Licence Appeal Tribunal File Number: 24-000177/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:
Phuc-Hung Hoang
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Katherine Badenoch, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Phuc-Hung Hoang, the applicant, was involved in an automobile accident on August 25, 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, Certas Home and Auto Insurance Company, 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 dated October 2, 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
3I find that:
i. The applicant has not established accident-related impairments that warrant removal from the MIG;
ii. The applicant is not entitled to the treatment plan in dispute, or interest; and
iii. The respondent is not liable to pay an award.
ANALYSIS
Minor Injury Guideline
4Section 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."
5An 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 injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines 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.
6The applicant submits that he should be removed from the MIG due to his accident-related psychological impairments and chronic pain.
The applicant has not established an accident-related psychological impairment
7To establish his claim, the applicant relies on a pre-screening report dated September 18, 2023. The interview was conducted by Mr. Yuling Zhou, Registered Psychotherapist, and supervised by Dr. Mehrdad Pojhan, Psychologist. In the pre-screening report, the applicant described feelings of hopelessness, fatigue, increased irritability, decline in memory and concentration and symptoms of anxiety and depression. Dr. Pojhan recommended a thorough psychological assessment, along with a short course of psychotherapy.
8The respondent submits that the applicant has not led any corroborating medical evidence in support of a psychological impairment. It argues that the applicant had not reported any psychological symptoms to his family doctor, Dr. Lieu, in the years post-accident, but rather, solely relies on the pre-screening which had been appended to the OCF-18. The respondent cites Tribunal decision YFTL v The Co-operators General Insurance Company, 2020 CanLII 27398 (ONLAT) to argue that OCF-18 forms are not sufficient evidence to establish an impairment, but rather, corroborating medical evidence must be provided.
9I find that the applicant has not met his onus to prove that he has sustained a psychological impairment as a result of the accident. The only evidence provided by the applicant on the issue of psychological impairments is the pre-screening report. However, the report did not involve a comprehensive psychological assessment of the applicant, but rather, recommended that one be obtained. The pre-screening also did not involve any psychological testing, but relied exclusively on the applicant's self-reports. Further, the psychological symptoms recorded in the report are not reflected in the objective medical record.
10The applicant attended at his family physician's office a number of times in the year post-accident. While he reported physical symptoms, the applicant does not direct me to any clinical notes and records ("CNR") entry where psychological symptoms were discussed. Dr. Lieu did not diagnose the applicant with any psychological impairment, or refer him to any psychological counselling. No other medical evidence has been provided in support of a psychological impairment.
11Accordingly, I find that the applicant has not met his evidentiary burden to establish an accident-related psychological impairment warranting removal from the MIG.
The applicant has not established accident-related chronic pain
12The applicant submits that the CNRs of his family doctor establish that he suffers from chronic pain as a result of the accident. The applicant argues that records reveal that he continued to complain of pain in his neck, back and shoulder for one year after the accident, and that Dr. Lieu had prescribed pain medication. The applicant submits that given that he has not recovered in the typical healing time for these types of injuries, he has sustained chronic pain as a result of the accident and should be removed from the MIG.
13I find that the applicant has not met his evidentiary onus to establish chronic pain as a result of the accident.
14The applicant does not direct me to any diagnosis of chronic pain syndrome or reference to chronic pain in Dr. Lieu's CNRs. Nor has the applicant provided evidence of any other opinion from a treating physician where he was diagnosed with chronic pain. While I agree with the applicant that he reported accident- related pain in the year post accident and was prescribed pain medication, this alone does not establish chronic pain warranting removal from the MIG.
15In the months after the accident, while Dr. Lieu noted the applicant's pain complaints, in a November 3, 2022 CNR entry Dr. Lieu also noted that the applicant was "well appearing" and was "improving". On January 26, 2023 Dr. Lieu noted that the applicant was slowly improving, and in the final entry on August 22, 2023, the applicant was diagnosed only with "cervical strain" and was provided with neck exercises. At that time, the prescription pain medication Naproxen was discontinued until the applicant's nausea resolved. The applicant does not direct me to any CNR entry after August 2023, where accident-related pain was reported. The applicant further was not referred to a pain specialist and diagnostic imaging was not ordered.
16Moreover, the applicant has not established that he meets the criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (the "AMA Guides").
17While it is not part of the Schedule, the Tribunal has generally accepted the AMA Guides can be a useful tool when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; development of psycho-social sequalae after the initial incident; excessive dependence on healthcare providers, spouse, or family; secondary physical deconditioning due to disuse; and a failure to restore pre-injury function after a period of disability.
18In terms of the AMA Guides criteria, the applicant has not established an overuse or dependence on prescription pain medication. Rather, given that Dr. Lieu prescribed pain medication for only a period and then it was stopped, there is no evidence of abuse or dependency on such medication. The applicant further has not directed me to evidence of excessive dependence on healthcare providers or family, secondary physical deconditioning due to disuse or failure to restore pre-injury function, and I do not see anything in the medical records to support these criteria. As such, the applicant has not met three of the six criteria for establishing chronic pain.
19Accordingly, while the applicant did report pain complaints following the accident, I find that he has not demonstrated that he suffers from a chronic pain condition as a result of the accident.
20The parties agree that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that he should be removed from the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan.
21The applicant makes the additional submission that the treatment plan should be payable pursuant to s. 38(11) of the Schedule, arguing that the respondent did not provide medical reasons for the denial of the assessment, as required by s. 38(8).
22The applicant submits that in the denial letter dated October 5, 2023, the respondent used only boilerplate language, did not refer to the applicant's injuries, or the documentation they had relied on in coming to their conclusion. The respondent argues that since the applicant had not provided any medical evidence in support of his claim at the time of the denial, it was entitled to state its belief that the MIG applied.
23I find that the October 5, 2023 denial letter was compliant with s. 38(8) of the Schedule. The letter states that when comparing the applicant's injuries to the criteria in the Minor Injury Guideline, the respondent has concluded that the applicant's injuries are minor and fall within the Guideline. The respondent further requested that the applicant submit his family doctor's records.
24In my view, this reason complies with the principles set out in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) and Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318, where it was stated that a medical reason should, at the very least, include specific details about the insured's condition forming the basis for the insurer's decision or, alternatively, identify information about the insured's condition that the insurer does not have but requires. In the October 5, 2023 letter, the respondent specifically requested the applicant's family doctors CNRs. Given the lack of medical documentation the respondent had at that time, in my view, the stated reasons provided a principled rationale based fairly on the applicant's file.
25As such, the applicant has not established that the respondent was non-compliant with s. 38(8) of the Schedule.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
27The 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. As no payment of benefits were unreasonably withheld or delayed, the applicant has not established grounds for an award.
ORDER
28I find that:
i. The applicant has not established accident-related impairments that warrant removal from the MIG;
ii. The applicant is not entitled to the treatment plan in dispute, or interest; and
iii. The respondent is not liable to pay an award.
Released: October 27, 2025
Ulana Pahuta
Adjudicator```