Citation: Zhang v. Travelers Insurance Company, 2025 ONLAT 22-005277/AABS

Licence Appeal Tribunal File Number: 22-005277/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:

Zhi Yu Zhang

Applicant

and

Travelers Insurance Company

Respondent

DECISION

ADJUDICATOR: Yanick Charbonneau

APPEARANCES:

For the Applicant: Wei Guo, Paralegal

For the Respondent: Stanislav Bodrov, Counsel

HEARD by way of written submissions

OVERVIEW

1Zhi Yu Zhang, the applicant, was involved in an automobile accident on February 2, 2019, 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, Travelers 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 (“MIG”)?

ii. Is the applicant entitled to a medical benefit in the amount of $1,300.00 for physiotherapy services, proposed by North Toronto Rehab in a treatment plan/OCF-18(“plan”) dated February 22, 2021?

iii. Is the applicant entitled to a medical benefit in the amount of $996.86 for physiotherapy services, proposed by North Toronto Rehab in a plan dated August 18, 2021?

iv. Is the applicant entitled to a medical benefit in the amount of $884.05 for physiotherapy services, proposed by North Toronto Rehab in a plan dated October 14, 2021?

v. Is the applicant entitled to a medical benefit in the amount of $791.12 for physiotherapy services, proposed by North Toronto Rehab in a plan dated November 10, 2021?

vi. Is the applicant entitled to a medical benefit in the amount of $1,944.80 for a psychological assessment, proposed by Dr. ZhuHui Li in a plan dated November 18, 2019?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant suffered minor injuries and is subject to the MIG limits.

4The applicant is not entitled to the disputed treatment plans. Therefore, the applicant is not entitled to interest.

PROCEDURAL ISSUES

Motion to exclude evidence that was filed late by the applicant

5The respondent’s motion to exclude evidence that was filed late by the applicant is denied.

6On November 6, 2023, the respondent filed a motion seeking to exclude the following documents from the hearing record:

i. Clinical notes and records (“CNRs”) of Glenashton Medical Clinic;

ii. Prescription of Dr. Nasir Ayub;

iii. Prescription of Dr. Tasneem;

iv. OCF-3, and.

v. North Toronto Rehab outstanding account.

7The Tribunal scheduled the motion to be heard at a written hearing.

8Rule 9.2 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission (Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the “Rules” or “Common Rules”) states:

A party to a hearing shall, at least 10 days before the hearing, or at any other time ordered by the Tribunal or undertaken by the party:

a. Disclose to the other parties the existence of every document and anything else the party intends to present as evidence at the hearing; and

b. Serve a copy of the documents, numbered consecutively, on the other parties.

9The respondent argues that on October 18, 2023, over five months after the production deadline as set out in the February 7, 2023 Case Conference Report and Order (“CCRO”) had lapsed, the applicant filed his submissions and included new evidence as set out above at paragraph 6, that had not been previously disclosed to the respondent or its counsel. The respondent submits it has been prejudiced by the violation of the time for productions prescribed in the CCRO. In its motion, the respondent requests that the documents filed by the applicant as specified above at paragraph 6, and all references to them in the applicant’s submissions, be excluded from the hearing record and not be considered by the Tribunal.

10The respondent also requests that the responding submissions of the applicant to this motion be excluded from consideration. The applicant failed to file responding submissions until November 17, 2023, in violation of the Notice of Motion issued. Further, the respondent submitted that the applicant did not offer any explanations for filing his response late.

11The applicant submits that the respondent had a chance to review and address the notes and records of Glenashton Medical Clinic. The applicant also submits that he tried his best to provide the records (documents numbers i. to iv., referenced above) with multiple visits to the clinic to try and collect the records in person. Lastly, the applicant also argues that “he did not prejudice the respondent” and that it is the applicant who will be prejudiced without all the evidence being presented to the Tribunal. With respect to document number v. the applicant indicated that this outstanding account of North Toronto Rehab had been sent to the opposing party prior to the hearing.

12It is crucial for the parties to abide by the timelines prescribed in the CCRO. I note that they have agreed to provide the records within the specific timelines discussed above. Further, the applicant did not present a motion to file these additional records referenced above.

