Liu v. Allstate Insurance Company of Canada, 2025 CanLII 45364

Citation: Liu v. Allstate Insurance Company of Canada, 2025 ONLAT 23-011788/AABS

Licence Appeal Tribunal File Number: 23-011788/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:

Liang Jin Liu

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Colleen Mackeigan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Liang Jin Liu, the applicant, was involved in an automobile accident on October 1, 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, Allstate Insurance Company of Canada, 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 $4,383.90 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) denied on January 24, 2023?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a plan denied on January 24, 2023?

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

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

RESULT

3The applicant’s injuries fall within the MIG.

4As the applicant remains within the MIG, it is not necessary to consider whether the treatment plans in dispute are reasonable and necessary.

5The respondent is not liable to pay an award.

6As there are no overdue benefit payments, there is no interest owing.

ANALYSIS

The Minor Injury Guideline

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”

8An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

9The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG.

a) The applicant does not suffer from a psychological condition warranting removal from the MIG

10The applicant has not proven on a balance of probabilities that she suffered from a psychological condition that warrants removal from the MIG.

11The applicant argues that she sustained a severe psychological impairment as a result of the subject accident. The applicant relies on a pre-screening report by Dr. Naisi from October 24, 2022, and the clinical notes and records (CNRs) of the applicant’s family doctor, Dr. Lam.

12I find that the CNRs of Dr. Lam do not support a psychological condition that warrants removal from the MIG. The accident is only mentioned once in the CNRs, and the doctor diagnosed “mild PTSD” and prescribed “CBT for PTSD”. This diagnosis is not mentioned again in the CNRs. Future references to any psychological complaints in the CNRs are regarding the applicant’s daughter, with no association with the subject accident.

13I place little weight on the pre-screening report by Dr. Naisi. The doctor’s conclusions are not corroborated by any compelling medical evidence. The list of symptoms listed in the pre-screening report are not supported by the applicant’s reporting to his family doctor, Dr. Lam. The CNRs of Dr. Lam do not show any complaints of frustration, depression, or anxiety from the subject accident. As noted above, Dr Lam once referred to mild PTSD, which is not referred to by Dr. Naisi.

14In sum, I find on a balance of probabilities that the applicant does not suffer from a psychological impairment that warrants removal from the MIG. The CNRs of Dr. Lam do not indicate the applicant suffers from an accident-related psychological condition. The notation of “mild PTSD” was never followed up on, and all subsequent reports of psychological complaints were associated to other sources and not the subject accident.

b) The applicant does not suffer from chronic pain with a functional impairment.

15The applicant has not proven on a balance of probabilities that she has chronic pain with a functional impairment that warrants removal from the MIG.

16The applicant argues that he suffers from chronic pain as a result of the subject accident. The applicant relies on the clinical notes and records of Dr. Lam, her family doctor, and an OCF-18, by Dr. Palantzas, physiotherapist, from January 7, 2023.

17I find that that CNRs of Dr. Lam do not support the applicant’s claim of chronic pain with a functional impairment. There is only one mention of the subject accident in the CNRs and Dr. Lam notes neck strain and shoulder strain in that notation. All other mentions of discomfort are referred to as generalized pain and no association with the subject accident is made.

18I place little weight on the OCF-18 by Dr. Palantzas. The OCF-18 is for the purpose of obtaining approval for physiotherapy services and is not compelling medical evidence of chronic pain with a functional impairment. Further, the OCF-18 is not corroborated by the CNRs of Dr. Lam. Specifically, the OCF-18 indicates that the applicant has a “marked decrease in functional capacities.” As noted above, however, the CNRs of Dr. Lam do not indicate any functional issues experienced by the applicant, or any issues with respect to activities of daily living.

19In sum, I find on a balance of probabilities that the applicant does not have chronic pain with a functional impairment that warrants removal from the MIG. The CNRs of Dr. Lam do not indicate the applicant has chronic pain or a functional impairment.

20As the applicant has been found to remain in the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit payments are overdue, no interest is owing.

Award

22The 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. As no benefit payments were unreasonably withheld or delayed, the respondent is not liable to pay an award.

ORDER

23I find that:

i. The applicant remains in the MIG.

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

iii. No interest is owing.

iv. The respondent is not liable to pay an award.

v. The application is dismissed.