Licence Appeal Tribunal File Number: 24-005987/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:
Michelle Jiayin Guan
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bernard Trottier
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Simran Walia, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Michelle Jiayin Guan, the applicant, was involved in an automobile accident on June 17, 2023, 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 Co-operators General Insurance Company, the respondent, 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 $3,749.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated September 14, 2023?
iii. Is the applicant entitled to $2,144.93 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a plan dated February 5, 2024?
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 has not demonstrated that her injuries are non-minor, as defined by the Schedule, and that they could not be treated within the Minor Injury Guideline (“MIG”) limit.
4Since the applicant’s injuries are considered minor, the proposed treatment plans outside of the MIG are not payable.
5An award under s. 10 of Reg. 664 is not payable.
6Since no benefits are payable, no interest is payable.
ANALYSIS
The Minor Injury Guideline
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.”
8An 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.
9The two treatment plans in dispute sought treatment outside of the MIG limit. In the Case Conference Report and Order dated September 23, 2024, the parties agreed that the $3,500 MIG limit was exhausted.
10The parties dispute whether the applicant’s physical impairments place her outside of the MIG, whether the applicant suffered psychological impairments, as a result of the accident, that would warrant removal from the MIG, and whether the proposed treatment plans are reasonable and necessary.
The applicant’s physical impairments do not place her outside of the MIG
11The applicant submits that she visited her family physician, Dr. Wing Kin Tse, on August 15, 2023 (two months post-accident) with complaints of pain in her lower back and neck. Dr. Tse recommended physiotherapy, which the applicant began with Total Recovery Rehab Centre (“TRRC”) on September 14, 2023, with the goals of pain alleviation and range of movement restoration. The applicant argues that she has ongoing pain symptoms, as identified in the disputed OCF-18 from TRRC, requiring further physiotherapy, and that pain relief is a legitimate goal of treatment that justifies removing an injured person from the MIG.
12The applicant argues that the respondent has not conducted any insurer’s examinations (“IEs”) to refute the reasonableness and necessity of the proposed treatment plan for physiotherapy, and therefore the applicant should be removed from the MIG so that she may receive the required funding to continue her treatment.
13The respondent submits that the applicant provided hand-written clinical notes and records (“CNRs”) of Dr. Tse from her visits on June 20, 2023 (three days post-accident), and again on July 12, 2023 and August 15, 2023, and that these CNRs are not legible. As a result, the respondent submits that it could not identify any diagnoses or medical recommendations after the accident from these CNRs. The respondent directed me, further, to the transcribed CNRs of the applicant’s visit with Dr. Tse, from February 7, 2024, where there is no mention of pain or physical impairments.
14The respondent submits that the CNRs of Dr. Tse, and the totality of the evidence put forward by the applicant, support that she sustained soft-tissue injuries. The respondent argues that only the applicant could bring favourable evidence of the need for treatment to support her claim, and that she has failed to do so. The respondent cites the principle in Lévesque v. Comeau et al., 1970 CanLII 4 (SCC), [1970] SCR 1010 (“Lévesque”) where “the rule to be applied in such circumstances is that a Court must presume that such evidence would adversely affect her case.” The respondent submits that the applicant bears the burden of proving that her injuries fall outside of the MIG, and it argues that she has not met that burden.
15I find that the non-transcribed CNRs of the applicant’s visits with Dr. Tse, from June 20, 2023 to August 15, 2023, are not legible. Absent any legible information on these visits, I can only infer, according to the principle in Lévesque, that the applicant did not find them helpful to her case. I find, also, that there is no mention of pain of physical impairments in the CNRs of February 7, 2024.
16I find that the pain complaints in the disputed OCF-18 are not corroborated by the CNRs of Dr. Tse. The applicant has not directed me to evidence that the applicant’s injuries are more than an injury defined as “minor” under s. 3(1) of the Schedule. I note that the Schedule does not obligate an insurer to conduct IEs, and that the burden of proof remains with the applicant to demonstrate entitlement to benefits on a balance of probabilities.
