Zhang v. Certas Home and Auto Insurance Company, 2025 CanLII 31147

Citation: Zhang v. Certas Home and Auto Insurance Company, 2025 ONLAT 23-004967/AABS

Licence Appeal Tribunal File Number: 23-004967/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:

Lan Zhang

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

VICE-CHAIR: Neil Levine

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Nathan Fabiano, Counsel

HEARD: In Writing

OVERVIEW

1Lan Zhang, the applicant, was involved in an automobile accident on May 2, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Certas Home and Auto 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 (“MIG”) limit?

ii. Is the applicant entitled to the assessments proposed by Somatic Assessments & Treatment Clinic, as follows:

1. $2,200.00 for a psychological assessment, in an OCF-18/ treatment plan (“treatment plan”) dated April 19, 2021; and

2. $14,750.81 for a CAT assessment, in a treatment plan dated November 15, 2022?

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

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

RESULT

3Based on the evidence before me and for the reasons that follow, I find that:

i. The applicant’s injuries are predominantly minor and therefore she should not be removed from the MIG.

ii. As the applicant is in the MIG, it is not necessary to determine if the treatment plans are reasonable and necessary.

iii. The applicant is not entitled to an award.

iv. The applicant is not entitled to interest.

4Accordingly, I dismiss this application.

ANALYSIS

Minor Injury Guideline: Chronic Pain

5The applicant is not removed from the Minor Injury Guideline limit based on chronic pain with functional impairment.

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 in accordance with the MIG. Section 3(1) of the Schedule 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule, or under s. 18(2), if they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if the insured person is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition have been found to also exceed the definition of minor injury.

7The burden is on the applicant to show on a balance of probabilities that her injuries fall outside of the MIG.

8Based on the evidence provided, the applicant has not proven on a balance of probabilities that she should be removed from the Minor Injury Guideline.

Evidence

9The applicant claims that she should be removed from the MIG limit as a result of chronic pain with functional impairment and psychological impairment.

10The applicant relies on clinical notes and records from Dr. Alan Yin, Dr. Renzhu Tao and Dr. Ishaan Arora. The applicant also relies on an OCF-18 from psychologist Dr. Ming Che Yeh.

11The respondent relies on s. 44 examinations and reports from Dr. Robert J. Hines, a psychiatrist and Dr. Raymond Zabieliauskas, a physiatrist.

Chronic Pain

12The applicant is not removed from the Minor Injury Guideline based on chronic pain with functional impairment.

13The applicant submits that clinical notes and records from visits with psychologist Dr. Sharleen McDowall say she suffers from sleep issues, nightmares, fatigue, depression, frustration, irritability and anxiety. She also submits that psychologist Dr. Yeh diagnosed mixed anxiety and depressive disorder and isolated phobias. These are from OCF-18s and I find they must be accorded less weight because there is no complete assessment of the applicant and it was written in order to obtain funding for treatment.

14Furthermore, the applicant has submitted no evidence that her chronic pain has affected her functionality. She has returned to employment, including work as a swim instructor (which is physically demanding), has travelled to China to visit her family, and shows no signs of her injuries affecting her work or her activities of daily living.

15There are no clinical notes and records from the applicant’s family practitioner that show that the applicant suffers from any ongoing chronic pain issues or functional impairment.

16The applicant also relies on OCF-18s for her case, which as I stated earlier cannot be given the weight of clinical notes and records of treating physicians or health practitioners because OCF-18s are not full assessments and they have been submitted for the purpose of obtaining funding for treatment. For example, Dr. Georgia Palantzas, a chiropractor, opined the applicant suffered from chronic pain and injuries in OCF-18s dated June 23, 2016 and August 11, 2016. An OCF-18 is not sufficient compelling evidence of a medical condition related to an accident.

17The respondent submits that a s. 44 examination shows that the applicant should not be removed from the MIG limits, as her conditions do not warrant this.

18I find that the physiatry assessment by Dr. Zabielauskas, submitted by the respondent, was complete and thorough. It states that the applicant suffered from pain in her back and lumbar region and numbness in her upper left extremity. However, she had a full range of motion in her upper extremities. Dr. Zabielauskas opines that the applicant suffered a cervical strain WAD II and that it had healed. He noted that there was no evidence of any residual physical impairment from the motor vehicle accident, stating that the injuries were soft tissue in nature and uncomplicated. Consistent with Dr. Zabielauskas’s opinion I note that the applicant stated to her family doctor on March 7, 2019 that all pain from the accident in 2015 had resolved.

