Ji v. Intact Insurance Company, 2025 CanLII 35923

Citation: Ji v. Intact Insurance Company, 2025 CanLII 35923

Licence Appeal Tribunal File Number: 23-003013/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:

Su Hyun Ji

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Gary Harvey

APPEARANCES:

For the Applicant: Jae Hyon Cho, Counsel Jun Lee, Counsel

For the Respondent: Cindy Leung, Counsel

HEARD: By way of written submissions

OVERVIEW

1Su Hyun Ji, the applicant, was involved in an automobile accident on May 14, 2021, 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. 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? Note: The parties agree that the MIG limits have been exhausted.

ii. Id the applicant entitled to $106.74 ($1,317.30 less $1,210.57 approved) for chiropractic services, proposed by Kingsbridge Rehab Centre in a treatment plan submitted October 4, 2021?

iii. Is the applicant entitled to $1,253.84 for chiropractic services, proposed by Kingsbridge Rehab Centre in a treatment plan submitted December 13, 2021?

iv. Is the applicant entitled to $2,200.00 for a combined chronic pain and psychiatry assessment, proposed by Dr. Amir Owliaei in a treatment plan submitted November 19, 2022?

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

RESULT

3The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (MIG). The applicant is not entitled to the disputed treatment plans or interest.

ANALYSIS

The applicant is not removed from the MIG

4I find that the applicant has not proven on a balance of probabilities that she has suffered more than a minor injury that prevents maximal recover, and she is therefore not entitled to treatment in excess of the MIG limit.

5Section 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.”

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, 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 pai with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant claims that she is entitled to be removed from the MIG on two grounds:

i. That she suffers from chronic pain as a result of the accident; and

ii. That she suffers from a psychological impairment as a result of the accident.

The applicant has not established that she should be removed from the MIG on the basis of chronic pain

8I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain with a functional impairment that warrants removal from the MIG.

9Ongoing pain does not automatically take a person out of the MIG. It is well established that to be removed from the MIG based on chronic pain, the pain must be of a continued severity resulting in functional impairment.

10It is submitted by the applicant that post accident she relies on her sister to assist her with housekeeping and home maintenance tasks, however no specific detail was submitted for consideration.

11The applicant submitted that she suffers from neck pain located along the posterior cervical spine, of sudden onset, of varying intensity with the current intensity of 3/10, upper and lower back pain with a reported intensity of 4/10 and bilateral wrist pain with a current intensity of 2/10 and that the pain is temporarily relieved with taking Tylenol. This is contained within the assessment conducted on March 10, 2023, by Dr. Jinoos Jianfar, MD & Dr. Hesam Mohsini, DC. It is also noted in their assessment that the applicant changed jobs post-accident in December 2022, from a desk job for a logistics company to working as a Customer Service Specialist for a national airline where she reports the new “job can be very demanding at times while handling luggage and pushing wheelchairs, which increase her back pain and wrists pain.”

12The applicant also submits that at the initial medical visit by the applicant on or about May 18, 2021, where the assessor, Dr. Dennis Zander, conducted diagnostic imaging and “identified reversal of the normal lordosis which may be seen as a muscle spasm.” The applicant also relies on the s. 44 independent assessment of Dr. John Presvelos on April 8, 2022, where he notes the diagnosis of left-sided neck myofascial pain and upper back myofascial pain as a direct result of the subject accident.

13The applicant further relies on the s. 44 physical assessment of assessors Dr. Jianfar and Dr. Mohsini on March 27, 2023. It is noted the diagnosis of chronic pain of the cervical spine, lumbar and lumbosacral spine, thoracic spine, right shoulder rotator cuff/biceps brachii injuries, headaches with difficulty sleeping and driving anxiety as a direct result of the subject accident.

14The respondent submits and relies on an independent assessment that was conducted on April 8, 2022, where the assessor Dr. Presvelos documented that the applicant began attending chiropractic treatment, physiotherapy, and massage therapy in June 2021, for her accident-related injuries and noted temporary relief for 24 hours following the treatments. The applicant reported in the assessment to have a 50% improvement in her symptoms and that in the 4-5 months prior to the assessment her improvement has plateaued, and she has not experienced any further improvement. Dr. Presvelos diagnosis was that the applicant presents with signs, symptoms, and imaging consistent with a diagnosis of myofascial neck and upper body back pain, that temporarily improves with treatments.

15The respondent also relies on a section 44 assessment conducted by Dr. Mohamed Lamine, General Physician, conducted on January 5, 2023, to determine if the chronic pain assessment proposed is reasonable and necessary. Dr. Lamine noted that there was no tenderness to palpation in the applicant’s neck and her range of motion was full. The assessment noted mild tenderness palpated on both sides of the applicant’s upper back with the range of motion full bilaterally. Dr. Lamine concluded that there was no objective accident-related musculoskeletal or neurological impairment.