17I find that the applicant has not demonstrated that she sustained any physical injuries beyond those defined as “minor” under s. 3(1) of the Schedule. For the reasons above, I find on a balance of probabilities that the applicant did not suffer physical injuries that place her outside of the MIG.
The applicant’s psychological impairments do not place her outside of the MIG
18The applicant submits that the transcribed CNRs of Dr. Tse, from her visit on February 7, 2024, state that she suffered from anxiety and depression. On that date, Dr. Tse referred the applicant for a psychiatric assessment at a hospital.
19The applicant submits, further, that she consulted with Dr. Svetlana Gabidulina, psychologist, and Mandy Fang, psychotherapist, on January 23, 2024, who state that, since the accident, the applicant had been suffering from insomnia, nightmares related to the accident, fatigue, racing thoughts, low mood, poor cognitive ability, anxiety, low motivation, and avoidance behaviour. For brevity, I will refer to the opinions in their psychological consultation report as those of Dr. Gabidulina. Dr. Gabidulina opined, in her report dated January 23, 2024, that the applicant should not remain within the MIG due to her ongoing psychological impairments.
20The applicant submits that the respondent has not conducted an IE to refute that the applicant suffers psychological impairments that require treatment outside of the MIG. The applicant argues that the corroborating medical records, and lack of disputing evidence from the respondent, demonstrate that the treatment plan proposing a thorough psychological assessment is reasonable and necessary and that the applicant should be removed from the MIG.
21The respondent argues that the transcribed CNRs of Dr. Tse, from February 7, 2023, do not support that the applicant suffered psychological impairments as a result of the accident. The respondent submits that Dr. Tse linked the applicant’s depression to her mother’s recent death, a strained relationship with her stepfather, and an unsupportive spouse. The applicant submits that Dr. Tse makes no reference to the accident in that note.
22The respondent submits, further, that the applicant did not follow through with Dr. Tse’s referral to an OHIP-funded psychiatrist in the two years between the referral and the hearing. The respondent argues that the applicant’s decision to not take advantage of this referral indicates, further, that she does not suffer from psychological impairments that require treatment beyond the MIG.
23The respondent submits that the report of Dr. Gabidulina is from a psychological pre-screening, based on subjective self-reporting that is not corroborated by a review of medical documents or any psychometric testing. The respondent submits, further, that the consultation report is silent on the applicant’s family troubles and, therefore, does not examine the causes of the applicant’s psychological symptoms. For these reasons, the respondent argues that the consultation report should be given little weight.
24Lastly, the respondent submits that is did not conduct an IE because it could not find any evidence in the medical records that the applicant suffered any psychological impairments as a result of the accident.
25I find that the evidence before me indicates that the applicant suffered psychologies symptoms, but that the applicant has not demonstrated that these were caused by the accident.
26I find that the CNRs of Dr. Tse, from February 7, 2023, point to psychological stressors unrelated to the accident. I assign little weight to the consultation report of Dr. Gabidulina, because it did not examine the stressors in the applicant’s life that may have led to her psychological symptoms, and yet it concluded that they were caused by the accident.
27As stated earlier, the Schedule does not obligate an insurer to conduct IEs, and that the burden of proof remains with the applicant to demonstrate entitlement to benefits on a balance of probabilities.
28For the reasons above, I find that the applicant has not demonstrated on a balance of probabilities that she suffered psychological impairments, as a result of the accident, that require treatment outside of the MIG.
The applicant is not entitled to the funding for the proposed treatment plans
29I find that the applicant’s injuries, as a result of the accident, are minor as defined by the Schedule.
30As the MIG limits have been exhausted, there is no further entitlement to medical or rehabilitation benefits and therefore an analysis into whether the treatment plans are reasonable and necessary is not required.
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. Since I have found that no benefits are payable, I do not find that the respondent unreasonably withheld or delayed payment. As a result, an award under s. 10 of Reg. 664. is not warranted.
Interest
32As no benefits are owing, the applicant is not entitled to interest.
ORDER
33For the reason above, I find that:
i. The applicant’s injuries are minor as defined by the Schedule;
ii. The applicant is not entitled to the disputed treatment plans; and
iii. This application is dismissed.
Released: December 3, 2025
Bernard Trottier
Adjudicator