13From the outset, the applicant filed his response to the motion to exclude the documents, one day late. Although the applicant now explains that he tried his best to provide the records with multiple visits to the clinic to collect the records in person, I find that the applicant has not provided any evidence of any in person requests, or any such requests made in writing to Glenashton Medical clinic, prior to February 13, 2023, although he had requested the CNRs of Dr. Jimmy Poon, his Family Doctor, on May 31, 2022.

14I also note the applicant’s case conference summary dated February 2, 2023, does not reference the CNRs of Glenashton Medical Clinic or that of Dr. Tasneem, under the heading “List and Summarize the contents of each key documents intended for use at the hearing”.

15There is, however, one important consideration, that is that the applicant consulted two Family Doctors, namely Dr. Poon, and Dr. Tasneem and that this is crucial medical evidence that he is relying upon. Further, the applicant bears the onus of proving their claim. The applicant also states that he has had to seek medical attention at Glenashton Medical Clinic, for he could not obtain a medical certificate from Dr. Poon, his previous Family Doctor. I recognize that the respondent was not able, per the CCRO timeline, to have its assessor review in due time the medical evidence the applicant is seeking to file. I find, nevertheless, that the prejudice of the applicant, if such evidence is excluded entirely from the records, outweighs that of the respondent. Accordingly, I will allow the late filing of such evidence, including documents i. to v., that the applicant is seeking to introduce; these shall be put to weight, given that that the applicant did not file the evidence and his submissions in due time, as prescribed by the CCRO and the Rules.

16For all the reasons set out above, the request of the respondent to exclude new evidence referenced in paragraph 6 above, is dismissed.

ANALYSIS

The applicant’s accident-related injuries are minor injuries as defined in the Schedule

17I find that the applicant’s injuries are minor and treatable within the MIG limits.

18Section 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.”

19An 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 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.

20The onus rests with the applicant to prove that his injuries fall outside of the MIG.

21The applicant submits that his injuries are outside of the MIG because he sustained a psychological impairment as a result of the accident, he was suffering from a pre-existing condition that prevented his recovery within the MIG, and he suffers from chronic pain.

The applicant’s pre-existing conditions do not prevent recovery within the MIG

22I find that the applicant did not prove on a balance of probabilities that he has a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if he is kept within the confines of the MIG.

23The applicant submits that he was suffering from a pre-existing condition that prevented his recovery within the MIG. The applicant argues that he was involved in a previous accident on August 24, 2018, and was diagnosed with whiplash and a concussion. Further, the applicant has had a diagnosis of Post Traumatic Stress Disorder (“PTSD”) resulting from the previous accident. In his view, these diagnoses remove him from the MIG. In support of his position, the applicant cites this Tribunal’s decisions in 16-004272 v. Continental Casualty Insurance Company, 2017 CanLII 63661 (ON LAT), and 17-005791 v Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT).

24Relying on decisions 17-001856 v. Travelers, 2018 CanLII 13173 (ON LAT), and H.F. v. Certas Home and Auto Insurance Company, 2019 CanLII 101447 (ON LAT), the respondent argues that the applicant did not adduce any evidence supporting that he had a pre-existing medical condition, documented by a medical health practitioner, that prevented him from recovering from the injuries he sustained in the subject accident, if subject to the constraints of the MIG.

25I agree with the respondent’s position and find that the respondent has cited the legal test correctly.

26As to the evidence of pre-existing medical conditions, Dr. Poon, the applicant’s family doctor, only records one entry dated August 9, 2021, stating that the applicant claimed he had neck pain following the accident in 2019, that x-rays were ordered and that he was referred to a physiotherapist. It is also indicated in the CNRs of Dr. Poon that a cervical spine x-ray conducted on August 10, 2021, did not reveal any abnormalities.

27Further, Dr. Poon did not document that the applicant would be prevented from recovering from any such injuries he sustained in the accident, if subject to the MIG, as required by s. 18(2) of the Schedule.

28I also do not find any definitive or conclusive diagnosis of PTSD of the applicant. What the CNRs of Glenashton Medical Clinic show, is that it was suggested to the applicant to obtain records from their previous physician, and then make an appointment for evaluation of PTSD.

29Moreover, the only other relevant entry in the CNRs of Glenashton Medical Clinic indicates that the applicant feels depressed. It is dated June 10, 2022, and references that the applicant got rear-ended in 2018, and that he has had physiotherapy, but that pain of back of neck and upper back still persists. The notes of Dr. Tasneem at Glenashton Medical Clinic also document the tenderness of back of neck, subjectively tender extension at c-spine, which are consistent with a whiplash injury, treatable under the MIG.

