Citation: Lin v. Wawanesa Mutual Insurance Company, 2025 ONLAT 23-010442/AABS

Licence Appeal Tribunal File Number: 23-010442/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:

Hsiang Yu Lin

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Gary Marshall

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

James Schmidt, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Hsiang Yu Lin, the applicant, was involved in an automobile accident on May 19, 2021 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, Wawanesa Mutua 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 that the MIG limits have been exhausted.

ii. Is the applicant entitled to $4,149.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (treatment plan) dated February 15, 2022?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated October 26, 2021?

iv. Is the applicant entitled to the following expenses for medication, each submitted on an OCF-6:

i. $18.37 dated August 19, 2022;

ii. $57.08 dated November 8, 2022; and

iii. $18.37 dated April 26, 2023.

v. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries are minor and are subject to the $3,500 limitation of the MIG.

4Since the applicant remains within the MIG, it is not necessary to consider if the treatment plans and OCF-6s in dispute are reasonable and necessary. No interest is due as there are no overdue payment of benefits and an award is not granted.

ANALYSIS

Applicability of the MIG

5I find that the applicant has not demonstrated, on a balance of probabilities, that her injuries fall outside 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 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 she should be removed from the MIG due to chronic pain, specifically, chronic neck pain that radiates through her neck and into her arms, numbness in hands as well as, lower back pain that radiates to her left knee occasionally with some paresthesia.

Chronic Pain

9To support her claim, the applicant has submitted the clinical notes and records (“CNRs”) from a visit to Dr. Kris Cheng. Dr. Cheng is a GP at a walk-in clinic attended by the applicant on October 19, 2021. The CNRs from Dr. Cheng dated October 19, 2021, August 9, 2022, and February 8, 2024, mention chronic pain, however I do not see any mention of a functional impairment in these CNRs.

10The applicant has also submitted the OCF-18 for physiotherapy services proposed by physiotherapist, Ahmed Afifi, on February 15, 2022, with stated goals of pain reduction, increased strength, and increased range of motion, to return to activities of normal living.

11The respondent argues that the applicant sustained only soft tissue injuries, as confirmed by the May 12, 2022, s. 44 assessment conducted by Dr, Anthony Marchie, orthopaedic surgeon. Dr. Marchie diagnosed the applicant as follows:

Ms. Lin has sustained myofascial strain to her upper and lower back, a left rotator cuff tendinopathy, left knee internal derangement as a result of the subject motor vehicle accident. Prognosis for a full recovery is good.

12Even if I accepted the references in Dr. Cheng’s CNRs as establishing that the applicant has chronic pain, I find that the applicant has not met the second part of the test. That is, she has not established that she has a functional impairment related to her chronic pain.

13Therefore, I find that on the balance of probabilities, the applicant has not met her onus to establish that she has chronic pain with a functional impairment that warrants removal from the MIG.

Psychological Injury

14The applicant has submitted that she should be removed from the MIG on psychological grounds.

15The applicant argues that she suffers from emotional distress and said she struggled with anxiety, irritability, frustration, depression, and a sleep disorder. To support her claim, the applicant has submitted the previously mentioned CNR’s from Dr. Cheng. On or around June 14, 2021, the applicant visited Somatic Assessments to consult with Dr. Sharleen McDowall, Psychologist, with concerns of psychological symptoms resulting from the subject accident. Dr. McDowall opined that a thorough psychological assessment be conducted to determine a proper course of treatment and that given the presence of psychological symptoms, the applicant’s injuries should fall under the Minor Injury Guideline. This opinion is based on a pre-screen interview that was not conducted by Dr. McDowall.

16I place little weight on the pre-screening report of Dr. McDowall, as it relies solely on the applicant’s self-reported symptoms, the interview was not conducted by Dr. McDowall, and the report does not constitute a comprehensive psychological evaluation.

17I have reviewed the CNRs from Dr. Cheng and note that the applicant did not make any corroborating statements of any of the alleged psychological injuries or impairments to Dr. Cheng.

18The respondent argues that the applicant does not meet the diagnostic criteria for any psychological disorder as a result of the accident as was opined by Dr. Karen Spivak, Psychologist, during a s. 44 assessment conducted on May 12, 2022.

19I place significant weight on Dr. Spivak’s IE report because it involved psychometric testing and a clinical interview. The report of Dr. Spivak directly addresses the psychological impairments reported by the applicant and the report has not been disputed by any contemporary assessment which includes a comprehensive analysis.

20Based on the evidence, I find on a balance of probabilities that the applicant has not met her onus to establish she has a psychological condition which would warrant removal from the MIG.

21For these reasons, I find on the balance of probabilities that the applicant has not met her onus to demonstrate she should be removed from the MIG.

22As the applicant has been held to the MIG, it is not necessary to review the disputed treatment plans and the OCF-6 to determine whether they are reasonable and necessary.

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. Since the applicant no benefits withheld or delayed, and an award is not granted.

ORDER

25For the reasons outlined above, I find that:

i. The applicant’s injuries are minor and are subject to the $3,500 limitation of the MIG.

ii. Since the applicant remains within the MIG, it is not necessary to consider if the treatment plans and OCF-6s in dispute are reasonable and necessary.

iii. The applicant is not entitled to interest, and no award is granted.