19While it is not binding, the Tribunal has found that the AMA Guides (AMA Guides, 6th ed.) are a useful tool to help determine whether an applicant meets the threshold for chronic pain. According to the AMA Guides, a patient needs to meet three of the six criteria for a diagnosis of chronic pain syndrome. These criteria, summarized, are:

i. the use of prescription drugs beyond the recommended duration,

ii. excessive dependence on health care providers or family,

iii. secondary physical deconditioning due to disuse,

iv. withdrawal from social milieu including work or social contacts,

v. a failure to restore pre-injury function after a period of disability such that the physical capacity is insufficient to pursue work, family or recreational needs, and

vi. development of psychosocial sequelae after the incident.

20The evidence the applicant has submitted is not compelling and has not shown that she suffers from chronic pain and functional impairment. There are no notes or objective evidence – in the form of CNRs from her doctors – showing that she uses prescription drugs excessively, has excessive dependence on health care providers or family, suffers from secondary physical deconditioning due to disuse, has withdrawn from social milieus, or has failed to restore pre-injury function after disability with an inability to pursue work or recreation. There is also no evidence submitted showing that the applicant suffers from any impairments as a result of her chronic pain. As a result, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain with functional impairment.

Psychological Condition

21The applicant did not show sufficient evidence to prove she suffered from a psychological condition as a result of the subject accident. Therefore, I find that she should not be removed from the MIG on this basis.

22The applicant relies mostly on OCF-18s as evidence of her psychological condition. She relies on an OCF-18 from psychologist Dr. Yeh, dated June 6, 2016, who opines that the applicant has mixed anxiety and depressive disorder; an OCF-18 dated April 19, 2021; and a pre-screening psychological report by Dr. McDowall who opined that the applicant suffered from sleeping difficulty, nightmares, fatigue, depression, frustration, irritability and anxiety. These treatment plans cannot be given the weight of an objective medical diagnosis by treating physicians because they are not a full assessment and have been completed in order to secure funding for treatment.

23There is one reference to the applicant’s mood and psychological condition in the CNRs of Dr. Renzhu Tao, her family practitioner (November 26, 2021). It is worth noting that this is six years after the accident. However, I am not persuaded to find that the applicant suffered from a psychological condition as a result of the accident. I find that there should be more than a single reference to psychological difficulties or her mood in the CNRs of other treating practitioners, however, the applicant submitted no such evidence.

24The applicant has had very few visits to her family doctor since the accident in 2015. In fact, there were no psychological complaints after the accident until the applicant’s second visit to her family doctor, Dr. Yin, on February 25, 2016 when she complained of anxiety and insomnia. There was no diagnosis from any medical professional that she suffered from any accident-related psychological conditions.

25The respondent relies on a s. 44 assessment by a psychiatrist, Dr. Hines, dated August 25, 2015. I place more weight on this psychiatric assessment because this report is comprehensive. The report states that the applicant is not suffering from any accident-related psychiatric illness and does not require additional mental health treatment related to the accident. The psychiatrist notes that the applicant has reached her pre-injury status and maximum medical improvement.

26Based on the evidence presented, I find on a balance of probabilities that the applicant does not suffer from any psychological condition related to the accident.

MIG: Conclusions

27I find on a balance of probabilities that the applicant has not established that she should be removed from the MIG on the basis of chronic pain or a psychological impairment.

28The applicant remains within the MIG and therefore an analysis into whether the treatment plans in dispute are reasonable and necessary is not required.

Award

29The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. No benefits were unreasonably withheld or delayed and therefore no award applies.

Interest

30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are overdue and therefore no interest applies.

ORDER

31For the reasons outlined above I find that:

i. The applicant remains within the MIG.

ii. As the applicant is in the MIG, it is not necessary to consider whether the treatment plans claimed are reasonable and necessary.

iii. The applicant is not entitled to an award.

iv. The applicant is not entitled to interest.

32I dismiss this application.