Zhao Shui Liu v. TD General Insurance Company, 2025 CanLII 45358

Liu v. TD General Insurance Company, 2025 ONLAT 23-004393/AABS

Licence Appeal Tribunal File Number: 23-004393/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:

Zhao Shui Liu

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Gareth Neilson

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Orest Kuchar, Counsel

HEARD: By way of written submissions

OVERVIEW

1Zhao Shui Liu, the applicant, was involved in an automobile accident on October 14, 2022, 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 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 section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan dated November 12, 2022?

iii. the applicant entitled to $89.28 for a prescription, submitted on a claim form (OCF-6) dated January 19, 2023?

iv. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

3Issue number 2 as listed in the case conference report and order has been approved and therefore no longer an issue in dispute.

RESULT

4The applicant’s injuries are predominantly minor and therefore the applicant shall remain in the MIG.

5As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

6The respondent is not liable to pay an award.

7No interest is due.

8The application is dismissed.

PROCEDURAL ISSUES

9The respondent raised the issue of the applicant’s submissions exceeding the page length prescribed in the case conference report and order. As I have found the applicant is subject to MIG and therefore no treatment plans have been awarded, there is no prejudice to the respondent.

ANALYSIS

Applicability of the Minor Injury Guideline (MIG)

10The applicant’s injuries as a result of the motor vehicle accident are minor in nature and therefore the applicant shall remain within the MIG limits. Both parties have agreed that the MIG limits are exhausted.

11Section 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.”

12An 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 injury or 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.

13The applicant argues that they should be removed from the MIG due to both physical and psychological reasons. The applicant relies on evidence provided by Dr. Pun, Dr. Afifi, Dr. Kai, Dr. Palantzas, Dr. Naisi and Dr. Colby. The applicant argues that each one of these doctors have agreed that the applicant suffers from ongoing pain. The applicant argues that they suffered from constant pain in the back, neck and shoulders. The applicant argues that this pain gave them difficulties standing, walking, sitting and lifting objects. The applicant further argues that this pain has been in existence more than 2 years post accident and therefore their pain should be considered chronic.

14Psychologically, the applicant argues that they should be removed from the MIG because they suffer from sleep difficulties, nightmares, fatigue, sadness, depression and anxiety. Dr. Naisi opined that the accident contributed to the applicant’s ongoing psychological issues and could not achieve maximal recovery under the MIG limits. Additionally, Dr. Pun, Dr. Afifi, Dr. Kai and Dr. Palantzas noted that the applicant suffered from various different psychological issues. The applicant argues that based on the balance of probabilities, he sustained a psychological impairment as a result of the accident and he cannot achieve maximal recovery under the MIG limits.

15The respondent relies primarily on the section 44 reports of Dr. Seung-Jun Lee (GP) and Dr. Amena Syed (Psychologist). The respondent argues that applicant has failed to meet their burden of proof that their injuries warrant removal from the MIG. The respondent argues that he has chronic pain or psychological impairments that are sequelae of minor injuries and do not warrant removal from the MIG. The respondent further argues that the applicant does not have any functional impairments as a result of the motor vehicle accident. The respondent also argues that the ongoing pain that the applicant suffers from was evident prior to the accident.

16While the applicant has not raised the issue of pre-existing conditions in their submissions, the respondent argues that the applicant was suffering from a pre-existing condition at the time of the motor vehicle accident. The respondent argues that the applicant has not been able to prove how the pre-existing medical conditions prevent him from achieving maximal recovery under the MIG. Finally, the respondent points to the assessment of Dr. Syed whereby the applicant revealed that he does not need psychological treatment.

17The applicant has failed to prove that they need further physical or psychological therapy. The applicant has also failed to show that, based on the medical documentation available, that they suffer from chronic pain that warrants removal from the MIG. It is clear based on the evidence in front of the Tribunal that the applicant had a pre-existing history of pain and difficulty sleeping. The report of Dr. Lee from August 25, 2023 noted that from a musculoskeletal perspective the applicant can achieve maximal recovery within the $3500.00 MIG limit. From a chronic pain perspective, there is no evidence that the subject accident has caused consistent and debilitating pain which would warrant removal from the MIG. The applicant has not been able to prove that they have ongoing pain which substantially interferes with their activities of daily living. The psychological impairments as a result of the accident also do not warrant removal from the MIG. The applicant has not been diagnosed with any psychological sequelae as a result of the accident by a psychiatrist or a psychologist, and as mentioned above, the applicant told Dr. Syed that he did not believe he needed psychological treatment. For these reasons the applicant has failed to prove that based on the balance of probabilities the injuries sustained as a result of the motor vehicle accident, warrants removal from the MIG.

18I find the applicant’s injuries are minor in nature as defined in the Schedule and therefore the applicant shall remain in the MIG.

19As the applicant will remain in the Minor Injury Guideline and the MIG limits are exhausted, there is no need to consider whether the treatment plans in dispute are reasonable and necessary.

Interest

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits have been awarded no interest is due.

Award

21The 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. I find that as no benefits were unreasonably withheld or delayed, no award is payable.

ORDER

22I order the following:

i. The applicant shall remain within the Minor Injury Guideline limits.

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

iii. No interest is awarded.

iv. The applicant is not entitled to an award.

v. The application is dismissed.

Released: May 9, 2025

__________________________

Gareth Neilson

Adjudicator