Zhan v. Intact Insurance Company, 2025 CanLII 3859

Citation: Zhan v Intact Insurance Company, 2025 ONLAT 23-000704/AABS

Licence Appeal Tribunal File Number: 23-000704/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 Min Zhan

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Yu Denise Jiang, Paralegal

For the Respondent: Elizabeth Harding, Counsel

HEARD: By way of written submissions

OVERVIEW

1Wei Min Zhan (“the Applicant”) was involved in an automobile accident on August 26, 2021, and sought benefits from Intact Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Respondent characterized the Applicant’s injuries as falling within the “minor injury” definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Applicant disagrees and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and subject to the MIG and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to a medical benefit in the amount of $1,300.00, less $1,197.03 approved by the Respondent, for a chiropractic treatment and assessment plan (“plan”) proposed by Total Recovery Rehab, dated October 29, 2021?

iii. Is the Applicant entitled to a medical benefit in the amount of $4,069.56 for a physiotherapy plan proposed by Total Recovery Rehab, dated November 23, 2021?

iv. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment plan proposed by Somatic Assessments & Treatment Clinic, dated October 7, 2021?

v. Is the Respondent liable to pay an award pursuant to section 10 of Regulation 664 because it unreasonably withheld or delayed the payment of benefits?

vi. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

5The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit.

6No interest or award is payable.

BACKGROUND

7The Applicant was seated in the driver’s seat of a parked vehicle which was struck on the rear end by another vehicle, which fled the scene of the accident. No police or ambulance attended at the scene of the accident, but the Applicant took himself to the hospital a few hours later with complaints of shoulder and back pain. He was examined at the hospital and given Naproxen and discharged.

8The Applicant followed up with his family physician, Dr. C. P. Chang, on September 7, 2021. Dr. Chang diagnosed the Applicant with neck and back strains and referred him to therapy.

9The Applicant claims that he has since developed psychological injuries and chronic pain and submits that these are injuries not included in the minor injury definition and that he should not be subject to the MIG as a result. The Respondent disagrees and submits that the Applicant has not developed any psychological injuries as a result of the accident and denies that he developed chronic pain as a result of the accident.

ANALYSIS

Minor Injury Guideline (“MIG”)

10The MIG establishes a treatment framework available to injured persons 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.

11The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

12For the following reasons, I find that the Applicant has not demonstrated that he sustained an injury in the accident that is not included in the minor injury definition.

No compelling evidence of a psychological injury from the accident

13I find that the Applicant has not demonstrated that he sustained a psychological injury as a result of the accident.

14The pre-screen report in the psychological assessment plan, dated October 7, 2021, is the only evidence of a psychological injury submitted by the Applicant. He has directed me to no other evidence to support his claim that he sustained psychological injuries as a result of the accident. This document is insufficient evidence of a psychological injury. The pre-screen report, based on an interview by social worker M. Fang, finds that the Applicant suffers from issues such as driving phobia, headaches, nightmares, sleep disorders, irritability, and anger. The pre-screen report also states that the Applicant described issues such as sleep issues and avoids driving. Yet, the Applicant reported to Dr. M. Saghotoleslami, psychologist, in the insurer’s examination (“IE”) report dated December 10, 2021, that he had no fear of driving and no anxiety while driving and denied any nightmares or flashbacks of the accident. To-date, the Applicant has not retracted those statements. Further, some of the issues the Applicant disclosed during the pre-screen interview can be explained by reviewing the Applicant’s medical record. For example, the Applicant has a history of sleep apnea, which wakes him during the night, and had engaged in consultations regarding this issue prior to the accident and his presentation is in keeping with his pre-accident functioning.

15The pre-screen report is further discounted in weight because the assessor failed to acknowledge their historical relationship with the Applicant and the 2018 accident for which he sought psychological treatment for. The Applicant was involved in a motor vehicle accident in 2018 and sought psychological counselling in 2019 as a result of that accident. Social worker Fang is the Applicant’s treatment provider in relation to services provided in relation to the 2018 accident, yet there is no mention of the accident in the pre-screen report. Additionally, the Applicant’s counselling records are not before me for review, despite the fact that the counselling records of social worker Fang would provide a clear baseline for the Applicant’s day-to-day psychological functioning and would be the best starting point to measure any accident-related psychological impairment.

