Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-009679/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:
Li Li
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Dominique Setton
APPEARANCES:
For the Applicant: Aylina Dhanji, Counsel
For the Respondent: Aleah Thomas, Counsel
HEARD: In Writing
OVERVIEW
1Li, the applicant, was involved in an automobile accident on July 31, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
1The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined by section 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 $3,989.56 for physiotherapy services proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 dated April 22, 2021?
iii. Is the applicant entitled to $3,981.88 for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan/OCF-18 dated August 2, 2021?
iv. Is the applicant entitled to $10.00 for medical expenses, submitted on a claim form (OCF-6) dated November 11, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delated payments to the applicant?
vi. Is the applicant entitled to any interest on overdue payment of benefits?
RESULT
i. The applicant’s injuries are predominantly minor and therefore subject to the Minor Injury Guideline.
ii. The treatment plans are not payable as the applicant’s injuries are predominantly minor and subject to the MIG limits.
iii. The applicant is not entitled to any medical expenses as the applicant’s injuries are predominantly minor and subject to the MIG limits.
iv. There applicant is therefore not entitled to any interest as no benefits are payable.
v. There is no award payable.
vi. The application is dismissed.
ANALYSIS
Are the applicant’s injuries predominantly minor?
2I find the applicant has failed to meet her onus and has failed to show that she should be removed from the MIG.
3Section 18 (1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more sprain or strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury.”
4An insured can 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. In all cases, the burden of proof lies with the applicant.
5The applicant submits that they should be removed from the MIG due to psychological impairments caused by the accident, and due to chronic pain causing functional impairments.
Are the applicant’s injuries or impairments outside the MIG?
6Following the accident the applicant attended the Markham Stouffville Hospital, as reported in the clinical notes and records of the applicant’s evidence at Tab 3, she reported neck-pain, numbness, shoulder pain, and no headache. The police report confirmed the above. Nevertheless, the applicant was released from the hospital, the same day, and the hospital shows comments that that did not indicate particular concerns.
7The applicant consulted her family physician Dr. Andy Lai, two weeks later, on August 13, 2019. The doctor, after a physical examination, stated that there are no physical impairments because all imaging is normal, and although neck pain, and headaches are reported, there are no neurologic deficits noted, and that concussion would be monitored. There was no diagnosis of concussion. The doctor recommended mild stretching, ice water, or warm water compresses, and some chiropractic treatment, acupuncture, and patient education. The same recommendation was made in a follow up on October 15, 2019.
8In referral to a dermatologist, Dr. Ken Lee Choi, his clinical notes and records of December 19, 2019, show no concerns about the face and no dermatological effects because of persisting neck pain.
9The respondent submits that the applicant has not shown that her reported pain is related to the current accident because the applicant was involved in a prior accident December 14, 2015, where she received a number of treatments, directly related to the earlier accident, which was far more serious than the present accident at issue.
10The respondent submits that the evidence does not show that the complaints of the present accident have been distinguished from the previous motor vehicle accident, as they are the same and therefore a continuation. In short, that there is no causal link between the present accident and her pain complaints. Furthermore, the respondent submits that the applicant is getting better and that the present accident has not negatively affected her or caused functional limitation. I agree with the respondent. The applicant has not shown she should be removed from the MIG, due to chronic pain or psychological impairment.
Psychological impairments
11The applicant submits that she should be removed from the MIG since she has not reached her pre-accident state because she suffers from chronic pain with functional impairment and psychological concerns.
12The applicant relies on the report of the psychologist Dr. McDowall, dated July 14, 2021, who diagnosed the applicant with Major Depressive Disorder with Anxious Distress and Specific Phobia, in particular travel due to the accident. In a second diagnosis, of August 2, 2021, she was diagnosed by Dr. McDowall, with Chronic Myofascial Strain with Insomnia and some Anxiety problems. The applicant believes she should be removed from the MIG, because she suffers from the psychological disorders.
13The respondent argues that the applicant’s psychological symptoms stem from a previous 2015 accident, and showed that the complaints were the same. The respondent argues that they are psychological complaints, which related to physical pain from musculoskeletal soft tissue injuries from the earlier accident, and that her mood instability is also part of the pain of that accident. The respondent also submits that any stress was related to her inability to work, due to the earlier accident. As a result, there was no psychological impairment directly due to the present accident.
14The respondent argues that the clinical notes and records of the family doctor showed that following the 2015 accident the applicant had musculoskeletal neck pain, mild left finger numbness and daily headaches and no neurological deficits. The applicant was reassessed monthly or quarterly in the years following the accident, through various medical appointments which were attributed to the 2015 accident. For example, a spinal MRI in September 2016, revealed mild degenerative changes, regarding the cervical spine. Regarding insomnia, she was assessed in 2018 and prescribed medication. In February of 2019, she was again referred for mood instability, depression and stress. These examples showed that there was there was no causal link made to the current motor vehicle accident.
15The 2015 accident resulted in the applicant not being able to work and this continued to the time of the current accident. She was not working at the time of the present accident. Further, I note that as a result of the previous accident, the applicant was prescribed physiotherapy, chiropractic, acupuncture, and psychological treatment.
