Citation: Lin v. Certas Home and Auto Insurance Company, 2025 ONLAT 24-001895/AABS

Licence Appeal Tribunal File Number: 24-001895/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:

Fa Ming Lin

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Aylina Dhanji, Counsel

For the Respondent:

Heena Kapoor, Counsel

HEARD:

In Writing

OVERVIEW

1Fa Ming Lin, the applicant, was involved in an automobile accident on December 15, 2019, 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 limit (MIG)?

ii. Is the applicant entitled to $13,306.63 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (treatment plan) submitted on February 5, 2022?

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 met the onus to warrant removal from the MIG.

4The application is dismissed. As the applicant is in the MIG, it not necessary to consider if the treatment plan is reasonable and necessary. The applicant is not entitled to interest or an award.

ANALYSIS

Has the applicant established he should be removed from the Minor Injury Guideline due to Chronic Pain?

5The applicant has not met the onus to prove he should be removed from the 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

8The applicant submits they should be removed from the MIG due to chronic pain. To support their position, they have submitted the Clinical Notes and Records from their family physician, Dr. Raymond Tsang, as well as an OCF-18 from chiropractor Dr. Georgina Palantzas.

9The respondent argues that the applicant has previously sought be to be removed from the MIG. In Lin v Certas Home and Auto Insurance, 2023 CanLII 15071 (ON LAT), the Tribunal ruled that the applicant failed to meet his burden of proving that he should be removed from the MIG. While the respondent agrees that the applicant is submitting new evidence in support of this application, the respondent disagrees that the evidence is sufficient to warrant removal from the MIG.

10The respondent argues that the evidence is largely duplicative of the earlier application, and that simply diagnosing ‘chronic pain’ by a treatment provider is insufficient to meet the onus. The respondent says the lack of objective testing or guidelines, such as the AMA Chronic Pain Guideline, indicate the applicant does not meet the test to prove he is suffering from chronic pain.

11The respondent cites 16-000501 v Dumfries Mutual Insurance Company, 2017 CanLII 15834 (ON LAT) where the adjudicator ruled “[a] health practitioner noting that self-reported pain may be chronic without conducting further medical tests does not satisfy the onus to establish that the injuries fall outside of the MIG.”

12I agree with the respondent. Although not bound by Tribunal decisions, I agree with the reasoning in 16-000501. Having reviewed the evidence, including the CNRs from Dr. Tsang, I note a sole reference to ‘neck strain? Post MVA’ dated May 12, 2022.

13I have also reviewed the OCF-18 from Dr. Palantzas, where there is a reference to the applicant’s injuries being chronic. In my opinion, simply labeling an injury as chronic in an OCF-18 is unpersuasive without further supportive medical evidence. I was not led to any other supportive medical evidence to support his claim.

14In summary, I do not find the applicant’s submissions and evidence to be persuasive. I was not led to any objective guidelines or testing data which indicate the applicant’s condition rises to the level of chronic pain. Further, I have not been led to evidence that the applicant has a functional impairment.

15For these reasons, I find the applicant has not met the onus, on a balance of probabilities, to warrant removal from the MIG.

Should the applicant be removed from the MIG due to a psychological injury?

16The applicant has not met the onus to be removed from the MIG based on a psychological injury.

17The applicant relies upon a psychological report, authored by psychologist Dr. Mehrdad Pojhan and dated April 29, 2021.

18The respondent submits that the evidence is again, largely duplicative of the earlier application. In the decision from that earlier application, the Tribunal wrote that the applicant “has not directed me to any persuasive medical documentation to support that he suffered a psychological impairment as a result of the accident.”

19Having independently reviewed the psychological evidence put before me, I agree that the applicant’s psychological evidence does not warrant removal from the MIG. I note a lack of psychological complaints to Dr. Tsang, with the applicant having complained of “low mood” once in a two-year period, and that any medication prescribed by Dr. Tsang for low mood and insomnia was at the request of the patient requesting sleep medication.

20Furthermore, Dr. Pojhan did not review any medical records in coming to his conclusion that the applicant suffered from adjustment disorder. There is no objective medical evidence which supports a psychological diagnosis.

21For these reasons, I find on the balance of probabilities that the applicant has not met the onus to warrant removal from the MIG based on psychological injury.

22As the applicant is being held to the MIG, it is not necessary to do a reasonable and necessary analysis for the treatment plan in dispute.

Interest

23Interest 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

24The 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 benefits were unreasonably withheld or delayed, no award is payable.

ORDER

25The application is dismissed.

i. The applicant has not met the onus to warrant removal from the Minor Injury Guideline.

ii. As the applicant is in the MIG, it is not necessary to consider if the chiropractic treatment plan is reasonable and necessary.

iii. Neither interest nor an award are payable.