Citation: Zhang v. Aviva General Insurance, 2025 ONLAT 24-000079/AABS

Licence Appeal Tribunal File Number: 24-000079/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:

Heng Zhang

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Emily Siu, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Heng Zhang, the applicant, was involved in an automobile accident on September 23, 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, Aviva General Insurance, 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 limit?

ii. Is the applicant entitled to $6,063.90 for Chiropractic treatment, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 ("plan") dated April 3, 2023?

iii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated January 22, 2023?

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

3The applicant's injuries are predominately minor as defined by s.3 of the Schedule and therefore the applicant is subject to treatment within the MIG.

4The applicant is not entitled to the treatment plans in dispute.

5There is no interest or award granted.

ANALYSIS

Minor Injury Guideline (MIG)

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 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. In this case the applicant seeks removal from the MIG on the basis of a chronic pain impairment and a psychological condition.

The applicant does not suffer a chronic pain impairment

8I find the applicant does not suffer a chronic pain impairment with functional impairment that would remove him from the MIG.

9The applicant relies on the Clinical Notes and Records (CNR's) from the family doctor, Dr. E. Jang, with complaints of pain in his neck, shoulder and lower back area. This is referenced in the CNR's of Dr. Jang dated June 20, 2023. Also, the applicant relies on CNR's of the Brimley Family Clinic dated April 24, 2024, and on the plan prepared by Dr. G. Palantzas, chiropractor, where the plan was for an assessment of the body, acupuncture of multiple areas and exercises.

10The applicant also relies on the CNR's of Dr. Jang, dated April 23, 2023, where Dr. Jang recorded the applicant had no radiating or numbness in his right-side neck and shoulder area. The applicant had full range of motion and no headaches. He had a mild low back pain, however, the applicant reported gradual overall improvement in this area. In other CNR's of Dr. Jang, dated July 30, 2023, and October 22, 2023, there were non-accidental related injuries reported in his back and right ankle.

11The respondent relies on their s. 44 assessor, Dr. P. Bansal, and his report dated June 4, 2024, where the applicant stated to Dr. Bansal that he had an additional accident in November 2023 and reported injuries similar to the subject accident. The applicant reported soft tissue injuries to his neck, shoulder and lower back following the subject accident and attended physical therapy for 6 months. He advised Dr. Bansal that the November 2023 accident exacerbated his soft tissue injuries. He reported being independent with all self-care in daily activities including driving.

12The applicant submits that the CNR's of Dr. Jang dated June 20, 2023 establish his chronic pain. Dr. Jang states that the applicant had been attending physical therapy sessions to help with his pain. The applicant attended on or about April 3, 2023, at Total Recovery Rehab Centre and saw Dr. G. Palantzas, where he began physical therapy and prepared the treatment plan that is in dispute.

13I find in the CNR's of Dr. Jang that there is no diagnosis of chronic pain. I further note that it was seven months after the accident that the applicant first documented any accident-related complaints. In the April 23, 2023 CNR, Dr. Jang wrote that the applicant had full range of motion with no headaches and his lower back has improved with time. The applicant reported no neck or shoulder problems. Dr. Jang assessed him with mild whiplash and prescribed Mobicox. No diagnostic imaging or referrals were ordered at that time, and the applicant does not direct me to any referrals by Dr. Jang for chronic pain investigation or treatment. In addition to a lack of a chronic pain diagnosis, the applicant does not direct me to persistent ongoing pain reports or reports of functional limitations due to pain. While I support the applicant's goals for a complete recovery, I find there is no contemporaneous medical evidence before me that would warrant a removal from the MIG based on a chronic pain caused by the accident.

The applicant does not suffer from a psychological condition that would remove him from the MIG

14I find the applicant does not suffer from a psychological condition that would warrant removal from the MIG.

15The applicant relies a treatment plan dated January 22, 2023 prepared by Dr. M. Pojhan of Somatic Assessments and Treatment Clinic. Dr. Pojhan prepared a pre-screening report that was supervised by him but administered by Yuling Zhou, psychotherapist. This report indicated that the applicant was having anxiety as well as reduced concentration. Dr. Pojhan proposed a treatment plan for psychological assessment to determine a proper diagnosis.

