Licence Appeal Tribunal File Number: 23-007761/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:
Qing Bang Zheng
Applicant
And
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bruce Stanton
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Jonathan White, Counsel
Heard: by way of written submissions
OVERVIEW
1Qing Bang Zheng, the applicant, was involved in an automobile accident on October 21, 2018, 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, Pembridge Insurance Company, and applied, on July 4, 2023, to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2This is the second appeal filed by the applicant involving this accident and respondent.
ISSUES
3The 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $4,303.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated June 20, 2022?
iii. Is the applicant entitled to $74.33 for medication expenses, submitted on a claim form (OCF-6) dated July 16, 2021?
iv. Is the applicant entitled to $1,626.38 for out-of-country hospital expenses submitted on an OCF-6 dated January 4, 2022?
v. Is the applicant entitled to $3,744.45 for out-of-country hospital expenses submitted on an OCF-6 dated March 7, 2022?
vi. Is the applicant entitled to $14,750.81 for the cost of a catastrophic impairment (“CAT”) assessment, proposed by Somatic Assessments and Treatment Clinic in a plan submitted February 3, 2023?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant’s injuries are predominantly minor. As the applicant is in the MIG, it is not necessary for me to consider if the disputed treatment plans and expenses are reasonable and necessary. The respondent is not liable to pay an award under s. 10. As no payment of benefits is overdue, no interest is owed to the applicant.
ANALYSIS
Minor Injury Guideline (“MIG”)
5I find the applicant’s accident injuries are predominantly minor.
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. 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.”
7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from 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.
8The applicant argues that his accident injuries resulted in both chronic pain and psychological impairment that warrant him being removed from the MIG.
Chronic Pain
9The applicant submits that he is experiencing ongoing physical pain from the accident and relies on the disability certificate (OCF-3) submitted by Mr. Xu, physiotherapist, and two OCF-18s by Dr. Georgia Palantzas, chiropractor. The applicant also relies on the updated clinical notes and records of his family physician, Dr. Dong, from March 2022, and the clinical notes and records of Dr. Michael Mak, psychiatrist, between November 16, 2022 and June 14, 2023.
10The applicant travelled to China in late 2019 and was delayed in returning to Canada due to COVID-19 travel restrictions. While there, the applicant suffered a hemorrhagic stroke and was hospitalized around September 23, 2021.
11The applicant attended appointments with Dr. Dong on March 4 and 6, 2022 shortly after returning to Canada. Dr. Dong’s CNRs from those two appointments are centred on the applicant’s stroke and make no reference to the motor vehicle accident. The applicant directed me to the CNR’s references to “left-sided numbness for a few months and pins and needles”, as well as “tingling in the upper arm and left leg weakness”. The applicant submits that these CNRs, along with the treatment plans, disability certificate, and Dr. Mak’s notes and records (see below), support his claim that the accident resulted in chronic pain.
12The respondent submits that Dr. Dong documented only one appointment in relation to the accident, December 5, 2018, which was six weeks post-accident, and revealed that the applicant felt his neck pain from the accident had “largely resolved”. The respondent submits Dr. Dong never diagnosed chronic pain or any physical impairments from the accident, and in two phone consultations from China in 2021, and two appointments in March 2022, there is simply no mention of the accident.
13The respondent directed me to the neurological assessment of Dr. Chern Lim, neurologist, to whom Dr. Dong had referred the applicant for an urgent consultation regarding the stroke he suffered in September 2021. The respondent noted that Dr. Lim’s assessment deals almost exclusively with the applicant’s stroke event with no mention of the accident in 2018.
14The respondent further submits the applicant has not provided any new evidence since a previous LAT decision in his appeal under Tribunal file 21-000853/AABS that would justify a different outcome on the question of the MIG. I note that the respondent did not argue that the doctrine of issue estoppel applies in this case or make submissions on the relevant legal test.
15In the applicant’s appeal under file 21-000853/AABS, the Tribunal determined that the applicant’s injuries were predominantly minor. The Vice-Chair determined that his injuries were consistent with the definition of minor injury set out in section 3 of the Schedule.
16I find the applicant has not proven, on a balance of probabilities, that the accident has resulted in him suffering chronic pain with a functional impairment.
17I give no weight to the applicant’s OCF-18s or the OCF-3 because they are not backed up by corroborating medical evidence. The Tribunal has consistently found that documentation of conditions and symptoms in treatment plan proposals (OCF-18s) and disability certificates (OCF-3s) is not sufficient proof of impairment on their own. They become more persuasive and reliable when corroborated by qualified, independent medical reports and records (CNRs of physicians, independent practitioners and specialists), which is not the case here.