16Dr. Lai did not mention the cause of the applicant’s pain, in the notes of October 15, 2019 being caused by the present accident. The notes for the current accident was one of many clinical notes of the family doctor, which followed the previous 2015 accident. I did not find that the notes for the present accident showed a causal link of the applicant’s neck pain to the current accident.
17In the Psychological report, of Dr. McDowall, of July 14, 2021, it is noted that that the information provided to her was by the applicant through a direct interview, conducted by telephone due to the Covid-19 outbreak, and she relied on psychological testing as listed in her report. The reports contained some conflicts. The psychologist reports that the applicant told her she was in a prior accident, in 2015, and that accident prevented her from continuing work, and she was not working when the second accident occurred. However, in July 2021, two years after the current accident of July 19, 2019, the applicant told the psychologist that she began to work, and that prior to this current accident she was healthy. I found that the evidence was contradictory, because the applicant omitted important health information in her history to her psychologist. It was contradictory to me that the applicant was not working at the time of the present accident due to the effects of the first accident, but at the time of the interview with the psychologist, in 2021, two years after the present accident, that she was beginning to work, and she told her that she had been healthy before the present accident.
18The applicant told Dr. McDowell that the neck pain from the 2015 accident never fully went away, and now she had pain in her shoulders and back. The psychologist report states what she based her diagnosis on the applicant’s self reporting, and the tests the psychologist administered. I find that due to evidence the psychologist relied on, which was based on the applicant’s self reporting, and the lack of context with the 2015 accident, I gave no weight to this evidence because of the conflicts reported to the psychologists, and because the psychologist relied on the applicant’s self report.
19I gave full weight to the family doctor’s notes, because that doctor had been the applicant’s primary care provider for years and had been treating her for all of her impairments stemming from the 2015 accident. I note that the family doctor provided no causal link to the current accident with respect to the applicant’s complaints regarding the present accident.
Chronic Pain with function impairment
20Another way to remove a person from the MIG is to show that the person suffers from chronic pain with functional impairment as a result of the accident. Chronic pain is not defined in the Schedule and a practical way to examine it is by seeing how the pain impacts their day to day living, the functional impairment.
21The applicant submits, based on an OCF-18 dated December 21, 2019, of Dr. Palanzas, that she has limited ability to function, decreased range of motion, in the cervical thoracic lumbar spine and shoulder, hip region, symptoms in upper left extremities, has difficulty standing, sitting, walking, and lifting, unable to participate in activities of normal living, social activities and housekeeping activities.
22The respondent submits that in a consultation report from the physiatrist Dr. Wong, of November 6, 2023, he confirmed that the applicant complained of chronic pain in the neck and back from a motor accident of 2015 and 2019. He reports starting medication in 2020, but the patient didn’t want to take it, and the pain persisted.
23The respondent also provided a report from a neurologist, dated January 5, 2025, which assessed her last three years, where she reported feeling off balance, and having headaches, and presented to the hospital on December 25, 2023. At that time, she had a CT scan, which showed no significant abnormality, and that since her discharge from the hospital in December, the applicant reported “significant improvement” and that she is back to “baseline” even though she had some mild numbness, in her left arm and leg.
24Her family doctor’s clinical notes and records made note of a prior surgery in 2021, for stage 1 lung cancer, which required follow up. He also reported that the applicant does not smoke or drink, lives alone, and works as a beautician. I find this relevant, because the applicant had other health issues that were concurrent, and she managed to continue, being functional in her life and her work.
25Considering the reports from the physiatrist, the neurologist and her family doctor, I find that on a balance of probabilities, the applicant has not provided evidence that her chronic pain has affected her functionally. I find that she has had a number of medical examinations and interventions, which have provided a progression of care and showing that she is improving because she is living alone, and therefore independent, and she is presently working, and the applicant has not pointed or directed me to evidence that she has particular limitations.
26I give full weight to the applicant’s family doctor’s clinical notes and records, who noted in the current accident that there was, normal imaging, no neurologic or alarming signs. Dr. Lai did not mention the cause of the applicant’s pain, in the notes of October 15, 2019, which was one of many clinical notes of the family doctor, which followed the 2015 accident, and the current accident. I find there is no causal link to chronic pain related to the current accident.
27I find that the applicant does not suffer from chronic pain with functional impairment as a result of the accident.
28I find that the applicant has not met her onus, and the applicant’s injuries are predominantly minor.
29As I find that the applicant’s injuries are predominantly minor and are subject to treatment within the MIG, it is not necessary for me to consider the reasonableness and necessity of the treatment plans and medical expenses.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits payable no interest is payable.
Award
31The 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 there are no benefits payable, there have been no benefits unreasonably withheld, and there is therefore no award payable.
ORDER
32I find therefore:
i. The applicant’s injuries are predominantly minor and therefore subject to the Minor Injury Guideline.
ii. The treatment plans are not payable as the applicant’s injuries are predominantly minor and subject to the MIG limits.
iii. The applicant is not entitled to any medical expenses as the applicant’s injuries are predominantly minor and subject to the MIG limits.
iv. There applicant is therefore not entitled to any interest as no benefits are payable.
v. There is no award payable.
vi. The application is dismissed.
Released: November 25, 2025
Dominique Setton
Adjudicator