Licence Appeal Tribunal File Number: 23-013439/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:
Bin Jiang
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Devon McIntyre, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Bin Jiang, the applicant, was involved in an automobile accident on March 16, 2022, 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, Economical Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues to be decided in the hearing are:
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 $140.00 remains in the MIG limit.
Is the applicant entitled to $2,200.00 for psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan (“OCF-18”) submitted April 1, 2022?
Is the applicant entitled to the services proposed by UHeal Rehab Centre, as follows:
i. $249.40 ($1,300.00 less $1,050.60 approved) for physiotherapy services, in an OCF-18 submitted May 18, 2022; and,
ii. $3,749.56 for physiotherapy services, in an OCF-18 submitted October 12, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits
RESULT
3The applicant’s injuries are minor and subject to treatment within the $3,500 MIG limit. He is not entitled to the benefits in dispute, interest or an award.
ANALYSIS
The applicant’s accident-related impairments fit within the MIG
4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”
5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on a balance of probabilities that his accident-related impairments fall outside of the MIG.
6The applicant argues that he should be removed from the MIG because he suffers from chronic pain as a result of the accident which has resulted in functional impairment. In addition, he also submits that he sustained a psychological impairment which removes him from the MIG. In support of his position, he relies on a clinical note and record (“CNR”) of Dr. Fong, family doctor and records of UHeal, his treating clinic. He also relies on the pre-screen psychological report of Bruce Cook, psychological associate who made a provisional psychological diagnosis.
7The respondent submits that the applicant’s accident-related impairments fall within the definition of the MIG. It maintains that the medical evidence relied upon by the applicant supports that he sustained a minor injury. It relies on the insurer examination (“IE”) report of Dr. Belfon, General Practitioner dated September 10, 2024, who diagnosed the applicant with soft tissue injuries which fall within the MIG.
8I find the applicant sustained a minor injury for the following reasons.
Chronic Pain
9First, I find the medical evidence relied upon by the applicant fell short of meeting his onus that he suffers from chronic pain as a result of the accident that warrants removal from the MIG. The applicant relies on one CNR of his family doctor from the day after the accident which notes that he complained of a sore wrist, bruised knee and back pain. The family doctor diagnosed him with whiplash syndrome, soft tissue injuries and a contusion. I find these diagnoses fit within the definition of the MIG.
10Second, the applicant relied on the CNRs of UHeal which consist of attendance sheets that confirm he attended treatment, a disability certificate (“OCF-3”) and various OCF-18s authored by Ahmed Afifi, physiotherapist. These insurance forms list sprain and strain impairments, whiplash, sleep disorder, nervousness, anxious personality disorder and emotional shock. I find the physical impairments listed on the forms fit within the MIG. I also find that it is outside a physiotherapist’s scope of practice to render a psychological or sleep disorder diagnosis. The insurance forms also note that the applicant has various functional impairments, such as requiring modified work. It is well established that OCF-3s or insurance forms on their own are insufficient evidence in support of a claim for accident benefits. I find that all the treating clinic’s records support is that the applicant attended for treatment in the months following the accident. There are no reports within these records which support that the applicant suffers from either chronic pain or a psychological impairment. For these reasons, I give the CNRs of UHeal little weight.
11In contrast, the respondent relies on the IE report of Dr. Belfon who concluded that the applicant sustained soft-tissue injuries which can be treated in the MIG. I accept this doctor’s opinion because he reviewed medical documents and conducted a physical examination which supported this conclusion. I also find Dr. Belfon’s opinion consistent with the medical evidence before me.
12The applicant submits that it is well established law that if pain persists for a period of 3 to 6 months with evidence of functional impairment it supports that an individual suffers from chronic pain. Although this may be true, I find the applicant has not proven that he has any functional impairments as a result of any accident-related impairment. In my view, submissions are not evidence. Further, the one CNR of the family doctor does not list any functional impairments and as already noted above, the insurance forms on their own are insufficient. I conclude that the applicant has not met his onus in proving that he suffers from chronic pain which removes him from recovery within the MIG.
Psychological Impairment
13I find that the applicant did not sustain a psychological impairment as a result of the accident which removes him from the MIG for the following reasons.
