Licence Appeal Tribunal File Number: 24-001055/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:
Samson KS Chan
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Robbie Brar, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Samson KS Chan, the applicant, was involved in an automobile accident on July 16, 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, BelairDirect 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 $4,069.56 for physiotherapy services proposed by Total Recovery Rehab in a treatment plan/OCF-18 dated January 13, 2023?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessments & Treatment Clinic in a plan dated March 20, 2023?
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 demonstrated that removal from the MIG is warranted based on a psychological condition.
4The applicant is not entitled to the treatment plan for physiotherapy services.
5The applicant is entitled to the treatment plan for a psychological assessment.
6The respondent is not liable to pay an award.
7Interest is payable on any overdue benefits pursuant to s. 51 of the Schedule.
ANALYSIS
Applicability of the MIG
8Section 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.”
9An 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.
10The applicant submits that he should be removed from the MIG due to a psychological impairment and chronic pain resulting from the accident.
11The parties agree that the MIG limit has been exhausted.
The applicant has a psychological condition as a result of the accident
12The applicant has met his onus of demonstrating on a balance of probabilities that he has a psychological condition because of the accident.
13The applicant relies on the following evidence in support of his position:
i. A treatment plan dated March 20, 2023 for a proposed psychological assessment, wherein Dr. Sharleen McDowall, psychologist, noted that the applicant was experiencing many symptoms commonly found in individuals suffering from post-accident psychological impairment. During a pre-screening interview on March 14, 2023, the applicant reported a deterioration in his quality of sleep, nightmares related and unrelated to the accident, decreased memory, anxiety, fear, fatigue, irritability, depression, frustration, avoidance of driving and traveling in vehicles unless necessary, and being less social.
ii. A letter from Dr. S.W. Joseph Wong, physiatry consultant, dated May 16, 2023, indicating that Dr. Wong suggested the applicant continue to take Paxil to control his anxiety problem.
iii. A letter from Dr. Wong dated June 19, 2023, indicating that the applicant’s stress had become worse.
iv. A prescription summary indicating that the applicant had been prescribed Paroxetine, Duloxetine, Clonazepam and Quetiapine, which all address mood disorders and psychological symptoms. The applicant confirmed during his s. 44 Insurer Examination (“IE”) assessment with Dr. Shafik Dharamshi, physician, on June 15, 2023, that he was not taking these medications prior to the accident.
14Although in his submissions the applicant refers to Dr. Wong as his family physician, I note that in Dr. Wong’s letters, his title is that of a “physiatry consultant” and Dr. Wong thanks Dr. David Lam for the consultations. I interpret this to mean that Dr. Lam referred the applicant to Dr. Wong, and Dr. Wong is not the applicant’s family physician. The applicant does not refer to any clinical notes and records (“CNRs”) from Dr. Lam. Further, in the first of Dr. Wong’s letters, dated October 6, 2022, Dr. Wong indicates that the applicant complained of accident-related injuries. In the circumstances, I find that the applicant saw Dr. Wong to treat his accident-related injuries beginning on October 6, 2022.
15The applicant also refers to the IE Psychological Evaluation Report dated June 18, 2024, prepared by Dr. Douglas Saunders, psychologist, submitting that it should be given little to no weight. The applicant submits that, during the assessment, he complained of numerous psychological symptoms since the accident including sleep disturbance, nightmares, depressed mood, fearfulness, decreased concentration and memory, and passenger anxiety, which correlate with the complaints made to Dr. McDowall over one year prior. Further, the applicant points out that, based on his “above-average level of stress” results during the MMPI-3 test, Dr. Saunders stated that the applicant is likely to have significant anxiety and significant anxiety-related problems. The applicant submits that despite all of this, Dr. Saunders concluded that the applicant does not meet the criteria for an accident-related psychological impairment, without providing any explanation for his conclusion.
16Based on his assessment, Dr. Saunders concluded that from a psychological perspective, the applicant’s accident-related condition is notable for minimal elevations that do not meet clinical criteria for impairment. The respondent submits that the applicant attempts to isolate Dr. Saunders’ statements in his IE report, implying that a MIG removal on a psychological basis is warranted. However, the respondent points out that the applicant did not reference segments such as his returning to more than pre-accident hours of work, his having resumed shared duties at home and his reporting being independent in all self-care. In other words, the respondent argues, Dr. Saunders concluded that behavioural symptoms and actions can affect an overall diagnosis, despite emotional symptoms. The respondent further submits that the “minimal elevations” cited in Dr. Saunders’ report speak to the rationale for his opinion, and that this diagnosis was evidenced by the medical documentation and assessment itself.
17I find that a psychological diagnosis is not required to be removed from the MIG. Rather, the applicant may be removed from the MIG based on an accident-related psychological condition. Further, I find that functional impairment, in addition to a psychological condition, is not necessary for the applicant to be removed from the MIG. Accordingly, the applicant’s abilities to work more than he did prior to the accident, to assist with housekeeping duties, and to care for himself, are not determinative of whether he should be removed from the MIG based on a psychological condition.
18I also note that prescription medications for the applicant’s psychological symptoms first appear on his prescription summary on October 6, 2022, and that there are no such prescriptions listed on his prescription summary in the year preceding the accident. Further, the applicant reported to Dr. McDowall on March 14, 2023, and to Dr. Saunders on June 5, 2024, that he had no psychological difficulties prior to the accident. From this evidence, I find that the applicant did not have a psychological impairment requiring medication prior to the accident.
