Citation: Han v. The Personal Insurance Company, 2025 ONLAT 24-002946/AABS

Licence Appeal Tribunal File Number: 24-002946/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:

Xu Han

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amanda Marshall

APPEARANCES:

For the Applicant:

Ryan Olson, Counsel

For the Respondent:

Andrew Cottreau, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Xu Han, the applicant was involved in an automobile accident on March 4, 2023, and sought benefits from the respondent, Personal Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied the treatment plans in dispute because the respondent determined that his accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. 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?

2. Is the applicant entitled to $3,897.20 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated June 30, 2023?

3. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan dated May 16, 2023?

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

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

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. He is not entitled to the treatment plans in dispute, interest or an award.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $3,500.00 if the insured person sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.”

5In order to be removed from the MIG, an insured person must 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 supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that concussion or concussion syndrome, chronic pain with functional impairment, or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.

6The applicant argues that he should be removed from the MIG based on his accident-related psychological impairment and chronic pain. In support of his position, he relies on the clinical notes and records (“CNRs”) of Dr. Dan Yeung, family doctor, the pre-screen report by Sherry Jian, psychotherapist, the clinical notes and records of Dr. Sunu Maria Liao, physiatrist, as well as the treatment plan for a psychological assessment from Dr. Svetlana Gabidulina, psychologist.

7The respondent submits that the applicant’s accident-related impairments fall within the definition of the MIG. It contends that the applicant has never been diagnosed with a psychological condition, nor suffers from chronic pain as a result of the accident.

Did the applicant sustain a psychological impairment as a result of the accident?

8I find the applicant has not demonstrated that he sustained an accident-related psychological impairment.

9I am not persuaded by the applicant’s submission that his psychological symptoms rise to the level of a non-minor injury. Dr. Yeung, the applicant’s family doctor, notes on March 6, 2023, that the applicant was in an accident and is anxious. The family doctor’s records provided were from March 4, 2022 to July 4, 2024 and there are no other notations with respect to anxiety or any psychological concerns.

10The applicant relies on the April 25, 2023, pre-screening report of Sherry Jiang, psychotherapist, which found that the applicant was experiencing emotional distress, frustration, irritation and fatigue as a direct result of the accident.

11I place little weight on Ms. Jiang’s report. The report does not indicate whether the interview was conducted in person or virtually. No psychometric testing was administered, nor does it appear that the applicant’s medical records were reviewed. Most importantly though, Ms. Jiang identifies herself as a registered psychotherapist, qualifying, which means that she is required to practice under supervision. No supervisor is listed on the report. In fact, Ms. Jiang’s registration with the College of Registered Psychotherapists of Ontario shows she is suspended as of May 1, 2025.

12The applicant also relies on the information contained in the pre-screen report attached to the psychological assessment treatment plan, dated May 16, 2023, submitted by Dr. Gabidulina. However, I find that the pre-screen report attached is Ms. Jiang’s report of April 25, 2023.

13Also, I find that the applicant relying on the OCF-18 as evidence/proof of his accident-related impairments is neither comprehensive nor objective. The applicant seeks to rely on evidence provided by the same clinic which seeks to provide the services in dispute.

14Based on the evidence before me, I find that the applicant has not established on a balance of probabilities that he suffers a psychological impairment as a result of the accident warranting removal from the MIG.

Does the applicant suffer from chronic pain as a result of the accident?

15I find that the applicant has not demonstrated on a balance of probabilities that he suffers from accident-related chronic pain with functional impairment to warrant removal from the MIG.

16An insured may be removed from the MIG if they suffer from chronic pain as a result of the accident. However, it is not enough for the insured to have pain over an extended duration of time – it must be accompanied by functional impairment.

17I note that the CNRs of Dr. Yeung indicate the applicant visited with his family doctor two days after the accident with complaints of chest wall pain and discomfort over his left buttock. He visited with his doctor again on May 15, 2023, to discuss his ongoing left buttock pain. The doctor assesses him as having a possible thigh strain and refers him to a physiatrist.

18The physiatrist, Dr. Liao, in his report of September 7, 2023, notes that the applicant has left piriformis syndrome/tight hamstrings and recommends stretches. No medication is prescribed.

19The only mention of chronic pain appears in the family doctor’s records of February 22, 2024 and pertains to the applicant’s right ankle; however, the applicant did not sustain an ankle injury in the accident.

20I find that the evidence presented does not establish that the applicant has accident-related chronic pain with functional impairment that warrants removal from the MIG.

13Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.

Interest

14As no benefits are overdue, no interest is payable under s. 51.

Section 10 Award

15The 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 no benefits are payable, an award under s.10 of Reg. 664 is not warranted.

CONCLUSION

16For the reasons stated above, I find that;

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG limits.

ii. The applicant is not entitled to the treatment plans in dispute.

iii. Neither interest nor an award is payable.