Licence Appeal Tribunal File Number: 24-000831/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:
Yong Fa Li
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Jodie Therrien, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Yong Fa Li, the applicant, was involved in an automobile accident on August 12, 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, Allstate Canada, 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 chiropractic services proposed by Easy Health Centre as follows:
i. $486.00 in a treatment plan/OCF-18 (“plan”) dated December 3, 2022?
ii. $1,228.58 in a plan dated January 21, 2023?
iii. $1,125.00 in a plan dated May 30, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. Therefore, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.
4The respondent is not liable to pay an award.
5The applicant is not entitled to interest.
ANALYSIS
Applicability of Minor Injury Guideline
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) 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.”
7An 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 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.
8The applicant submits that he should be removed from the MIG because he suffers from chronic pain as a result of the accident. He further alludes to the fact that he suffers from a psychological impairment because of the accident.
9The parties agree that $79.18 remains within the MIG limit.
The applicant has not established that he suffers from chronic pain because of the accident
10The applicant has not met his onus of demonstrating on a balance of probabilities that he suffers from chronic pain with functional impairment as a result of the accident.
11The applicant argues that the denial of benefits on a MIG basis has resulted in hardship and slowed his overall recovery. He submits that, although he suffered mainly soft tissue injuries from the accident, he did not recover in the usual healing time seen with these types of injuries. He says that he has not reached his pre-accident state and suffers from chronic pain.
12The applicant further submits that on multiple occasions following the accident, he consulted with his family physician, Dr. Andrew Wan, with complaints of neck and lower back pain, accompanied with difficulty sleeping and anxiety issues.
13The applicant also refers to plans dated December 3, 2022, and April 15, 2023, prepared by Dr. Hyo Kim, chiropractor, who provides the applicant with chiropractic treatment, as well as an OCF-21 dated March 18, 2023. These documents list the following accident-related injuries: sprain and strain of the thoracic spine, lumbar spine, shoulder joint, and hip, injury of muscle and tendon at forearm level, cervicalgia, low back pain, myalgia, tension-type headache, post-traumatic stress disorder, and dizziness and giddiness.
14The applicant further argues that since the respondent has not conducted a single independent assessment, the Tribunal should place heavy weight on his treating practitioners’ reports.
15The applicant refers to the decision of C.G. v. The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT) (“C.G.”), where the Tribunal held that chronic pain is a condition that persists for three to six months, and a formal diagnosis of chronic pain is not required to remove an applicant from the MIG. I am not bound by other decisions of the Tribunal. While I agree that a formal diagnosis is not required to establish chronic pain, I do not accept that pain which persists three to six months is sufficient to establish chronic pain. As I have noted above, the Tribunal has determined chronic pain may warrant removal from the MIG, if it causes functional impairment. In my view, the applicant must also demonstrate on a balance of probabilities that they have functional impairment as a result of the chronic pain
16The respondent points out that the plans that were submitted into evidence by the applicant are not clinical notes and records (“CNRs”), nor are they proper assessments or examinations. Further, they are without reference to any medical records or the conduction of diagnostic testing. The respondent submits that the plans are in direct contrast to Dr. Wan’s CNRs, because they detail multiple diagnoses which were never diagnosed by Dr. Wan, who is a medical doctor.
17The respondent also submits that it is not required to schedule s. 44 assessments where the medical evidence does not support a claim, as is the case here.
18I find that the applicant does not direct me to evidence of any functional impairment because of the accident. Further, I have reviewed Dr. Wan’s CNRs. I note that the applicant reported neck and back pain due to the accident on August 29 and September 2, 2022. The applicant attended to see Dr. Wan on the following dates, with no mention of the accident or any accident-related complaints: October 14, 2022, January 27, 2023, February 17, 2023, March 3, 2023, May 5, 2023, August 18 and 25, 2023, September 15, 2023, December 1 and 8, 2023, January 5, 2024, March 22, 2024, and April 5, 2024. On March 1, 2024, the applicant reporting feeling stress and anxiety while driving, due to the accident.
19I find that the applicant did not report any pain complaints because of the accident beyond September 2, 2022, which is less than one month after the accident. Accordingly, based on the evidence before me, the applicant’s pain cannot be considered chronic.
20For these reasons, I find that the applicant has not met his onus of establishing on a balance of probabilities that he suffers from chronic pain with functional impairment as a result of the accident that would remove him from the MIG.
The applicant does not suffer a psychological impairment because of the accident that would take him out of the MIG
21The applicant has not met his onus of demonstrating on a balance or probabilities that he suffers from a psychological impairment because of the accident.
22Although the applicant does not make submissions in this regard, he does refer to the decision of M.S.W. v Aviva General Insurance, 2020 CanLII 43656 (ON LAT), where the Tribunal held that psychological impairment should not be considered as a MIG injury. I agree and I find that this law is well settled.
23The applicant also refers to “multiple occasions” following the accident, when he consulted with Dr. Wan, with complaints of difficulty sleeping and anxiety. However, the applicant has only directed me to one occasion, i.e., March 1, 2024, almost one year and seven months after the accident, when he reported anxiety because of the accident.
24I place no weight on the notation of post-traumatic stress disorder in the plan prepared by Dr. Kim, because I find that the diagnosis of psychological impairments is beyond the scope of a chiropractor.
25The applicant does not direct me to evidence of a psychological impairment caused by the accident, other than one complaint of driving related anxiety on March 1, 2024 to Dr. Wan. I am not persuaded by this one complaint that the applicant suffers from a psychological impairment. Further, the applicant does not direct me to evidence that Dr. Wan made a psychological diagnosis or a referral for psychological counselling.
26Based on the evidence, I am not satisfied on a balance of probabilities, that the applicant has established that he suffers from a psychological impairment because of the accident that would take him out of the MIG.
27For the reasons set out above, I find that the applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.
The applicant is not removed from the MIG based on his s. 38(8) argument
28The applicant is not removed from the MIG based on his s. 38(8) argument.
29The applicant relies on s. 38(8) of the Schedule in arguing that the respondent is prohibited from taking the position that he has an impairment to which the MIG applies.
30The applicant argues that, by denying his benefits without conducting any independent assessments, the respondent did not provide the applicant with firm and clear “medical and all the other reasons” why it refused to pay for the benefits, treatments, and assessments, as required by s. 38(8) of the Schedule. The applicant submits that in these circumstances the mandatory payment provisions under s. 38(11)(2) are triggered, and the respondent is prohibited from taking the position that the applicant has an impairment to which the MIG applies.
31Section 38(8) provides that the insurer must reply to a plan within 10 business days after receipt of the treatment plan, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies, if the plan was incurred during the period of non-compliance.
32The applicant does not make submissions that the respondent’s denial letters do not comply with s. 38(8). Rather, he argues that s. 38(8) applies because the respondent denied his benefits without conducting any s. 44 assessments. The respondent’s duty to provide “the medical reasons and all of the other reasons” for a denial as set out in s. 38(8) does not require it to obtain any s. 44 assessments.
33Further, as pointed out by the respondent, and as held by the Divisional Court in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 at para. 21, the consequences of s. 38(11) only apply to treatment plans which were not properly denied, and an improper denial does not result in an applicant being removed from the MIG generally.
34For these reasons, I find that the applicant is not removed from the MIG based on his s. 38(8) argument.
35As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.
Interest
36Interest 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
37The 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 or delayed, the applicant is not entitled to an award.
ORDER
38For the above reasons, I find:
i. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. Therefore, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.
ii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
iii. The respondent is not liable to pay an award.
Released: October 20, 2025
Laura Goulet
Adjudicator