19I further find that, although Dr. Saunders did not diagnose the applicant with a psychological impairment, he did make the following findings based on the results of psychometric testing, the first two of which he determined were valid in accordance with validity measures:
i. The applicant is likely to have significant anxiety and significant anxiety-related problems (MMPI-3).
ii. He reports problems with elevated or variable mood, and experiencing a degree of anxiety and stress, although Dr. Saunders indicates this degree of worry and sensitivity was within normal range (Personality Assessment Inventory).
iii. Test results on the Multi-Dimensional Anxiety Questionnaire indicated elevations consistent with significant anxiety.
20I have considered the applicant’s reporting of accident-related anxiety to Dr. Wong, to Dr. McDowall and to Dr. Douglas, the results on the applicant’s psychometric testing, and the fact that he began taking prescription medications for psychological symptoms on October 6, 2022. Based on the evidence before me, I find, on a balance of probabilities, that the applicant has met his onus of proving that he has a psychological condition because of the accident.
21The applicant also raised the argument that he suffered from chronic pain because of the accident. Due to my conclusion about his psychological condition, it is not necessary to address this argument.
22To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant is not entitled to the treatment plan for physiotherapy services
23The applicant has not met his onus of proving on a balance of probabilities that the plan for physiotherapy services is reasonable and necessary.
24The plan was proposed by Ahmed Afifi, physiotherapist. The plan proposes a reassessment, sixteen sessions each of physiotherapy, active therapy, and massage therapy, provider travel time to treatment, and a progress report. The goals of the plan are pain reduction, increased range of motion, increase in strength, to return to activities of normal living, and to return to pre-accident work activities.
25The applicant refers to the following evidence of his accident-related physical injuries that is contained in Dr. Wong’s CNRs:
i. On October 6, 2022, he reported pain in the right-side arm and leg since the accident. After a physical examination, Dr. Wong diagnosed right-side myofascial strain and recommended medication.
ii. On May 16, 2023, the applicant reported that he had pain in the neck, back and wrist. Dr. Wong diagnosed “a chronic pain problem,” recommended the continued use of medication, and referred the applicant to a rheumatologist.
iii. On June 19, 2023, the applicant reported that the pain had become worse. Dr. Wong recommended taking medications.
26The applicant submits that it is a well-established principle that pain relief is a legitimate goal of treatment.
27The applicant further submits that Dr. Wong’s CNRs reveal that the applicant’s pain symptoms began after the accident and that the pain improved with physiotherapy. Upon a review of Dr. Wong’s CNRs, I note that the reference to physiotherapy was made in a letter dated January 26, 2023, to Dr. Wong from Dr. Debra Dye-Torrington, rheumatologist, indicating that the applicant reported he had thumb pain, and it improved with physiotherapy.
28The applicant also points out that during the physical examination completed by Dr. Dharamshi on June 15, 2023, the applicant displayed tenderness and pain in his right arm and shoulder as well as decreased range of motion in his right wrist and hand.
29The applicant submits that the treatment plan for physiotherapy services is both reasonable and necessary. The applicant further submits that with physiotherapy services, the goals set out on the treatment plan would be expected to be met to a reasonable degree and the costs of such services is proportionate to the degree of success that these services would have.
30I find that the applicant does not direct me to corroborating evidence of any of his treating health practitioners, other than the author of the treatment plan, recommending the need for the services proposed in the plan, i.e., physiotherapy, active therapy, and massage therapy. Further, I find that the applicant does not make submissions or direct me to evidence with respect to how the goals of the treatment plan would be met to a reasonable degree, and how the overall costs of achieving them are reasonable.
31For these reasons, I find that the applicant has not met his onus of demonstrating on a balance of probabilities that the plan for physiotherapy services is reasonable and necessary.
Assessments
32The purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
The applicant is entitled to $2,200.00 for a psychological assessment
33The applicant has met his onus to prove on a balance of probabilities that the plan for a psychological assessment is reasonable and necessary.
34The applicant submits that he should be entitled to a psychological assessment because he has an accident-related psychological impairment.
35The respondent relies on Dr. Saunders’ opinion that the treatment plan is not reasonable and necessary because the applicant’s accident-related condition is notable for minimal elevations that do not meet the clinical criteria for impairment, which is inconsistent with the injuries listed in the treatment plan.
36Considering that the applicant’s psychometric testing results indicated significant anxiety, the applicant’s reporting of accident-related anxiety to Dr. Wong, to Dr. McDowall and to Dr. Douglas, and the fact that the applicant began taking prescription medications for psychological symptoms after the accident, I find that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
37For these reasons, I find that the applicant has met his onus to demonstrate on a balance of probabilities that the plan for a psychological assessment is reasonable and necessary.
Interest
38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
39The 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.
40The applicant submits that an award is warranted for the following reasons: the applicant is vulnerable and has sustained serious impairments because of the accident; the Tribunal must set precedents “to ensure deterrence to Insurers”; and the respondent acted in a highhanded manner.
41It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Although the applicant submits that the respondent acted “in a highhanded manner,” he does not direct me to any examples of such conduct, nor do I find any. For these reasons, I find that there is no basis for ordering an award under Reg. 664.
ORDER
42For the above reasons, I find:
i. The applicant has demonstrated that removal from the MIG is warranted based on a psychological condition.
ii. The applicant is not entitled to the treatment plan for physiotherapy services.
iii. The applicant is entitled to the treatment plan for a psychological assessment.
iv. Interest is payable on any overdue benefits pursuant to s. 51 of the Schedule.
v. The respondent is not liable to pay an award.
Released: December 4, 2025
Laura Goulet
Adjudicator