Liu v. Pembridge Insurance Company, 2025 CanLII 125935

Citation: Liu v. Pembridge Insurance Company, 2025 ONLAT 24-004163/AABS

Licence Appeal Tribunal File Number: 24-004163/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:

Wenxuan Liu

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Simran Walia, Counsel

HEARD: By way of written submissions

OVERVIEW

1Wenxuan Liu, the applicant, was involved in an automobile accident on April 2, 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 the respondent, Pembridge 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?

ii. Is the applicant entitled to $2,144.93 for a psychological assessment proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 submitted on May 16, 2023?

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

RESULT

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.

4Since the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plan.

5The applicant is not entitled to the treatment plan based on the respondent’s noncompliance with the requirements set out in s. 38 of the Schedule.

6The applicant is not entitled to interest.

7The application is dismissed.

PROCEDURAL ISSUE – AWARD REQUEST

8The applicant makes submissions requesting an award under s. 10 of Reg. 664.

9The respondent directs me to the Case Conference Report and Order dated August 12, 2024 (“CCRO”), which indicates that the issue of the award claim was withdrawn.

10The respondent submits that the applicant has never advised that he intended to pursue a special award, nor did he provide particulars of the claim. Accordingly, the respondent requests that the Tribunal strike the special award issue in the applicant’s submissions.

11The applicant does not reply.

12I note that at the beginning of the applicant’s submissions, he lists the issues in dispute as being the MIG, a plan for a psychological assessment, and interest. Although the applicant makes submissions with respect to an award, he does not list this as an issue in dispute.

13Since the CCRO indicates that the issue of an award was withdrawn, I find that it is no longer in dispute. Accordingly, I will not address it.

ANALYSIS

Applicability of the MIG

14Section 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.”

15An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside 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.

16The applicant submits that he has a psychological impairment, and he alludes to the fact that he suffers from chronic pain because of the accident.

The applicant does not suffer from chronic pain that would remove him from the MIG

17The applicant has not met his onus to prove on a balance of probabilities that he has chronic pain with functional impairment that would remove him from the MIG.

18The applicant submits that he was driving on the highway when his car began smoking and eventually went up in flames. He further submits that he sustained serious physical injuries because of the accident that affect his everyday activities.

19In support of his position that he should be removed from the MIG, the applicant relies on the Psychological Consultation Report dated April 20, 2023 of Dr. Svetlana Gabidulina, psychologist, which notes that the applicant reported pain in his shoulder and lower back, reoccurring headaches, dizziness, nausea, fear, anxiety, depression, fatigue, a deterioration in concentration and memory, difficulty focusing, and a deterioration in his quality of sleep. Dr. Gabidulina found that the applicant was “experiencing many of the symptoms commonly found in individuals suffering from post-accident psychological impairment” and that his injuries should not fall within the MIG.

20The applicant also refers to a Financial Services Commission of Ontario (“FSCO”) decision in submitting that where chronic pain is proven to exist, the MIG does not apply. I am not bound by decisions of the FSCO. Further, I find that, to be removed from the MIG, an applicant must suffer from chronic pain with functional impairment.

21The applicant submits that he suffered mainly from soft tissue injuries because of the accident, however, he did not recover in the usual healing time seen with these types of injuries and he has not reached his pre-accident state.

22The respondent points out that the applicant reported that when his vehicle began smoking, he pulled over on the highway and exited his vehicle. No emergency personnel arrived at the scene. The respondent submits that there is absolutely no evidence that the applicant reported any acute injuries in the immediate aftermath of the accident, nor is there any evidence to support any mechanism of possible physical injury either.

23The respondent further points out:

i. The applicant did not visit his family physician, Dr. Michael Ho, until June 6, 2023, over two months after the accident, and the applicant did not mention the accident.

ii. The applicant also went to see Dr. Ho on June 17 and July 29, 2023, and again, made no mention of the accident.

iii. The applicant has not been treated by any medical professional since July 29, 2023.

24I am not persuaded that the applicant suffers from chronic pain because of the accident. I note that he only reported pain complaints during the psychological consultation that was conducted on April 20, 2023, just eighteen days after the accident. Although the applicant met with Dr. Ho in June and July of 2023, he did not report the accident, nor any injuries from the accident. I find that the applicant has not directed me to any evidence, other than during the psychological consultation, where he reported any injuries resulting from the accident. Further, the applicant has not directed me to any evidence that he has functional impairment as a result of chronic pain.

25For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that he has chronic pain with functional impairment that would remove him from the MIG.

The applicant does not suffer from a psychological condition that would remove him from the MIG

26The applicant has not met his onus to prove on a balance of probabilities that he has a psychological condition that would remove him from the MIG.

27The applicant submits that he sustained serious psychological injuries because of the accident that affect his everyday activities.

28I am not persuaded by Dr. Gabidulina’s consultation report. There is no indication with respect to whether Dr. Gabidulina met with the applicant. I note that the interview was conducted by Sherry Jiang, registered psychotherapist (qualifying), and the report was signed by Dr. Gabidulina. Based on my review of the consultation report, I find that Dr. Gabidulina’s opinions were formed based on the applicant’s self-reporting to Sherry Jiang, and without a review of medical records or psychological testing. Further, the applicant does not report any psychological injuries to Dr. Ho during his three appointments after the accident.

29For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that he has a psychological condition that would remove him from the MIG.

30For the reasons set out above, I find that the applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.

31As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the plan in dispute. However, I will address the applicability of s. 38 of the Schedule.

The applicant is not entitled to the treatment plan based on the respondent’s noncompliance with s. 38

32The applicant has not demonstrated on a balance of probabilities that he is entitled to the treatment plan based on the respondent’s noncompliance with the requirements set out in s. 38 of the Schedule.

33Section 38(8) of the Schedule provides that the insurer must reply to a plan within 10 business days after receipt of the treatment plan, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies, if the plan was incurred during the period of non-compliance.

34The applicant submits that the respondent is prohibited from taking the position that the applicant has an impairment to which the MIG applies as stated in s. 38(11) of the Schedule.

35The applicant does not direct me to any evidence in support of his submission, nor does he make any further submissions in this regard.

36For these reasons, I find that has not proven on a balance of probabilities that he is entitled to the treatment plan based on the respondent’s noncompliance with the requirements set out in s. 38.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.

ORDER

38For the above reasons, I find:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.

ii. Since the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plan.

iii. The applicant is not entitled to the treatment plan based on the respondent’s noncompliance with the requirements set out in s. 38 of the Schedule.

iv. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.

v. The application is dismissed.