16Taking into consideration all of the medical records as submitted and the assessments conducted, I find that the applicant has not established the burden of proof on a balance of probabilities, that she sustained more than a minor injury. It is documented that the injuries are soft tissue in nature and at the assessment with Dr. Jianfar, MD and Dr. Mohsini, DC, the applicant reported low intensity levels of 2 – 4 out of 10 when asked about her varying areas of pain. It is documented by Dr. Presvelos in his April 8, 2022, assessment that the applicant attended chiropractic, physiotherapy, and massage therapy in June 2021, however the applicant reported it was providing temporary relief for 24 hours afterwards. The applicant also reported to Dr. Presvelos to have a 50% improvement in her symptoms, with her symptoms plateauing 4-5 months prior to the assessment. In the January 5, 2023, an assessment conducted by Dr. Lamine, GP, notes that there was no tenderness to palpation in the applicant’s neck and her range of motion was full, however he did note mild tenderness on the applicant’s upper back with a full range of motion. There is also a probability that entering a more physical job post-accident, has had a negative impact on the applicant’s recovery and ongoing pain complaints with the two assessments being 11 months apart, as it is documented that the applicant reported that this job can be more strenuous than her previous desk related job.

17Taking the submissions of the applicant into account, I find that the applicant has not established the burden of proof on a balance of probabilities, that she sustained more than a minor injury.

The applicant has not established that she should be removed from the MIG on the basis of a psychological impairment

18I find that the evidence establishes that the applicant’s psychological injuries fall within the definition of minor injury under s. 3(1) of the Schedule.

19An 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 the minor injuries under s. 3(1) of the Schedule.

20In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

21The applicant relies on a Psychiatric Assessment conducted on or about March 9, 2023, by assessor, Dr. Atih Seif, it is noted that the applicant’s accident-related diagnostic impression is that the applicant suffers from:

i. Major Depressive Disorder, Single Episode, in the moderate range, with Anxious Distress

ii. Somatic Symptom Disorder, with predominant pain, in the persistent range, at mild levels

iii. Specific Phobia, situational type - vehicular

22The respondent relies on a Psychological Assessment that was conducted on January 9, 2023, by assessor, Dr. Shulamit Mor. During this assessment the applicant reported symptoms of generalized anxiety disorder and dysthymia which do not interfere with the applicants daily functioning and arose from her family background and pressures to be financially successful. The applicant did not attribute this to the subject accident and did not report any exacerbation as a result of the accident.

23Dr. Mor provided an Addendum Report on June 5, 2023, in relation to the findings of Dr. Seif’s Assessment as there is a marked difference between the two assessments. Dr. Mor submitted that he had diagnosed her two months prior where the applicant “denied any sleep difficulties, cognitive challenges, changes to her energy level, weight or appetite and so forth.”

24I place more weight on the Psychological Assessment of Dr. Mor, which was conducted closer to the accident date, however still nearly two years post-accident where the applicant provided very different responses in the assessment in comparison to the s. 25 assessment conducted some two months later. Dr. Mor found that although the applicant reported psychological symptoms of generalized anxiety disorder and dysthymia, the clinical findings report that the symptoms do not interfere with the applicant’s functioning and have arisen from her family background with pressure to be financially successful. Dr. Mor maintained his findings after a review and an Addendum Report submitted to comment on the findings of the section 25 assessment of Dr. Seif, dated March 14, 2023. In Dr. Mor’s Addendum Report it indicates that his impression of her psychological functioning is different. The report indicates “For example, she denied any sleep difficulties, cognitive challenges, changes to her energy level, weight, or appetite and so forth. Notably, she also reported that since the subject accident she has changed jobs and currently works for an airline and not at a logistics company. She also estimated 80% improvement in her physical symptoms. It seems that there was not enough exploration of her lifelong struggles and anxiety and stress. It is difficult to conclude that there has been such sever deterioration in her functioning two months following my own assessment.” It is also documented in the assessment that the applicant does not report any symptoms of Post Traumatic Stress Disorder as her driving anxiety has “become much better now” and does not drive with any restrictions. The applicant reported that she experienced nightmares and intrusive thoughts about her accident initially, however they have diminished with time and does not experience them any longer. There is a vast difference in the diagnosis between the two assessments which appear to be similar in complexity. I do place greater weight on the initial reporting in the first assessment to Dr. Mor, as there is no evidence to indicate that the applicant’s responses as recorded were incorrect or swayed in any way.

25As a result, I find the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.

26Since I have found that the applicant’s claims are subject to treatment within the $3,500.00 limit of the MIG, and since that limit has already been exhausted, the applicant is not entitled to the benefits claimed. It is not necessary to determine whether the treatment plans in dispute are reasonable and necessary as a result of the accident.

Interest

27Given there is no overdue payments of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

28The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to the 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.