Licence Appeal Tribunal File Number: 23-015208/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:
Henry Zhang
Applicant
and
The Personal Insurance Company
Respondent
DECISION
VICE-CHAIR:
Geneviève Painchaud
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Sara Azghadi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Henry Zhang, the applicant, was involved in an automobile accident on August 18, 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, The Personal Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the time of the accident, the applicant, a 21-year-old student, was a pedestrian crossing a road when he and his mother were struck by a vehicle. He went to the hospital by ambulance with his mother, but he was not treated and was only accompanying her.
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 $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $2,200.00 for psychological services proposed by Somatic Assessments and Treatment Clinic in an OCF-18/treatment plan (“plan”) submitted September 24, 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
4I find that:
i. The applicant remains within the MIG;
ii. As the applicant is subject to the MIG, it is not necessary to consider whether the treatment plan is reasonable and necessary;
iii. As there are no overdue benefits, the applicant is not entitled to interest; and
iv. The respondent is not entitled to an award.
ANALYSIS
The applicant remains in the MIG
5I find the applicant remains subject to 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 that he should be removed from the MIG based on a psychological impairment and chronic pain.
The applicant has not proven he suffers from a psychological impairment as a result of the accident
9I find the applicant has not proven that he suffers from a psychological impairment as a result of the accident.
10The applicant submits that he has sustained a severe psychological impairment as a result of the accident and has difficulty sleeping, fatigue, pedestrian anxiety, poor appetite, flashbacks and reduced social interactions.
11The applicant relies on:
i. A psychological pre-screening by Wai Tin Wong, social worker on September 10, 2022, followed by a report signed by his supervisor, Dr. Sedigheh Naisi, clinical psychologist, dated September 19, 2022.
ii. An OCF-23 dated September 2, 2022, completed by Jing Heng Guan, chiropractor, that lists the applicant’s injuries as whiplash, sprains, non-organic sleep disorder and general anxiety disorder.
iii. An OCF-18 of Ahmed Afifi, physiotherapist, dated January 28, 2023 recommending physiotherapy and active therapy for 6 weeks for pain reduction, and describing the applicant having sleep issues, decreased driving tolerance, difficulty attending classes and doing school work.
12The applicant relies on Zhao v. The Personal Insurance Company, 2023 CanLII 56122 (ONLAT) at para. 19 where the Tribunal concluded that psychological injuries could remove someone from the MIG. I concur that it is a criterion that, if proven, can remove someone from the limits of the MIG.
13The respondent submits that the applicant’s injuries are predominantly minor and that the evidence does not support a psychological impairment.
14The respondent relies on:
i. The clinical notes and records of the applicant’s family doctor, Dr. Lawrence Kwan.
ii. The applicant’s OHIP summary.
iii. The OCF-1 dated October 1, 2022.
15I agree with the respondent that the pre-screening report signed by Dr. Naisi does not concur with the clinical notes of the applicant’s family doctor, Dr. Kwan. Dr. Naisi’s report does not describe how the pre-screen was conducted and appears to solely rely on the applicant’s answers to questions. It states that the applicant has been experiencing sleep issues, fatigue, pedestrian anxiety, reduced social interaction, increased worry and stress, poor appetite and flashbacks and provides a provisional diagnosis of mixed anxiety and depressive disorder.
16On the other hand, Dr. Kwan’s clinical notes and records note at an appointment four days following the accident, that the applicant was struck by a car and fell on his hand and had left shoulder pain but was already feeling better. The applicant did not report any psychological symptoms to Dr. Kwan. The applicant did not go back to see his family doctor and had no OHIP-documented attendances until May 2024, where Dr. Kwan’s notes indicate the applicant’s mood as normal with no depression and no fatigue.
17I find that the evidence presented does not support a psychological impairment as a result of the accident as I accord more weight to the family doctor’s notes and records which are absent of any mention of psychological symptoms or diagnoses compared to the pre-screen assessment which is only provisional and based on self-reports.
18The applicant has also not directed me to any other significant medical evidence to corroborate the self-reports of sleep issues, fatigue, pedestrian anxiety, reduced social interaction, increased worry and stress, poor appetite and flashbacks. Furthermore, I accord little weight to Jing Heng Guan opining on psychological impairments as a chiropractor, nor Mr. Afifi as a physiotherapist, as psychological diagnoses are not within their realm of expertise.
19As a result, I find that the applicant has not proven, on a balance of probabilities, that he suffers from a psychological impairment as a result of the accident that warrants removal from the MIG.
The applicant has not proven he suffers from chronic pain as a result of the accident
20I find the applicant has not proven that he suffers from chronic pain as a result of the accident.
