Licence Appeal Tribunal File Number: 22-008206/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 Ting Li
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kieffer Norton
APPEARANCES:
For the Applicant
Yu Denise Jiang, Paralegal
For the Respondent:
Leah Burlock, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ting Ting Li, the applicant, was involved in an automobile accident on September 11, 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, Insurer, 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 entitled to treatment outside the Minor Injury Guideline?
ii. Is the applicant entitled to the amount of $202.22 ($1300.00 less $1097.78 approved) for physiotherapy services set out in the OCF-18 dated June 8, 2021, from total recovery?
iii. Is the applicant entitled to the amount of $4549.56 for physiotherapy services set out in the OCF-18 dated December 13, 2021, from total recovery?
iv. Is the applicant entitled to the amount of $2,200.00 for a psychological assessment set out in the OCF-18 dated November 3, 2020, from somatic assessments?
v. Is the applicant entitled to a special award under Ontario regulation 664?
vi. Is the applicant entitled to receive 1% compound interest as per section 51?
RESULT
3I find that the applicant has not met their onus of proving that their injuries are not predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit.
4As the applicant remains within the MIG, and there is no entitlement to the benefits at issue beyond the MIG limit.
5As no benefits were unreasonably withheld or delayed, the respondent is not liable to pay a s. 10 award.
6As there are no overdue benefits, no interest payable.
ANALYSIS
The Applicant is not removed from the MIG
7The onus is on the Applicant to demonstrate that they sustained an injury that is outside the minor injury guideline, outlined in section 3 of the Schedule.
8The MIG establishes a treatment framework in section 18(1) of the Schedule available to injured person who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
9An injured person 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 injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury 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. However, as stated, the burden of proof lies with the applicant.
The applicant has not established that their injuries warrant removal from the MIG.
10The applicant submits that as a result of the accident they should be removed from the minor injury guideline. The applicant submits that they should be removed from the MIG due to psychological conditions and chronic pain.
11The respondent submits that the applicant’s accident-related injuries are soft tissue in nature, as diagnosed by the applicant’s family physicians, Dr. Ho and Dr. Fung, as well as the insurer’s physician expert Dr. Marchuk.
Psychological conditions.
12The applicant submits that in the assessment of Dr. Sharleen McDowall and in the assessment of Dr. Ameena Syed the applicant included complaints of nightmares, driving avoidance and irritability resulting from the subject accident.
13In an OCF-18 dated November 13, 2020, Dr. Sharleen McDowall opines that the applicant’s psychological impairment is acute and directly attributable to the motor vehicle accident. The opinion given by Dr. McDowall gives little corroborating evidence to support this opinion. According to the clinical notes and records on September 24, 2020, the applicant attended their family physician and did not make any complaints regarding their psychological status. The applicant also met with Dr. Ho immediately after the accident, but Dr. Ho’s clinical notes and records did not provide any notes stating that the applicant had suffered a psychological impairment as a result of the accident.
14The respondent’s position is that the applicant is not suffering from a psychological impairment as a result of the accident. They provide two s.44 reports to support their position.
15Dr. Amena Syed who conducted an s.44 insurers examination of the applicant on December 30, 2020, and January 29, 2021, opined that the degree of distress outlined by the applicant is greater than what they may be experiencing, and that the examination found no objective evidence to substantiate the applicant’s subjective self report of psychological impairment as result of the accident.
16The applicant attended a subsequent medical assessment on November 23, 2021. Again Dr. Syed was the IE examiner and found no objective evidence of psychological impairment, further Dr. Syed opine the applicant was not suffering any inability to perform the tasks of their pre-accident employment.
17With respect to the psychological impairment as a result of the motor vehicle accident I agree with the respondent’s position based on the clinical notes and records of the applicant physicians stated above. I find that the clinical notes and records of the applicant’s physicians do not corroborate the opinion of Dr. McDowall’s OCF-18. I am not convinced on a balance of probabilities that the applicant has sustained a psychological impairment as a result of the accident as I have not been directed to any evidence that would support such diagnosis aside from an OCF-18 which is insufficient by itself in making a determination of psychological impairment.
18Accordingly, I do not find any supporting evidence that compels me to believe that the applicant has suffered a psychological impairment as a result of the accident.
Chronic Pain
19While the applicant does not specifically raise chronic pain as grounds for removal from the MIG, their submissions seem to indicate that they are suffering from chronic pain as a result of the motor vehicle accident.
20The respondent submits that the applicant’s accident-related injuries are soft tissue in nature and do not constitute chronic pain.
21I am inclined to agree with the respondent that the applicant has not proven that they are suffering chronic pain.
22The applicant’s submissions relied on the clinical notes and records of Dr. Fung, the OCF-18 of Dr. McDowall and the assessments of Dr. Syed. Dr. Fung’s records do substantiate that soft tissue injury was inflicted as a result of the accident. However, the applicant has not made any submissions with regards to the level of functional impairment or any impairment that would be sufficient for MIG removal. It would have been helpful to the tribunal if the applicant had provided dates of clinical notes and records or specific impairments that would have supported a chronic pain determination.
23I note that there are no further clinical records or diagnosis from Dr. Fung or any other family physician of chronic pain being present in the applicant.
24Therefore, for the reasons stated above I am unable to remove the applicant from the MIG on the basis of a chronic pain determination.
25As the applicant remains within the MIG and its $3,500.00 limit on treatment, she is not entitled to the OCF-18’s in dispute as it is not reasonable and necessary.
Interest and Award
26Given that no benefits are overdue, the applicant is not entitled to interest or an award.
ORDER
27For the reasons outlined above, I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. The OCF-18s in dispute are not payable.
iii. As no benefits were unreasonably withheld or delayed, the respondent is not liable to pay a section 10; and
iv. As no benefits are overdue, no interest is owing.
v. The application is dismissed.
Released: March 24, 2025
__________________________
Kieffer Norton
Adjudicator