Licence Appeal Tribunal File Number: 24-004812/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:
Chuan Qin
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amanda Marshall
APPEARANCES:
For the Applicant:
Yan Li, Counsel
For the Respondent:
David Raposo, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Chuan Qin, the applicant was involved in an automobile accident on May 19, 2022, and sought benefits from the respondent, Co-operators General Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant was denied the treatment plans in dispute because the respondent determined that his accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
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 MIG limit?
2 Is the applicant entitled to $200.00 for chiropractic services, proposed by Prime+ Care Health Centre in a treatment plan/OCF-18 (“plan”) submitted February 3, 2023?
3Is the applicant entitled to the assessments or treatments proposed by Perfect Choice Psychological Services, as follows:
i. $2,200.00 for psychological services, in a treatment plan submitted February 13, 2023; and
ii. $3,627.97 for psychological services, in a treatment plan submitted February 27, 2023?
4Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5Is the applicant entitled to interest on any overdue payment of benefits?
3I will not be providing an outcome on issue 2 above as the applicant withdrew it in his written submissions.
RESULT
4The applicant’s injuries are minor and subject to treatment within the $3,500.00 MIG limit. He is not entitled to the benefits in dispute, interest, or an award.
ANALYSIS
Applicability of the Minor Injury Guideline
5I find the applicant has not demonstrated on a balance of probabilities that he suffers from accident-related injuries that warrants removal from the MIG.
6Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $3,500.00 if the insured person sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.”
7In order to be removed from the MIG, an insured person must 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 supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that concussion or concussion syndrome, chronic pain with functional impairment, or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.
8The applicant argues that he should be removed from the MIG based on the following:
a. An exacerbation of his pre-existing lower back pain
b. His psychological injuries
9He relies on the clinical notes and records (“CNRs”) of Dr. Man Chuen Choy, family doctor and the psychological assessment of Dr. Sharleen McDowall, psychologist.
10The respondent submits that that there is no evidence of a documented pre-existing condition that would preclude recovery within the MIG limit, nor is there evidence that the applicant suffered a psychological impairment as a result of the accident. The respondent relies on the insurer examination (“IE”) reports of Dr. Farooq Ismail, physiatrist and Dr. Mahvash Elmpak, psychologist.
Pre-existing condition
11I do not find that the applicant has a pre-existing medical condition that prevents maximal medical recovery if kept within the MIG.
12A pre-existing condition will not automatically exclude a person’s impairment from the MIG. Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. To do so, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs under the MIG.
13I find the medical evidence relied upon by the applicant falls short of meeting his onus that he suffers from a pre-existing condition that warrants removal from the MIG.
14The applicant submits that his lower back pain was exacerbated by the accident. There are two notations about the applicant’s lower back pain within the family doctor’s CNRs: one July 28, 2020, and another on January 29, 2021.
15One month after the accident on June 17, 2022, the applicant attended at his family doctor wherein the doctor records that the applicant was in a motor vehicle accident, and he has pain in his neck and waist. His doctor diagnoses him with whiplash. The applicant has not directed me to any other evidence pertaining to his back pain. Also, there no indication that his pre-existing back pain would prevent him from achieving maximum medical recovery, which is required for removal as per s. 18 (2). As such, I do not find that he has a pre-existing condition that would prevent maximal recovery if kept within the MIG.
Psychological impairment
16I find that the applicant has not demonstrated on a balance of probabilities that he has an accident-related psychological impairment to warrant removal from the MIG.
17To be removed from the MIG due to psychological impairments, the applicant must show that he has a psychological impairment and not just post-accident psychological sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
18The applicant relies on the March 2, 2023 independent psychological assessment report of Dr. McDowall, wherein he was diagnosed with Major Depressive Disorder with Anxious Distress and Specific Phobia (travel). The assessment included a clinical interview and the administration of psychological self-reporting questionnaires by Ms. Jian Su, psychotherapist. Ms. Su provided her notes of the interview and questionnaires to Dr. McDowall who reviewed the data and rendered a diagnosis.
19I am not persuaded by Dr. McDowall’s assessment for the following reasons: it took place more than eight months post-accident; a Mandarin language interpreter was not present during the assessment nor is there any notation that Ms. Su communicated with the applicant in Mandarin; the report does not clarify to what extent Dr. McDowall supervised Ms. Su; and the there is no indication that the applicant’s CNRs were reviewed. I find that had Ms. Su and/or Dr. McDowall reviewed the applicant’s medical records, they would have discovered that the applicant had not made any psychological complaints prior to the assessment.
20The family doctor’s records provided are to June 17, 2022, and these records do not corroborate the complaints that the applicant reported during the independent psychological assessment. Also, there is no information about who referred him for a psychological assessment nor why he was referred for one.
21I prefer Dr. Elmpak’s s. 44 IE report. Dr. Elmpak assessed the applicant through an interview with the assistance of a Mandarin language interpreter, administered clinical self-report inventories for emotional and pain-related assessments, and reviewed the applicant’s clinical notes and records.
22At the time of the s. 44 assessment, the applicant reported that he did have pain in his waist and shoulders following the accident, however he does not suffer this pain anymore. He mentioned that he has returned to driving and he is now self-employed, which he very much enjoys. The applicant also stated that his worst problems are related to his worries about his children, which are unrelated to the accident. In conclusion, Dr. Elmpak finds that the applicant does not present with a DSM-V-TR related mental health diagnosis.
23Therefore, I find that the applicant has not proven, on a balance of probabilities, that he suffers from a psychological impairment as a result of the accident that warrants removal from the MIG.
24As I have found the applicant is in the MIG, it is not necessary to consider if the treatment plans are reasonable and necessary.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is payable.
Section 10 Award
26The applicant also sought an award under s. 10 of O. Reg. 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. Since no benefits were unreasonably delayed or withheld by the insurer, the applicant is not entitled to an award.
CONCLUSION
27For the above reasons, I find:
i. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. Therefore, he is subject to the treatment limits of the MIG.
ii. As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans are reasonable and necessary.
iii. The applicant is not entitled to interest nor an award.
Released: December 16, 2025
__________________________
Amanda Marshall
Adjudicator