16The respondent cites the Tribunal decision Abravani v. Aviva General Insurance Company, 2023 CanLII 113719 (ON LAT) at paragraph 21, where the applicant must demonstrate, in good faith, that he has grounds to believe he suffers a psychological impairment as a result of the accident, which warrants the proposed psychological assessment.

17The respondent further relies on their s. 44 assessor, Dr. G. Lau, psychologist and his report dated, April 17, 2024, where he diagnosed the applicant with adjustment disorder with mixed anxiety depressed mood as result of the November 2023 accident. The respondent approved funding for 12 sessions of psychological counseling administered by Somatic Assessments and Treatment Clinic.

18The applicant does not direct me to any evidence that a medical expert or current treating medical practitioner has reported that the subject accident caused the applicant's ongoing complaints of psychological issues. I find that there is no connection between the accident and the applicant's present injuries because it is too remote. Rather, the evidence establishes that the more recent accident of November 2023, where the applicant suffered similar injuries, was the cause of his injuries. I find on a balance of probabilities that the applicant has not met his onus to prove that he suffered a psychological impairment that warrants removal from the MIG.

19As the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.

Has the respondent breached s. 38(8) of the Schedule?

20I find that the applicant has not established that the respondent was non-compliant with s. 38(8). In terms of the sufficiency of the respondent's denials, the applicant states that the insurer failed to provide the applicant with firm and clear "medical and all of the other reasons" why they refused to pay for the benefit and the proposed treatments/assessments, as required by s. 38(8) of the Schedule.

21The respondent asserts that all denials are complaint with the Schedule. The respondent argues that it is sufficient for the denial to say that the applicant's injuries fall within the MIG, particularly because it had little medical documentation to refer to or base its reasons on. The respondent points out the applicant submitted the disputed OCF-18s without corroborating evidence to support his claim. As a result of the limited amount of medical documentation provided by the applicant, the respondent submits that its medical reasons were sufficient. I agree.

22The respondent cites Zeitoun v Royal & Sun Alliance, 2020 CanLII 103701 (ON LAT), where at paragraph 35, Vice Chair McGee states:

I do not agree...that citing the MIG in a denial fails to provide "medical reasons and all of the other reasons" for the determination as required by s. 38(8). For each of the treatment plans in dispute, the respondent explained that it had determined that M.Z. had "sustained a minor injury to which the Minor Injury Guideline applies." I find that this reason satisfies the requirement, well-established in the jurisprudence, that an insurer provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant's file, to which an insured person can respond.

23I further note that the applicant has not provided any detailed submissions that the respondent has not complied with s. 38(8). Rather, he simply provides a general statement that medical reasons were not provided. In the denial for the psychological assessment dated January 31, 2023, the respondent states, "We do not have compelling evidence to suggest your injuries would take you out of the Minor Injury Guidelines and warrant additional treatment."

24Similarly, in the denial letter of April 17, 2023, the respondent clearly states that the applicant does not have compelling medical evidence to suggest the applicant's injuries would take him out of the MIG.

25I find that these statements give medical and other reasons for the denial as the insurer is assessing the applicant's injuries pursuant to the MIG based on the limited information currently on file from the applicant. I agree with the reasoning in Zeitoun v Royal & Sun Alliance that the denial letters make it clear that the applicant's injuries are within the MIG, and that the insurer lacks sufficient medical evidence to support additional treatment.

26I find the notices are compliant to s. 38(8) of the Schedule, and therefore s. 38(11) does not apply.

Interest

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No interest is awarded as no benefits are due.

Award

28The 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 no award is payable because there is no evidence that the respondent unreasonably withheld or delayed any benefits payable.

ORDER

29On the totality of the evidence, I find that:

i. The applicant's injuries are predominately minor as defined by s.3 of the Schedule and therefore the applicant is subject to treatment within the MIG.

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

iii. There is no interest or award granted.

iv. The application is dismissed.