Li v. Allstate Insurance Company of Canada, 2025 CanLII 1838

Citation: Li v. Allstate Insurance Company of Canada, 2025 ONLAT 22-008569/AABS

Licence Appeal Tribunal File Number: 22-008569/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:

Wei Hao Li Applicant

and

Allstate Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Anita Sol-Edeigba

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Oliver Gorman-Asal, Counsel

HEARD: By way of written submissions

OVERVIEW

1Wei Hao Li, the applicant, was involved in an automobile accident on July 9, 2020, 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, Allstate Insurance Company of Canada, 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. Is 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)?

ii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessment and Treatment Clinics in a treatment plan (OCF-18) dated November 13, 2020?

iii. Is the applicant entitled to $73.60 for medication submitted on an Expense Claim form (OCF-6) dated July 5, 2021?

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

v. Is the respondent liable to pay an award under s.10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that the applicant’s injuries are predominantly minor as defined by the Schedule and therefore, the applicant is not removed from the MIG. As the parties agree that the MIG limits have been exhausted, the applicant is not entitled to the treatment plan or to the medication. The applicant is also not entitled to interest or an award.

ANALYSIS

The Minor Injury Guideline

4The applicant has failed to prove on a balance of probabilities that his. injuries are outside the MIG.

5I find that the applicant has not provided compelling medical evidence that he sustained physical injuries that require treatment outside the MIG.

6Section 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.”

7An 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. In all cases, the burden of proof lies with the applicant.

8In this matter, the applicant submitted that he should be removed from the MIG because he suffers from chronic pain and sustained a psychological condition as a result of the accident.

9I find that the applicant has failed to prove on a balance of probabilities that his injuries are outside of the MIG, as a result of chronic pain with functional impairment or a psychological impairment.

Chronic pain

10I find that the applicant has not provided sufficient evidence that he should be removed from the MIG on the basis of chronic pain with functional limitations.

11On July 9, 2020, the day the applicant was involved in a motor vehicle collision, the applicant attended his family physician, Dr. Bryon Fong, for a health examination. The applicant’s head and neck were examined and there were no headache, dizziness, and neurological symptoms, he applicant as in generally good health at that time.

12The applicant attended Somatic Assessments and Treatment Clinic on November 4, 2020, and asserts that he continues to experience persistent pain in his neck (especially on his right side), back along with intermittent pain in his right thumb.

13In a report dated August 23, 2022, the applicant was referred to Dr. Marchie, an orthopaedic surgeon who identified a left knee medial meniscus tear as a result of a Baker’s cyst. The applicant further submitted an earlier ultrasound exam of his left knee joint dated January 26, 2022. The ultrasound findings stated that the quadriceps and patella’s tendons collaterals ligaments and visualized menisci appear intact and unremarkable. However, given that two differing diagnoses were made, I find the ultrasound results inconclusive. Consequently, I am unable to find that the applicant suffers from chronic pain.

14The applicant also underwent a Section 44 physiatry assessment with Dr. Sonic on December 15, 2020, Dr. Sonic reported improvement in the applicant’s accident-related pain symptoms and noted that the applicant had resumed working as a contractor. The respondent argues that the applicant should not be removed from the MIG on the grounds of chronic pain, as there is no evidence of functional impairment. Furthermore, the respondent highlights that the applicant has returned to work as a contractor and resumed driving.

15The applicant submits that he should be removed from the MIG on the basis that he suffers from chronic headaches. No medical evidence has been provided from other medical professional with regards to the daily headaches. I find that the chronic pain, daily headaches, and left knee joint have not caused any functional limitation and disability to the applicant. There has been no significant disruption or disablement of the applicant’s activities of daily living. As the applicant did not provide the Clinical Notes and Records(‘CNR’) to substantiate this finding, I place low weight on these findings.

Psychological condition

16I find that there Is lack of compelling evidence to support the presence of psychological impairment that would take the applicant out of the MIG.

17The applicant submitted that they should be removed from the MIG on the basis of a psychological condition. To support this position, the applicant relied on the OCF-18 dated November 4, 2020 of Dr. Sharleen McDowall, psychologist, from Somatic Assessments and Treatment Clinic, which notes the following accident-related injuries, emotionally distressed and sleep disorder, anxiety disorders and flashback, pessimism, hypervigilance, hyperarousal, feelings of helplessness, and powerlessness. The applicant reported that these injuries have caused him issues with feelings of helplessness and powerlessness, which affects his day-to day life and activities.

18Dr. McDowall’s report of November 4, 2020, indicate that given the applicant’s acute ongoing pain and psychological impairment, there is need for the applicant to undergo full psychological including psychometric testing and psychological treatment needs.

19The respondent submits that the findings of Dr. McDowall report should not be given weight due to the following factors:

i. The section of the report designated for Dr. McDowall’s signature was left unsigned, and does not include an acknowledgement or an expert duty form;

ii. It appears that the report is a Pre-Screen report and not a complete report;

iii. It is not clear what documentation was relied on to prepare the report; the interview was purportedly conducted by Yvonne Ma, the psychotherapist, on November 4, 2020, and the assessment supervised by Dr. McDowall, the psychologist. The body of the report does not show who authored the report and who made what finding or conclusion; and the pre-screen report is inconsistent with the facts. The pre-screen report indicates that the applicant worked as an evening shift security for a casino, whereas the applicant’s OCF-3 dated July 15, 2020, and the Insurer’s Examination report by Dr. Rajka Sonic, physiatrist, indicates that the applicant was working in construction on December 15, 2020.

20I find that the applicant has not met his burden of proof to establish on a balance of probabilities that he suffered a psychological impairment as a result of the accident. I agree with the respondent’s position that the Pre-Screen report of Dr. McDowall did not attribute the applicant psychological issues to the accident, but instead recorded the applicant self reporting accounts of symptom. I see these more as subjective complaints, so they don’t carry as much weight in my assessment.

21Based on the Pre -Screen report submitted by Dr McDowall, I find that the applicant has not demonstrated evidence of psychological impairment and has not provided supporting documentation` from his family physician.

22The clinical notes of the applicant’s family physician, Dr Bryan Fong, dated October 5, 2020, the applicant revisited Dr Fong and reported experiencing psychological symptoms. However, during a follow-up appointment on June 22, 2022, Dr Fong stated that the applicant had no physical or psychological issues and was generally well with no concerns. I do not accept Dr Fong’s initial diagnosis and assign it less weight because I find that Dr Fong altered his opinion in a subsequent clinical note which undermines the credibility of the initial diagnosis. Therefore, I conclude that the applicant did not suffer a psychological condition as a result of his accident.

23I must now consider whether the applicant is entitled to the treatment plan. Section 14 and 15 of the Schedule provides that the Insurer shall pay medical benefits to, or on behalf, of an applicant so long as the applicant sustains an impairment as a result of an accident, and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

24As I have found that the applicant is not removed from the MIG, and the parties agree that the MIG limits have been exhausted, it is not necessary for me to consider whether the treatment and assessment plan in dispute and the medication expense are reasonable and necessary. The applicant is not entitled to either.

Interest and Award

25The applicant sought interest and an award under s. 10 of Reg 664

26Under s.10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

27As I have found that there that there are no benefits owing, the applicant is not entitled to interest or an award.

ORDER

28I find that:

i. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

ii. Is not entitled to the treatment plan claimed in the application

iii. The applicant is not entitled to the request for payment of the prescription drugs

iv. The applicant is not entitled to interest or an award; and

v. The application is dismissed.