Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-013680/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:
Li Wu
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Estella Muyinda
APPEARANCES:
For the Applicant: Sareena Samra, Counsel
For the Respondent: Emily Schatzker, Counsel
HEARD: By way of written submissions
OVERVIEW
1Li Wu, the applicant, was involved in an automobile accident on June 26, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The 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
3The 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 $3500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $4,217.20 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated November 8, 2022?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic & Treatment Clinic in a plan dated August 17, 2022?
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
4The applicant has not met her burden in establishing that her accident-related injuries warrant removal from the MIG.
5As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
6The applicant is not entitled to interest or an award.
7This application is dismissed.
ANALYSIS
8I find that the applicant has not proven on a balance of probabilities that she should be removed from the MIG.
9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”
10An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG, or, under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
11In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.
12The applicant argues she should be removed from the MIG based on a psychological impairment and chronic pain.
Psychological Injuries
13I find that the applicant has not met her burden in establishing that she has a psychological impairment that warrants removal from the MIG.
14The applicant relies on a pre-screening psychological consultation conducted by Ms. Sherry Jiang, qualifying psychotherapist, supervised by Dr. Sharleen McDowall, psychologist, dated July 4, 2022. The applicant submits that she self-reported that she was emotionally distressed and struggled with anxiety, irritability, frustration, depression, and fatigue. Dr. McDowell opined that the applicant had exhibited avoidance behaviours, only travelling when it was necessary. Further, Dr. McDowell recommended that the applicant undergo a full psychological assessment battery including psychometric testing, an in-depth clinical interview to determine her clinical diagnosis and psychological treatment needs.
15The respondent disagrees, stating that the applicant did not sustain a psychological impairment as a result of the accident. The respondent asserts that the applicant did not report any of the injuries to Dr. Yao, family physician, after the accident.
16I am not persuaded by the applicant’s submissions or limited evidence to support her claim of a psychological impairment as a result of the accident. Therefore, I put no weight on Dr. McDowell’s opinion because it is contained in a pre-screening report and there is no objective corroborating or contemporaneous reporting to the applicant’s family physician in the evidence before me to support that the applicant had psychological symptoms post-accident. Additionally, there is no evidence of prescribed medication or referral for any psychological treatment for a psychological condition resulting from the accident.
17Accordingly, on a balance of probabilities, I find that the applicant has not demonstrated that she suffers from a psychological injury as a result of the accident that warrants removal from the MIG.
Chronic Pain
18I find that the applicant has not demonstrated that she suffers from a chronic pain condition that warrants removal from the MIG.
19The applicant submitted the clinical notes and records of Dr. David Swartz, emergency medicine physician, dated July 3, 2022, that show that the applicant attended at the hospital one week after the accident. Dr. Swartz’s clinical notes and records indicate that the applicant was experiencing lateral neck pain of the left side, and lower back pain. Dr. Swartz recommended analgesics and heat packs with respect to musculoskeletal treatment. Further, Dr. Swartz referred the applicant to Dr. Buie at York Medical for motor vehicle accident rehabilitation. I note that the applicant did not submit any evidence related to the referral to Dr. Buie and therefore I do not know if she attended, or what Dr. Buie’s findings are, if any.
20The applicant submits that in a treatment plan dated November 8, 2022, Mr. Richard Tavares, chiropractor, noted that the applicant had difficulty performing housekeeping and care giving responsibilities as the applicant was suffering from cervical, thoracic, lumbar, and shoulder impairment, and the presence of radicular, neurological, and psychological symptomology that decreased her functional capacity. The impact on the applicant’s impairments was on standing, walking, sitting, lifting, pushing/pulling, bending, and overhead reaching.
21The respondent submits that the applicant relies on a treatment plan that is not corroborated by any medical evidence. Additionally, the respondent asserts that the applicant has not sustained a chronic pain condition as a result of the accident because she has not produced any evidence to substantiate removal from the MIG on this ground.
22Upon review of the evidence submitted by the applicant, I find that the evidence before me does not establish that the applicant has chronic pain because, while the applicant initially reported pain to the emergency room physician, there is no medical evidence supporting a finding of chronic pain. The report of Dr. Buie is not in evidence, and while Mr. Tavares notes functional impairments, the evidence does not establish that these are the result of accident-related chronic pain and treatment plans are not medical evidence. Further, the applicant has not provided evidence of a diagnosis of chronic pain nor engaged with the American Medical Association’s Guides criteria on chronic pain in the absence of a diagnosis. Therefore, I conclude that the applicant has not sustained a chronic pain condition.
23Accordingly, I find that the applicant has not proven on a balance of probabilities that her injuries are a result of the accident. Thus, she remains in the MIG.
24As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary because the MIG funding limit has been exhausted.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits have been found to be owing, interest is not applicable.
Award
26The 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. I find that the respondent is not liable to pay an award.
27The applicant submits that the respondent unreasonably withheld funding for the treatment plans by deliberately ignoring medical evidence found in the clinical notes and records from Dr. Gordon Yao and hospital notes and records from Mackenzie Health Hospital. The applicant asserts that the delay in providing her with a psychological assessment and treatment irreparably delayed her recovery and therefore she is entitled to an award.
28The respondent submits that the applicant is not entitled to a special award because no benefits were unreasonably withheld or delayed. The respondent asserts that the applicant did not respond to requests for medical documentation that could support the need for further treatment.
29I find that the applicant is not entitled to an award as the respondent has not unreasonably withheld or delayed payment.
ORDER
30The applicant has not met her burden in establishing that her accident-related injuries warrant removal from the MIG.
31As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
32The applicant is not entitled to interest or an award.
33This application is dismissed.
Released: October 22, 2025
__________________________
Estella Muyinda
Adjudicator