Licence Appeal Tribunal File Number: 24-001072/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:
BoJia Wang
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Sonya Reid, Counsel
HEARD:
By way of written submissions
OVERVIEW
1BoJia Wang, the applicant, was involved in an automobile accident on December 15, 2022, 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, Co-operators General 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 limit (“MIG”)?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 12, 2023, to date and ongoing?
iii. Is the applicant entitled to $200.00 ($1.300.00 less $1,100.00 approved) for Physiotherapy Services, proposed by Uheal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated February 11, 2023?
iv. Is the applicant entitled to $3,749.56 for Physiotherapy Services, proposed by Uheal Rehab Centre in a treatment plan dated April 12, 2023?
v. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated March 9, 2023?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant’s injuries are predominantly minor; thus, the MIG limit applies.
As the applicant is subject to the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.
The applicant is not entitled to a NEB.
The applicant is not entitled to an interest or an award.
ANALYSIS
Are the applicant’s injuries predominantly minor?
4I find that the applicant’s injuries are predominantly minor and that he is therefore subject to the MIG limit.
5Section 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.”
6An 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.
7The applicant submits that he should be removed from the MIG due to psychological impairment and chronic pain resulting from the accident. I will address each in turn.
Psychological Impairments
8I find that the applicant did not sustain psychological impairments that warrant removal from the MIG.
9The applicant argues that his psychological symptoms, including sleep disturbances, nightmares, anxiety, depression, frustration, and concentration difficulties, are severe and fall outside the scope of the MIG. He relies primarily on a psychological pre-screen report prepared by Dr. Sharleen McDowall, a psychologist, who identified symptoms such as poor mood, fear, frustration, and cognitive difficulties. Dr. McDowall concluded that these symptoms were directly related to the accident and recommended removal from the MIG.
10The applicant also relies on clinical notes and records from Dr. Derek Ng, a family physician, who documented anxiety and unstable mood. Physiotherapist Ahmed Afifi noted fatigue, malaise, sleep disturbances, and attention issues. Chiropractor Dr. Richard Tavares, in an OCF-3, identified chronic headaches, fatigue, dizziness, and diminished cognitive function.
11The respondent submits that the applicant’s psychological symptoms are not sufficiently severe to warrant removal from the MIG. It argues that the symptoms described, such as anxiety and mood disturbances, are common residual effects of minor accidents and do not amount to a psychological impairment. The respondent also challenges the validity of psychological “diagnoses” made by Dr. Tavares and Afifi, noting that such assessments fall outside the scope of practice for chiropractors and physiotherapists. The Tribunal has consistently held that psychological impairments must be diagnosed by qualified mental health professionals.
12The clinical notes from Dr. Ng, dated January 2024, indicate that the applicant sought treatment in China for anxiety and unstable mood. However, there is no clear link between these symptoms and the accident, nor is there evidence that the physician attributed the anxiety to the accident.
13While Dr. McDowall’s pre-screen report identifies psychological symptoms, it is based primarily on the applicant’s self-reporting and does not include objective psychological testing or a formal diagnosis. I find that pre-screen reports alone are insufficient to justify removal from the MIG, particularly in the absence of corroborating evidence from independent medical assessments.
14I accept the respondent’s submission that the psychological diagnoses provided by Dr. Tavares and Afifi should be given limited weight, as they fall outside the scope of practice of each as a chiropractor or physiotherapist. Furthermore, the clinical notes from Dr. Ng do not establish a causal link between the applicant’s psychological symptoms and the accident.
15On a balance of probabilities, I find that the applicant has not established that he sustained a psychological impairment that would warrant removal from the MIG.
Chronic pain with functional impairment
16I find that the applicant did not sustain a chronic pain with functional impairment that warrants removal from the MIG.
17The applicant submits that he should be removed from the MIG due to chronic pain resulting from the accident. He states that he sustained immediate injuries to his neck, shoulders, lower back, and legs, as well as headaches, as documented in the OCF-1 and referenced in Dr. McDowall’s psychological pre-screen report. The applicant relies on the opinion of physiotherapist Afifi, who noted that the applicant’s pain caused functional limitations, including difficulty sleeping, reduced tolerance for sitting, standing, walking, lifting, and carrying, and an inability to drive or perform housekeeping tasks. Afifi also reported that pain interfered with the applicant’s ability to attend classes, complete schoolwork, and participate in physical and social activities. Although some improvement was noted, Afifi indicated that the applicant continued to experience significant limitations due to pain, weakness, and stiffness.
