Licence Appeal Tribunal File Number: 23-001909/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:
Yu Tao Zhu
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Anil Hampole, Counsel
For the Respondent: Bhavpreet Saini, Counsel
HEARD: In Writing
OVERVIEW
1Yu Tao Zhu, the applicant, was involved in an automobile accident on January 18, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are to be decided:
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?
ii. Is the applicant entitled to $4,149.56 for psychological services, proposed by Total Recovery Rehab Centre, in a treatment plan dated May 12, 2022?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated April 12, 2022?
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;
ii. The applicant is not entitled to the treatment plans in dispute; and
iii. The applicant is not entitled to interest.
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.
7It 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 physical and psychological impairments, which are 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 they can be treated within the confines of the MIG.
The applicant did not suffer physical injuries that warrant removal from the MIG
8I find that the applicant has not provided sufficient evidence to demonstrate that her physical impairments justify treatment beyond the MIG.
9The applicant submits that she has sustained physical injuries as a result of the accident. However, the applicant does not provide any medical evidence of a physical injury as a result of the accident, and only relies on the documentary evidence from the OCF-18 in dispute by Mr. Ahmed Afiifi, physiotherapist, dated May 12, 2022. The OCF-18 references difficulty sleeping, low energy, and decreased sitting and standing tolerance.
10The respondent submits that the applicant bears the onus of proving her injuries are not minor. It is the respondent’s position that the applicant has provided no evidence of a physical injury and the onus is not satisfied. The only medical evidence submitted for review by the Tribunal are the clinical notes and records (“CNRs”) from Health One Walk-in and Medical Clinic. The applicant did not rely on or mention these CNRs so it is unclear if this is the applicant’s family physician. The respondent relies on these CNRs to highlight that after the accident, the applicant attended Health One Walk-in and Medical Clinic five times without mentioning the accident. It was not until August 10, 2022, approximately seven months after the accident, that the applicant mentioned right arm numbness and referenced the accident. The applicant was advised to change pillow and undertake conservative measures to help relax the neck.
11After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers physical injuries that would remove her from the MIG. There is no evidence, medical or otherwise in the applicant’s submissions that point to any physical injury sustained that would remove the applicant from the MIG.
12As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal from the MIG.
The applicant did not suffer psychological injuries that warrant removal from the MIG
13I find that the applicant has not provided sufficient evidence to demonstrate that her psychological impairments justify treatment beyond the MIG.
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 section 3(1) of the Schedule.
15To be removed from the MIG due to psychological impairments, the applicant must show that she 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.
16The applicant submits that she sustained a psychological impairment as a result of the accident. The applicant relies on an assessment by Dr. Mehr Pojhan, psychologist, at Somatic Assessments and Treatment Clinic dated April 12, 2022. The applicant submits that Dr. Pojhan opined that she has psychological impairments directly resulting from the accident. However, there is no report, CNRs or other evidence submitted by the applicant to the Tribunal corroborate this finding. Submissions are not evidence, therefore and without a copy of Dr. Pojhan’s assessment, I cannot make a determination on the psychologist’s findings.
17The respondent submits that the applicant did not sustain a psychological impairment as a result of the accident. The respondent relies on the absence of any reference to any accident-related psychological impairments in the CNRs from One Walk-in and Medical Clinic. Furthermore, the respondent submits that it was not provided a report or CNRs from Somatic Assessments and Treatment Clinic, and therefore is unable to comment on those submissions.
18After reviewing the submissions, I am not satisfied that the applicant presents medical evidence that she suffers from a psychological impairment that would remove her from the MIG. This is supported by the absence of any reference to a psychological impairment as a result of the accident in the CNRs from the One Walk-in and Medical Clinic, and without a copy of Dr. Pojhan’s assessment, I cannot make a determination on the psychologist’s findings. The onus is on the applicant to demonstrate a psychological impairment sustained as a result of the accident.
19I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological impairment resulting from the accident that would warrant her removal from the MIG.
20The applicant is not entitled to the disputed treatment plan because I have found that the applicant has sustained a minor injury and is subject to the MIG. As a result, an analysis of whether the treatment plan is reasonable and necessary is not required.
Award
21The applicant seeks an award under section 10 of Regulation 664. I find that no benefits have been unreasonably withheld or delayed, and therefore no award is payable.
Interest
22Given that there are no overdue payments of benefits, the applicant is not entitled to interest.
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 an award; and
iv. The applicant is not entitled to interest.
Released: January 14, 2025
Monica Ciriello
Vice-Chair