21The applicant submits that he should be removed from the MIG as he suffers from chronic pain.
22In support for its position, the applicant relies on the documents previously mentioned.
23The applicant points to C.G. vs. The Guarantee Company of North America, 2020 CanLII 63599 (ONLAT) at para. 37 where the Tribunal found that chronic pain is a condition that persists for three to six months and that a formal diagnosis of chronic pain is not required to remove an applicant from the MIG.
24The respondent submits that the applicant has failed to present any medical evidence to suggest that he complained of chronic pain-type symptoms or that he was diagnosed with chronic pain. He only received 12 chiropractic and 7 physiotherapy treatments between September 2022 and May 2023 despite having extended health coverage, and no there were no OHIP documented attendances between August 2022 to May 2024.
25The respondent points to 17-006581 v. Unifund Assurance Company, 2018 CanLII 110951 (ONLAT) which holds that chronic pain is pain that is continuous or of such severity that it causes distress accompanied by a functional impairment or disability.
26I do not accept the applicant’s position that the evidence proves that Dr. Kwan, Dr. Afifi, Dr. Guan and Dr. Naisi all agree that the applicant continues to suffer physically from the accident and that they all document ongoing physical pain.
27From my review, the clinical notes and records of Dr. Kwan do not mention any physical pain from the accident after the initial four days following the accident. Dr. Naisi’s report is also a snapshot in time and is a self-report related to a pre-screen psychological report. Finally, I am not convinced that Mr. Afifi and Dr. Kwan opined that there has been ongoing physical pain that meets the threshold for chronic pain, but rather in OCF forms, they recommended pain reduction treatments over a few weeks.
28I agree with the applicant and the jurisprudence that a formal diagnosis of chronic pain is not required to establish chronic pain, but I also agree with the respondent that chronic pain must be continuous and severe enough to cause distress accompanied by a functional impairment or disability.
29I find that the applicant’s medical evidence does not establish chronic pain that has resulted in a functional impairment. The treating physician for the applicant is his family doctor, and his clinical notes and records do not have any mention of accident-related pain after the appointment four days following the accident where he mentioned a shoulder injury but that he was getting better. I have also not been pointed to convincing medical evidence of functional impairments.
30As a result, I find the appellant has not proven, on a balance of probabilities, that he suffers from chronic pain as a result of the accident that warrants removal from the MIG.
The treatment plan
31As the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plan in dispute is reasonable and necessary.
32The applicant raises the alternative argument that the respondent did not arrange for an insurer examination despite the recommendation of Dr. Naisi that the applicant should be treated outside of the MIG limits. In addition, the applicant submits that the denial of the treatment plan is too vague to constitute a valid medical reason for refusing to pay for the treatment plan as per s. 38(8) of the Schedule.
33The respondent submits that there is no requirement that it must carry out an insurer examination, but that it is one of the tools it can use to determine the issue of the MIG. It further adds that its denial letter dated November 3, 2022 was a proper denial.
34The respondent’s denial letter dated November 3, 2022 describes the reason for the denial of the psychological assessment as:
“I reviewed the medical records including the proposed treatment plan and pre-screen. The medical records do not support the need for psychological assessment. There is no objective medicals [sic] to correlate with the complaints noted in the pre-screen report. The injury is predominantly minor based on the available medical information.”
35After receiving Dr. Kwan’s records, the respondent re-confirmed the denial in a letter dated April 28, 2023:
“I have reviewed medical documentation from Dr. Kwan. The documentation did not indicate you require treatment beyond the Minor Injury Guideline and the OCF 18 dated 202/09/24 in the amount of $2200.00 for a Psychological Assessment will remain denied as it is not medically supported.”
36I agree with the respondent that the denial letters were compliant with s. 38(8) of the Schedule, in that they contain medical reasons and all other reasons for the denial. Specifically, I find that the letters clearly deny payment of the treatment plan; it refers to the details of the applicant’s impairments as being minor (a medical reason); and it references the MIG (satisfying s. 38(9)).
37The appellant further has not pointed me to a requirement of an insurer examination under the Schedule. Rather, s. 44(1) of the Schedule states that an insurer “may” require an insured person to attend an insurer’s examination.
38For the reasons set out above, I find that the applicant has not demonstrated on a balance of probabilities that the treatment plan submitted September 24, 2022, is payable due to non-compliance with s. 38(8) of the Schedule.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.
Award
40The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
41As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.
ORDER
42For the reasons outlined above, I find:
i. The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plan in dispute;
iii. No interest is payable;
iv. No award is payable;
v. The application is dismissed.
Released: November 20, 2025
Geneviève Painchaud
Vice-Chair