18The applicant also relies on the Disability Certificate (OCF-3) completed by Dr. Richard Tavares, which states that the applicant suffers a complete inability to carry on a normal life for a period exceeding 12 weeks. Clinical notes from Uheal Rehab Centre document ongoing complaints of leg pain, swelling, sleep disturbances, and physical limitations more than two years post-accident. The applicant argues that these ongoing symptoms demonstrate that he has not returned to his pre-accident level of functioning and that his chronic pain significantly impairs his daily life, justifying removal from the MIG.
19The respondent submits that the applicant does not suffer from chronic pain syndrome and that a diagnosis of chronic pain, without evidence of functional impairment, is insufficient to warrant removal from the MIG. The respondent emphasizes that the Tribunal requires evidence that chronic pain is accompanied by a functional impairment that prevents the applicant from engaging in substantially all of his pre-accident activities.
20The respondent appears to conflate the test for removal from the MIG with the test for NEB entitlement. Under the Schedule, the standard for MIG removal is whether the applicant suffers from chronic pain that results in a functional impairment—not whether the pain prevents engagement in most pre-accident activities. While assessing functional impairment may involve considering what the applicant can no longer do because of chronic pain, that analysis is distinct from applying the NEB threshold. My assessment focused on whether the applicant’s chronic pain produces a functional impairment consistent with the MIG exception, not on the NEB standard, which is irrelevant here.
21The respondent refers to the AMA Guides, which outline six criteria for chronic pain syndrome, of which at least three must be met: prolonged use of prescription medication, excessive dependence on caregivers, physical deconditioning, social withdrawal, failure to restore pre-injury function, and development of psychosocial sequelae. The respondent argues that the applicant has not provided sufficient evidence to meet any of these criteria. While the applicant has reported pain and some limitations, the respondent maintains that there is no objective medical evidence demonstrating that the applicant’s pain has resulted in a functional impairment of the severity required to remove him from the MIG.
22The OCF-1 dated December 16, 2022, notes complaints of neck and low back pain, headaches, and psychological symptoms such as anxiety and sleep disturbance. Dr. McDowall’s pre-screening interview also references ongoing leg pain and dizziness. Afifi’s OCF-18, dated February 11, 2023, reiterates the applicant’s reported functional limitations due to pain. Dr. Tavares’s OCF-3 similarly states that the applicant is unable to carry on a normal life. However, these opinions are primarily based on the applicant’s self-reporting and are not supported by objective clinical findings or functional assessments.
23While I accept that the applicant continues to experience some degree of pain, I find that he has not demonstrated, on a balance of probabilities, that his pain is accompanied by a functional impairment of the nature and severity required to remove him from the MIG. The evidence does not establish that the applicant’s chronic pain results in functional limitations beyond what is contemplated under the MIG. There is also insufficient evidence that the applicant meets the AMA Guides criteria for chronic pain syndrome.
24Accordingly, I find that the applicant has not sustained chronic pain with functional impairment that would justify removal from the MIG.
Is the applicant entitled to the disputed treatment plans?
25As the applicant remains within the MIG, I do not need to address whether the disputed treatment plans are reasonable and necessary.
Is the applicant entitled to an NEB?
26I find that the applicant is not entitled to an NEB.
27Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which generally focuses on a comparison of the applicant’s pre- and post-accident activities.
28The applicant submits that while the NEB threshold is high, it should not be interpreted so narrowly as to make qualification unattainable. He relies on Bissessar v. State Farm Mutual Automobile Insurance Company (FSCO A11-000204) and Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, which clarify that a significant reduction in quality of life may satisfy the test, and that “substantially all” does not mean “all.” The applicant asserts that the NEB was improperly denied despite submitting a completed OCF-3 and supporting medical documentation.
29The applicant relies on the OCF-3 completed by Dr. Tavares, which indicates a complete inability of anticipated duration greater than 12 weeks. He argues that his physical pain, fatigue, anxiety, and sleep disturbances have substantially diminished his quality of life.