16Additionally, I note that IE assessor, Dr. Saghatoleslami, concluded that the Applicant does not meet the criteria for a mood or anxiety disorder as a result of the accident. Dr. Saghatoleslami assessed the Applicant twice, which included clinical interviews, psychometric testing, and a review of the Applicant’s medical records provided, and issued reports dated December 10, 2021, and October 11, 2023. Dr. Saghatoleslami noted it was difficult to offer an accurate diagnosis with respect to the Applicant’s psychological functioning due to his performance on an objective test of effort and motivation, inability to interpret objective psychometric tests, the in congruency in relation to subjective complaints, his normal affect during the assessment, and the level of psychological distress endorsed on psychometric tests.

17Accordingly, I find that the Applicant has not sustained a psychological injury as a result of the accident.

No evidence of accident related chronic pain

18I find that the Applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident.

19The IE report of Dr. A. Belfon, physician, concluded that the Applicant sustained soft tissue injuries as a result of the accident and concluded that he could be treated within the MIG. The Applicant submits that Dr. Belfon’s report, dated June 16, 2022, demonstrates that he suffers from chronic pain because Dr. Belfon advised that an MRI of the Applicant’s left shoulder may be helpful and that the Applicant could consider cortisone injections to his left shoulder, arranged through his family physician.

20Dr. Belfon’s note for consideration is not evidence of a chronic pain condition, or a non-minor injury. The ultrasound and x-ray reports, dated April 12, 2022, are the most contemporaneous record regarding the Applicant’s left shoulder. No partial or complete tear are described in those reports, but tendonitis and early osteo arthritis is diagnosed, which are degenerative issues and not as a result of the accident. I further note that the Applicant did not report a shoulder injury to Dr. Chang immediately following the accident. However, the Applicant complained of shoulder issues to Dr. Chang prior to the accident, on June 2, 2021, when he stated that he was experiencing issues with his right shoulder for the past 2 weeks. Dr. Chang diagnosed him with tendinitis and referred him to therapy. The other complaint related to left shoulder pain in Dr. Chang’s CNRs is a April 6, 2022 encounter, where the Applicant reported left shoulder pain for three to four weeks. Overall, the evidence leans towards a view that the Applicant’s left shoulder pathology is of a degenerative nature and not related to the accident.

21Other than Dr. Belfon’s IE report, the Applicant has directed me to no evidence where a health practitioner diagnosed him with a chronic pain condition. Likewise, he has not provided any evidence or directed me to any evidence to support his claim that he suffers from a functional impairment as a result of the accident. Accordingly, he has not met his burden to demonstrate that he suffers from chronic pain as a result of the accident. Therefore, I find that his injuries are rightfully characterized as a minor injury. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

The Applicant is not entitled to the treatment and assessment plans in dispute

22The plans in dispute propose goods and services that fall outside the MIG. Having found that the Applicant is subject to the MIG, it follows that he is not entitled to the plans in dispute.

23I dismiss the Applicant’s claim that the Respondent failed to comply with section 38(8) of the Schedule, entitling him to the benefits pursuant to section 38(11). The Applicant submits that Dr. Belfon’s IE report resulted in uncertain conclusions, rendering his opinion meaningless and therefore not fulfilling the medical and other reasons requirement outlined in section 38(8). I find Dr. Belfon’s conclusions reasonable considering the pathology indicated in Dr. Chang’s CNRs. Thus, I find no entitlement to the treatment and assessment plans from a statutory perspective.

Interest

24Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits are payable, it follows that no interest is payable.

Award

25The 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.

26The Applicant seeks an award of an undisclosed amount. However, the Applicant made no reference to any specific behaviour by the Respondent for which an award could be considered. He alleges that the Respondent categorically ignored medical records but does not state which records he is referring to. This is a remarkable comment considering that the Applicant provided no medical records for this hearing, other than the records from his emergency room visit on the day of the accident. Further, he pleads that an award is payable because weekly benefits were never paid, yet he does not claim a specified benefit for this hearing and made no submissions on such a benefit being unreasonably withheld or delayed. Overall, the Applicant has proffered no submissions or evidence for which I can find an award payable.

27I find that the Respondent’s behaviour when adjusting this claim has never risen to the level which would be considered inflexible, imprudent, stubborn, or of bad faith. Accordingly, I find no award payable.

CONCLUSION ORDER

28The Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

29The Applicant is not entitled to the plans in dispute because the plans propose goods and services outside of the MIG and the $3,500.00 funding limit.

30No interest or award is payable.