28, 2021?

vii. Is the applicant entitled to $2,200.00 for psychological assessment at Somatic Assessments And Treatment Clinic, proposed in a treatment plan dated July 2, 2021?

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

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

RESULT

3I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

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

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

iv. The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule 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.”

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits she suffers from physical and psychological conditions that prevents her from maximum recovery within the MIG. The respondent submits that the applicant has failed to establish that her injuries are not predominately minor that they cannot be treated within the confines of the MIG.

The applicant did not suffer physical injuries that warrant removal from the MIG

8I find that the evidence establishes that the applicant’s physical injuries fall within the definition of minor injury under s.3(1) of the Schedule.

9The applicant has provided limited submissions as to how her accident-related physical injuries fall outside of the MIG. The applicant submits that following the accident she had back and shoulder pain. Medical records provided by the applicant do not support her claim of physical injuries that would warrant treatment outside of the MIG. The applicant relies on self-reports of pain to Dr. Souhaila Hammound, family physician, who opined in the clinical notes and records (“CNRs”) that the applicant should attend physiotherapy and massage therapy. Furthermore, Mr. Michael Santhosh, physiotherapist, dated June 22, 2021, who opined that the applicant had sprain and strain related injuries.

10The respondent submits that the evidence provided by the applicant demonstrates no more than sprain and strain injuries as a result of the accident. The respondent relies on the CNRs of Dr. Hammoud including an x-ray result of the applicant’s shoulder and neck which was unremarkable. The CNRs of Mr. Santhosh, and Mr. Sreejith Jayanth, physiotherapist, which found the applicant sustained soft-tissue injuries and the section 44 physiatry assessment report of Dr. Yuri Marchuk, physiatrist, dated December 3, 2021, which diagnosed the applicant with WAD-2 injuries and determined that the applicant’s injuries fell within the MIG.

11After reviewing the evidence, I am persuaded by the respondent. The applicant has not provided compelling evidence that she suffers physical injuries that would remove her from the MIG. The entirety of the medical evidence before me supports a finding that the applicant sustained minor soft tissue injuries, which fall squarely within the definition of a minor injury under s. 3 of the Schedule.

12As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal from the MIG.

The applicant did not suffer psychological injuries that warrant removal from the MIG

13I find that the evidence establishes that the applicant’s psychological injuries fall within the definition of minor injury under s.3(1) of the Schedule.

14An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

15In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

16The applicant submits that her psychological injuries after the accident are well documented, relying on the pre-screening treatment and assessment plan of Dr. Sharleen McDowall, psychologist, conducted by Mandy Fang, social worker, dated June 15, 2021. The assessment concludes that the applicant is experiencing many of the symptoms commonly found in individuals suffering from post-accident psychological impairment. Furthermore, the applicant relies on the CNRs of Dr. Hammound that references her complaints of insomnia.

17The respondent takes issue with the applicant’s position that her insomnia was triggered by the accident. It is the respondent relies on November 24, 2021, finding of Dr. Ahmed Al Sabbagh, internist, at the Sleep Medical Centre, who diagnosed the applicant with primary snoring without obstructive sleep apnea. The CNRs of Dr. Sabbagh reveal the applicant provided no reference to the accident. The respondent further argues that Ms. Fang’s pre-screening treatment and assessment plan did not state whether it was held in person or virtually, did not reference the professional qualifications of Ms. Fang, and did not indicate if any of the applicant’s medical documentation was relied on as part of the pre-screening.

18After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers from a psychological impairment as a result of the accident hat would remove her from the MIG. I assign little weight to the pre-screening treatment and assessment plan, prepared by Ms. Fang, as it does not diagnose an actual psychological impairment and it does not refer to reviewing the applicant’s medical documentation as part of the preparation. I detailed review of the applicant’s medical documentation would have revealed that the applicant has not raised any psychological complaints, been referred to any psychologist specialists to address any psychological complaints or no medication prescribed. I place the most weight on the CNRs of Dr. Hammound which demonstrates insufficient evidence that the applicant made complaints to her family doctor about any psychological impairments as a result of the accident.

19As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.

20The applicant is not entitled to the disputed treatment plans because I have found that the applicant is subject to the MIG. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

INTEREST

21Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

AWARD

22The 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 does not provide persuasive evidence that the respondent withheld any services. No award is granted.

ORDER

23The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

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

iii. The applicant is not entitled to interest; and

iv. The applicant is not entitled to an award.