30The applicant reports experiencing physical and psychological impairments following the accident, including pain in the neck, shoulders, back, and legs, headaches, sleep disturbances, nightmares, anxiety, depression, frustration, and difficulty concentrating. He states that these impairments have affected his ability to function as a full-time student, resulting in fatigue, poor memory, reduced appetite, emotional instability, irritability, and social withdrawal. He also avoids driving and travelling due to fear and anxiety. The applicant claims these impairments have significantly impacted his daily activities and his ability to return to his pre-accident level of functioning.
31The respondent submits that the applicant is not entitled to NEB. Pursuant to Section 36(3) of the Schedule, entitlement to NEB begins only after the submission of a Disability Certificate. The respondent received the OCF-3 on February 6, 2023, and acknowledges that the disputed period falls within the 104-week timeframe set out in Section 12(3)(c). The respondent argues that the applicant must meet the strict test under Section 12(1), demonstrating a complete inability to carry on a normal life. While the applicant emphasizes that “substantially all” does not mean “all,” the respondent relies on Bobeta v. Aviva Canada Inc., [2016] O.F.S.C.D. No. 299, which interprets “substantially all” as “more than most, a goodly number, or a majority.”
32The respondent also relies on Heath, asserting that the applicant has failed to provide sufficient evidence of his pre- and post-accident activities to enable a meaningful comparison. Without such evidence, the respondent submits that the applicant has not met the burden of proof.
33I agree with the respondent. Although the applicant has experienced discomfort, the evidence indicates that he resumed academic activities and daily functioning. The medical evidence does not indicate that the applicant’s accident-related impairments resulted in a continuous inability to engage in substantially all of his pre-accident activities during the relevant period.
34I find that the applicant has not proven, on a balance of probabilities, that he suffers from a complete inability to carry on a normal life as a result of the accident. While some evidence of impairment has been submitted, it does not meet the high threshold required for NEB entitlement.
35The applicant has not provided evidence of his pre-accident activities or demonstrated how his ability to engage in those activities has changed. He does not identify which activities he valued, nor does he provide information regarding their frequency or time commitment, as required by Heath.
36The applicant has not directed me to any medical opinion from a treating physician confirming a complete inability to carry on a normal life. Although the OCF-3 indicates such an inability, it is not determinative on its own. The OCF-3 is a form used to apply for benefits and does not constitute a comprehensive assessment of the applicant’s impairments.
37The applicant relies on self-reported pain as evidence of his inability to engage in pre-accident activities. However, Heath requires that, where pain is the primary factor, the applicant must demonstrate that it practically prevents engagement in those activities. I find that the applicant’s evidence does not meet this requirement.
38Accordingly, I find that the applicant has not met the high threshold for establishing a complete inability to carry on a normal life. Therefore, the applicant is not entitled to a NEB.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefit is payable, interest does not apply.
Award
40The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
41The applicant submits that the respondent ignored medical evidence from his treating practitioners, failed to pay weekly benefits, and acted in a high-handed and dismissive manner. He argues that this conduct caused harm and frustration, and that an award is necessary both to remedy the respondent’s conduct and to deter similar behaviour in the future.
42The respondent opposes the award request. It submits that it did not unreasonably withhold or delay any benefits and that all decisions were made in accordance with the Schedule. The respondent maintains that its conduct was reasonable throughout the claims process.
43I find that the applicant has not met the burden of proving that the respondent acted unreasonably. To make an award, there must be evidence that a benefit was unreasonably withheld or delayed. While there is disagreement between the parties regarding entitlement to benefits, disagreement alone does not amount to unreasonable conduct. The evidence shows that the respondent’s denials were based on its interpretation of the medical documentation, and there is no indication of bad faith, egregious delay, or conduct that was excessive or unyielding.
44Accordingly, the request for an award is denied.
ORDER
45For the above reasons, it is ordered that:
i. The applicant’s injuries are predominantly minor; thus, the MIG limit applies.
ii. As the applicant is subject to the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.
iii. The applicant is not entitled to a NEB.
iv. The applicant is not entitled to interest or an award.
Released: November 28, 2025
Harouna Saley Sidibé
Adjudicator