14I do not find the pre-screen psychological assessment report of Bruce Cook, psychological associate, dated April 1, 2022 persuasive because the therapist relied solely on the applicant’s self-reports in conducting the assessment. He did not conduct any psychological testing and did not review any medical records. Despite this, the therapist provided a provisional diagnosis of adjustment disorder with anxiety and depressed mood. I find it unclear how the therapist made this diagnosis in the absence of any testing or medical records which support the applicant’s reported psychological symptoms. I also find there is a lack of contemporaneous CNRs that establish that the applicant made any psychological complaints to either his family doctor or his treating clinic. Other than the insurance forms, which I do not find convincing, there were no psychological complaints in UHeal’s records. Further, for the reasons noted above, I do not accept the physiotherapist’s psychological diagnoses.
15For the above-noted reasons, I find the applicant has not met his onus in proving on a balance of probabilities that he suffers from either chronic pain or a psychological impairment which warrants removal from the MIG.
16Since the OCF-18s in dispute seek treatment outside of the MIG and there is only $140.00 remaining in the limit it is unnecessary for me to determine whether they are reasonable and necessary. However, the applicant also argues that the respondent did not comply with s. 38(8) of the Schedule in its notice denying the OCF-18s in dispute which I will address next.
Non-compliance with s. 38(8) of the Schedule
17Section 38(8) of the Schedule sets out that within 10 business days of receipt of a treatment plan, insurers are required to provide an insured with a notice, identifying the goods and services described in the treatment plan that it agrees to pay for and the medical and all other reasons why it considers the goods and services not to be reasonable and necessary. In addition, if an insurer believes that the MIG applies it shall indicate so in its denial pursuant to s.38(9). The consequence of an insurer’s failure to comply with s. 38(8) and (9) is that the benefits are payable as set out in s.38(11). If an insurer fails to advise that it believes that the MIG applies, then an insurer must pay the benefit.
18The applicant submits that the respondent failed to comply with s. 38(8) in its denial of all the OCF-18s in dispute. In particular, it failed to provide a medical reason for its denials. The respondent maintains that its denials of the OCF-18s complied with s. 38(8) of the Schedule.
OCF-18 for Psychological Assessment submitted April 1, 2022
19The respondent sent the applicant an Explanation of Benefits (“EOB”) dated April 11, 2022, denying the OCF-18 for a psychological assessment. In its correspondence it advised the applicant that the OCF-18 for a psychological assessment is not reasonable and necessary because “we have not been provided with any CNRs from your family doctor or any treating physician. No compelling evidence has been provided to support that any pre-existing condition would prevent treatment in the MIG and that the MIG applies.”
20The applicant submits that the respondent’s denial of the psychological assessment was a conclusion as opposed to a medical reason. I disagree. I find the EOB complied with s. 38(8) of the Schedule as it was sent within 10 days of the submission of the OCF-18 and advised the applicant that it had not received any medical documents from his family doctor or treating practitioner and it believed the MIG applies. Nor had it been provided with compelling evidence of any pre-existing condition which would preclude full recovery within the MIG. Based on the evidence before me I find the reasons for the denial of the OCF-18 to be in accordance with the Schedule.
21The applicant submits that the respondent’s denial of the other two OCF-18s for physiotherapy also did not comply with s. 38(8) but did not articulate how they were deficient. Nor did he submit the denials of the OCF-18s for my consideration. In the absence of submissions or any evidence to support this allegation, I am unable to make a finding that the respondent’s denials of these OCF-18s were deficient.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.
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. The applicant submits that the respondent unreasonably withheld the benefits in dispute and highlighted the factors an adjudicator should consider in granting an award. However, I find that the applicant’s submissions do not address any of the respondent’s conduct in this case which would warrant an award. Considering my decision in this matter, I find that an award is not payable as I have not determined that the respondent unreasonably withheld or delayed the payment any benefits.
ORDER
24For the above-noted reasons, the applicant’s injuries are minor and subject to treatment within the $3,500 MIG limit. He is not entitled to the benefits in dispute, interest or an award.
Released: October 6, 2025
Rebecca Hines
Adjudicator