18Neither Dr. Dong’s updated CNRs or Dr. Lim’s neurology report referred to the 2018 motor vehicle accident as being related to the physical pain complaints the applicant was then reporting (in March 2022), and Dr. Mak is not qualified to opine on chronic pain. Although Dr. Lim’s assessment was at the request of Dr. Dong, and in relation to the stroke the appellant suffered, I give it some weight due to its extensive review of the appellant’s medical history (with no mention of the 2018 motor vehicle accident) and that the appellant stated that he was “otherwise healthy prior to his stroke, except for his hypertension and enlarged prostate.”
19For these reasons I find, on a balance of probabilities, that the applicant has not proven that the accident resulted in chronic pain.
Psychological impairment
20The applicant submits that he sustained psychological injuries in the accident and that he should therefore be removed from the MIG.
21The applicant referred me to the clinical notes and records of four appointments he had with Dr. Mak between November 16, 2022 and June 14, 2023 noting that Dr. Mak diagnosed him with post-traumatic stress disorder and borderline major depressive disorder symptoms as a result of the accident. He reported that the MVA led to “trauma-related distressing dreams, complete avoidance of driving, diminished interest and a negative emotional state.”
22The applicant further relies on two treatment plans to support his submission to escape the MIG based on psychological impairment:
a) proposed by Dr. Sharleen McDowall, psychologist, May 2, 2019, for an in-depth psychological assessment; and
b) proposed by Dr. Svetlana Gabidulina, psychologist, February 5, 2024, for psychological treatment.
23The two treatment plans describe the applicant’s psychological impairment as fear, anxiety, depression, frustration and fatigue, as well as headaches, nightmares and non-organic sleep disorders.
24The applicant submits that Dr. Dong’s CNRs continuously report anxiety, sleeping difficulty, fear of driving and difficulty with cognitive tasks.
25The respondent submits that neither Dr. Dong’s clinical notes and records referenced by the applicant nor Dr. Lim’s neurology report mention any anxiety or depression. The only reference made of accident-related psychological injury was in Dr. Dong’s CNR of December 5, 2018, in which he noted the applicant was experiencing “some anxiety following the MVA”.
26I find on a balance of probabilities that the applicant has not proven that he suffered a psychological impairment in the accident.
27I do not give weight the two treatment plans by Dr. McDowall and Dr. Gabidulina because they are not corroborated by qualified, independent medical opinion.
28I give Dr. Mak’s clinical records little weight because I find:
i. they are inconsistent with Dr. Dong’s CNRs and Dr. Lim’s neurology report. Dr. Dong’s CNRs made only one reference to the applicant having some MVA-related anxiety in December 2018. Dr. Lim notes that during the applicant’s assessment he showed no apparent cognitive deficit and was alert and oriented to time, place and person. Dr. Lim reported no psychological symptoms or complaints despite conducting what appears to be a detailed investigation of the applicant’s health status at that time;
ii. Dr. Mak also noted that a second stressor (after the 2018 accident) on the applicant’s psychological condition was the stroke he suffered in September 2021. The extent to which the stroke-related symptoms affected Dr. Mak’s impression of the applicant and treatment plan for him is not clear; and
iii. the time of the Dr. Mak’s assessment was more than four years post-accident with little in the way of independent evidence of accident-related psychological complaints or symptoms during that time since the accident.
29I am not persuaded by the applicant’s submission that Dr. Dong continuously reported that the applicant has anxiety, sleep disorder and difficulty with cognitive tasks. A review of his CNRs does not support that argument. The applicant did not refer me to the records from which he concluded Dr. Dong was continuously reporting these complaints. I find Dr. Dong’s CNRs after December 5, 2018 relate to other symptoms and complaints that appear to be unrelated to the accident e.g. colonoscopy, pain complaints that are not noted as being accident related, and in March 2022, in relation so the stroke he suffered in September 2021.
30For the reasons stated above, I find on a balance of probabilities that the applicant has not proven he sustained a psychological injury from the accident.
31In sum, I find on a balance of probabilities that the applicant has not demonstrated that the accident caused him chronic pain or psychological injury. Accordingly, the applicant is subject to the MIG. His accident injuries are consistent with the definition in s. 3 of the Schedule.
Issues 2, 3, 4, 5 and 6 – treatment plans and expenses
32As I have found that the applicant’s injuries are within the MIG, it is not necessary for me to consider whether the treatment plans in dispute and expenses in dispute are reasonable and necessary.
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no payment of benefits is overdue, the applicant is not entitled to interest.
Award
34The 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.
35Since I have found that no payment of benefits is owing, and no evidence before me that indicates the respondent resolved a claimed benefit on the eve of the hearing, I find that the insurer did not unreasonably withhold or delay the payment of benefits. The respondent is not liable to pay an award under s. 10 of Reg. 664.
ORDER
36Accordingly, I order the following:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule;
ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans and expenses in dispute are reasonable and necessary;
iii. The applicant is not entitled to interest; and
iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.
Released: May 20, 2025
Bruce Stanton
Adjudicator