Licence Appeal Tribunal File Number: 24-000878/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:
Ting Yu Zhang
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Greg Witt
APPEARANCES:
For the Applicant: Anil Hampole, Counsel
For the Respondent: Sonya Reid, Counsel
HEARD: In Writing
OVERVIEW
1Ting Yu Zhang, the applicant, was involved in an automobile accident on November 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 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $3,774.50 for physiotherapy, proposed by Uheal Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted August 28, 2023?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a plan submitted June 23?
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
3I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
i. The applicant is not entitled to the treatments plan in dispute.
ii. The applicant is not entitled to interest; and
iii. The applicant is not entitled to an award under s. 10 of Reg 664.
ANALYSIS
Applicability of the Minor Injury Guideline (“MIG”)
4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
7The parties agreed that the MIG limits have been exhausted.
8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits she suffers from non-minor physical injuries, a psychological impairment, which is not included in the definition of a minor injury. The respondent submits that the applicant has failed to establish that her injuries are not predominately minor and that the injuries can be treated within the confines of the MIG.
Chronic Pain/Physical Impairments
9The applicant claims she suffers from physical impairments resulting from the accident. The applicant relies on an OCF-18 dated August 28, 2023, where Mr. Ahmed Afifi, Physiotherapist, noted the applicant had some limitations due to pain, weakness and stiffness and that as a result the applicant has some functional limitation at home and at work. Further noted were some limitations due to pain, and weakness and stiffness mainly at the thoracic spine, and bilateral upper fibers of the trapezius.
10The respondent claims the applicant’s injuries are soft tissue and are minor. The respondent submits that the applicant did not seek medical attention on the date of loss. The respondent further relies on the clinical notes and records (“CNR”) from Bridlewood Medical Walk-in Clinic which between June 2023 and December 2023 the applicant attended on four occasions and there are no mentions of the accident or accident-related symptoms.
11I find that the applicant did not meet the onus required to prove non-minor physical impairments or chronic pain. Despite general references within the applicant’s submissions with respect to limitations, the applicant fails to provide any submissions specifically related to chronic pain or a chronic pain diagnosis, nor has the applicant referred to or submitted evidence from a chronic pain specialist. Submissions on physical limitations are not the same as a chronic diagnosis, and further medical evidence must be provided in support of such submissions.
12The medical evidence does not establish that the applicant suffered from chronic pain or a functional impairment as a result of the accident. I am persuaded by the notes of Mr. Afifi dated August 28, 2023 that the applicant is still making good improvements. Further, the date of the accident was November 23, 2022, and the first date the applicant saw a doctor was June 28, 2023, which means there was a gap of 217 days between the accident and the first time she saw a medical professional. During that appointment, she did not report the accident or any physical injuries; instead she reported allergy symptoms. The applicant also makes no mention of the accident or pain related to the accident to Dr. Andrew Thongsack, a walk-in clinic doctor, or other providers at Bridlewood Walk-In Clinic, when the applicant visited three times following the accident. The applicant does not direct me to any CNR entry where she reported accident-related symptoms or pain to her family doctor.
13In summary, I find that the applicant does not suffer from functional impairment as a result of accident-related pain. She has not established chronic pain meriting removal from the MIG.
Psychological Impairments
14An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.
15In order to be removed from the MIG due to psychological impairments, the applicant must show that she has a psychological impairment and not post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments. I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.
16The applicant claims she suffers from psychological impairments resulting from the accident. The applicant relies on the evidence of Dr. Mehrdad Pojhan, Psychologist who in a pre-screening report summarized in an OCF-18 dated June 28, 2023, claims the applicant has feelings of depression, frustration, irritation, worry and stress and that the applicant reported feelings of hopelessness and symptoms of depression and anxiety since the accident that has caused the applicant to reduce social interactions and recreational activities. The report further recommends the applicant undergo a psychological assessment.
17The respondent claims the applicant’s injuries are minor as she has not sought treatment or reported any symptoms, but for the visit to Dr. Pojhan in August 2023, several months following the accident. The respondent relies on the CNRs from Bridlewood Medical Walk-in Clinic which between June 2023 and December 2023 the applicant attended on four occasions and there are no mentions of the accident, accident-related symptoms, or psychological complaints. The respondent further submits that the applicant solely relies on the single pre-screen report from Dr. Pojhan which reports minor symptoms and submits that this pre-screen report is insufficient if not corroborated by additional medical evidence to prove the applicant’s accident related injuries are predominately minor.
18After reviewing the evidence, I find the applicant has not met her evidentiary burden to establish that she suffers from a psychological impairment as a result of the accident that would remove her from the MIG. In the OCF-18 dated June 28, 2023, Dr. Pojhan notes in a pre-screening report that as a result of the accident, the applicant has not visited any emergency room, walk-in clinics, and family physicians and that she has not done any medical assessments and is not on any medications. Further, the date of the accident was November 23, 2022, and the first date the applicant saw a doctor was June 28, 2023, which means there was a gap of 217 days between the accident and the first time she saw a medical professional. During that appointment, she did not report the accident or mention any psychological symptoms.
19The onus is on the applicant, and for the above reasons, the applicant has not met her onus to prove on a balance of probabilities that her alleged, accident-related psychological impairments warrant treatment beyond the MIG.
20The applicant is not entitled to the disputed treatment plan because I find that the applicant has sustained a minor injury and is subject to the MIG, and the parties agreed the MIG has been exhausted. As a result, an analysis of whether the treatment plans are reasonable and necessary is not required.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. State whether interest applies.
Award
22The 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. As no benefits have been unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
23The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to interest; and
iv. The applicant is not entitled to an award under s. 10 of Reg 664.
Released: December 9, 2025
Greg Witt
Adjudicator