30With respect to the pre-existing conditions that the applicant claims he sustained in the previous August 24, 2018, accident, he also references the CNRs of Oakville Trafalfar Memorial Hospital in his submissions. The entries in these CNRs do not change my conclusions, for a diagnosis of MVA whiplash concussion was rendered. For the most part, however, the consultations of the applicant had to do with health issues unrelated to any accident, such as viral illness and cough.

31To this end, the Mckenzie Medical Rehabilitation Center CNRs also document concussion and sprain, strain for which the proposed treatments of chiropractic and physical therapy offer a prognosis stated as fair, that is consistent with MIG injuries.

32In further support of my position, the s.44 assessor Dr. Hanna also opines that the applicant’s pre-injuries “are not expected from preventing him from achieving maximum medical recovery from his accident-related injuries if subject to the limits of the MIG.”

33Accordingly, I find that the medical records provided, or the lack thereof, do not support that the applicant had a pre-existing condition that prevented him from recovering from injuries he sustained in the subject accident if he remains within the confines of the MIG. Therefore, the applicant is not removed from the MIG on this basis.

The applicant did not sustain a psychological impairment as a result of the accident

34The applicant has not proven on a balance of probabilities that he sustained any psychological impairments resulting from the accident.

35The applicant relied solely on the November 18, 2019, OCF-18 of Dr. Li, Psychologist, a psychological pre-assessment; the applicant submits that he suffered a psychological impairment resulting from the accident. In the plan, Dr. Li states that: “It is my clinical impression from today’s discussion that Mr. Zhang (the applicant ) is suffering from Somatic Symptom Disorder, a specific phobia, situational: Vehicular, and an Adjustment Disorder with Mixed Anxiety and Depressed Mood”.

36The respondent submits that any assessment reports such as that of Dr. Li must be corroborated by objective medical evidence, and that the applicant did not, in fact, report any psychological sequelae resulting from the accident to Dr. Poon.

37I agree with the respondent. The applicant did not provide objective medical evidence to substantiate his claim that he suffered a psychological impairment resulting from the subject accident.

38I find that the CNRs of Dr. Poon do not document that the applicant complained of any psychological issues related to the accident. Further, they also do not report any psychological diagnosis on the part of Dr. Poon.

39It also appears that the applicant did not follow up on the referral of Glenashton Medical Clinic as to PTSD, or any psychological symptoms.

40Moreover, the applicant also did not report any psychological issues to Dr. Hanna, Physician, the respondent’s s.44 assessor, during his assessment in August 2022. Dr. Hanna opines that “there is no objective evidence of more than sprain/strain type injury to his neck and upper back” and that “his injuries would be considered a minor injury, as defined in the Minor Injury Guideline.” Dr. Hanna adds “there was no evidence of radiculopathy, myelopathy, or neuropathy.”

41Therefore, the applicant did not substantiate his claims that he suffered a psychological impairment resulting from the accident.

42On balance, I find that the applicant did not suffer any psychological impairment resulting from the subject accident.

The applicant does not have chronic pain as a result of the accident

43I find that the applicant did not provide sufficient evidence to prove on a balance of probabilities that he has chronic pain with functional impairment as a result of the accident.

44The applicant alleges that he suffers from chronic pain, but he did not address this claim any further in his submissions. He did not direct me to any entries in the medical records of his family doctors, or any other medical professionals, that show any complaints or examinations specifically related to chronic pain with functional impairment.

45Furthermore, Dr. Poon and Dr. Tasneem at Glenashton Medical Clinic did not refer the applicant to any chronic pain specialists.

46Given that the applicant did not file any evidence to substantiate this claim of chronic pain, and that there are no entries from his Family Doctors on chronic pain, or any functional impairment from same; accordingly, I am not persuaded that the applicant has chronic pain with functional impairment.

47For these reasons, the applicant has not demonstrated that removal from the MIG is warranted.

Interest

48As the applicant is not owed payment of any treatment plans, he is not owed any interest.

ORDER

49I find that the applicant suffered minor injuries subject to the MIG.

50The applicant is not entitled to the disputed treatment plans.

51The applicant is not entitled to interest.