Citation: Liu v. The Co-operators General Insurance Company, 2025 ONLAT 23-013606/AABS

Licence Appeal Tribunal File Number: 23-013606/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:

Wei Liu

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Patrick Molloy

APPEARANCES:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Laura Emmett, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Wei Liu, the applicant, was involved in an automobile accident on February 23, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

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 limit? Note: The parties agree the MIG limits have been exhausted.
2. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from December 8, 2022, to ongoing?
3. Is the applicant entitled to $200.00 for chiropractic services proposed by Uheal Rehab in a treatment plan/OCF-18 (“plan”) dated on or before November 9, 2022?
4. Is the applicant entitled to $4,217.20 for chiropractic services proposed by Uheal Rehab in a treatment plan dated on or before November 24, 2022?
5. Is the applicant entitled to $2,200.00 for psychological assessment proposed by Somatic Assessments in a treatment plan dated on or before May 6, 2022?
6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that the applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

4The applicant is not entitled to the treatment and assessment plans in dispute.

5The applicant is not entitled to an Income Replacement Benefit.

6The applicant is not entitled to interest or an award.

ANALYSIS

Minor Injury Guideline (MIG)

7Section 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.”

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 applicant asserts that removal from the MIG is warranted on the basis of psychological injuries sustained in the accident. For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.

Psychological Injuries

10I find no compelling evidence demonstrating that the applicant suffers from a psychological injury as a result of the accident.

11The applicant submits that a pre-screening psychological interview by Ms. Mandy Fang, Social worker, and supervised by Dr. McDowell (Psychologist) on March 7, 2022, concluded that he was suffering from driving anxiety and emotional problems, sleep disorder and physical pain as a result of the accident.

12The applicant submits they did not recover in the usual healing time, and they have not reached their pre-accident state, justifying removal from the MIG.

13The respondent submits based on the section 44 examination of Dr. Zabieliauskas, Physiatrist, the applicant sustained soft tissue injuries as a result of the accident and the applicant was safe to resume his pre accident employment, without any physical or functional limitations.

14The respondent submits there is no formal psychological diagnosis of psychological impairment.

15In his report dated November 9, 2022, Dr. Tavares, Chiropractor, prescribed a treatment plan to alleviate pain and also noted Treatment under the minor in jury Guideline has already been provided and additional treatment goods and or services are required within the $3,500.00.

16Dr. Yeung, the family physician, noted in February 2024 that the applicant’s headaches may be a result of high blood pressure following an examination two years after the accident. No reference to any psychological difficulties were noted.

17I am not persuaded by the applicant’s submissions or the limited evidence before the tribunal. I find the medical evidence before me does not support a finding that the applicant has a psychological impairment that warrants removal from the MIG because while the pre-screen report indicates that the applicant was suffering from accident-related psychological symptoms, that is not corroborated by the preponderance of evidence before me and therefore I put little weight on the opinions of Dr. McDowall and Ms. Fang. The pre-screen report relies entirely on the applicant’s self reporting with little clinical or medical evidence provided in support. There is no conclusive psychological testing or diagnosis provided by the applicant.

18Accordingly, I find that the applicant has not demonstrated that he suffers from a psychological injury as a result of the accident that warrants removal from the MIG.

Income Replacement Benefit

19I find the applicant is not entitled to an Income replacement benefit.

20To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test

21To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

22The 2022 CRA Tax assessment shows a net income of $55,376.00 which indicates the applicant was employed during this period. Dr. Zabielauskas in a report dated December 8, 2022.concluded the applicant did not suffer a substantial inability to perform his essential tasks of his pre-accident employment as a real estate agent. The applicant has not provided clear information or evidence which would prevent him from performing the necessary tasks involved in his employment as a real estate.

23The respondent submitted an OCF 3 alone is insufficient to meet the applicant’s burden of proof, The Respondent also submits that the applicant has not provided or demonstrated that the applicant meets the pre or post 104-week test for entitlement to an IRB, as noted above Dr. Zabielauskas report did not support the applicant’s request for the IRB benefit.

24On a balance of probabilities, I find the evidence submitted has not met the applicant’s burden of proof. The report of Dr Zabieliauskas (Physiatrist) dated December 8, 2022, concludes the applicant did not suffer a substantial inability to perform the essentials tasks of his pre-accident employment as a real estate agent. The applicant has not provided specific medical reasons why the applicant would be unable to perform the essential tasks of his pre-accident employment. The respondent also submitted the applicant failed to comply with section 33.6 on June 23, 2022, by not providing income related documents and on December 8, 2022, by not providing OHIP records.

25The applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury. The treatment plans in dispute propose goods and services that fall outside the MIG. As a result, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having concluded that no benefits are payable, it follows that no payments are overdue, and no interest is payable.

Award

27The 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. I find that the applicant is not entitled to an award as the respondent has not unreasonably withheld or delayed payment.

Order

i. The applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

ii. The applicant is not entitled to the treatment or assessment plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit. The applicant is only entitled to treatment up to the MIG limits.

iii. The applicant is not entitled to an IRB.

iv. The applicant is not entitled to interest or an award.