Gu v. Intact Insurance Company, 2025 CanLII 47352

Citation: Gu v. Intact Insurance Company, 2025 ONLAT 23-009990/AABS

Licence Appeal Tribunal File Number: 23-009990/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:

Ming Hao Gu

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Navjot Banipal, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Ming Hao Gu, the applicant, was involved in an automobile accident on September 18, 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, Intact Insurance Company, 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 a non-earner benefit (“NEB”) in the amount of $185.00 per week from October 17, 2022 to date and ongoing?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan/OCF-18 (“plan”) submitted October 17, 2022?

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 has not demonstrated on a balance of probabilities that he sustained injuries as a result of the accident that warrant removal from the MIG.

4The applicant is entitled to treatment up to the MIG limits and it is not necessary to consider whether the disputed plan for a psychological assessment is reasonable and necessary.

5The applicant is not entitled to a non-earner benefit, interest or an award.

ANALYSIS

The applicant has not sustained accident-related injuries that warrant removal from the MIG

6I find that the applicant has not proven on a balance of probabilities that he sustained a psychological condition as a result of the accident such that he should be removed from the MIG on this basis.

7Section 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 in accordance with the MIG. 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 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 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.

9The applicant submits that he should be removed from the MIG on account of his psychological impairments, which include adjustment disorder, insomnia and stress. The applicant relies on pre-screen interview on October 6, 2022 conducted by Yuling Zhou, psychotherapist, of Somatic Assessments and Treatment Clinic and the pre-screen report dated October 7, 2022, by Dr. Sedigheh Naisi, psychologist in support of his position. The applicant submits that Dr. Naisi indicates in her report that the applicant has feelings of depression, frustration, irritation, worry and stress. The applicant submits that the medical evidence demonstrates the need for psychological treatment.

10The respondent relies on Insurer Examination (“IE”) report dated February 28, 2023 by Dr. Pankaj Bansal, and IE report dated February 23, 2023 by Demetrios Kostadopoulos, occupational therapist. The respondent submits that Dr. Bansal opined that the applicant’s soft tissue injuries have healed, and he has no functional deficits. The respondent submits that the applicant did not attend a hospital or medical practitioner after the accident to report any psychological symptoms, and there is no psychological diagnosis.

11I do not find the applicant’s evidence persuasive because although there are psychological symptoms of nightmares, irritation, worry and stress, there is no actual psychological diagnosis. Further, I find that the evidence does not support that the applicant has a psychological impairment.

12I find that although the applicant reported to Yuling Zhou that he does not attend classes, he reported to Dr. Bansal that he only missed a few days from school, he completed his exams, and he will graduate on time. In addition, although the applicant reported difficulties in recreational activities to Yuling Zhou, he reported to Dr. Bansal that he attends a fitness club two to three times per week.

13I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG on the basis of a psychological impairment. The applicant reported to Dr. Bansal and Demetrios Kostadopoulos that he returned to all his pre-accident academic and social activities. Although the applicant may have some psychological symptoms associated with his minor injuries, there is no psychological impairment as a result of the accident.

14Since the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plan is reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.

The applicant is not entitled to a non-earner benefit (“NEB”)

15I find that the applicant has not established entitlement to an NEB as the evidence regarding his pre- and post-accident functional abilities does not support this claim.

16Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

17Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

18The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, (“Heath”) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

19The applicant submits that he has suffered a complete inability to carry on a normal life due to his accident-related injuries. The applicant relies on his Disability Certificate (OCF-3) dated September 30, 2022, completed by Dr. Richard Tavares, chiropractor of UHeal Rehab Centre in support of his entitlement to a NEB, which indicates that he was unable to carry on a normal life without exacerbating his symptoms, but he does not further address the test.

20On the evidence before me, I am unable to engage in the analysis required by Heath to determine if the applicant suffers from a complete inability to carry on a normal life. This evidence does not provide any details of the applicant’s pre-accident activities or demonstrate how his participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to the applicant, how he is prevented from engaging in the activities he normally engaged in pre-accident or evidence of the frequency and time commitments of his pre-accident activities. In the absence of this information, it is not possible to compare the applicant’s pre- and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.

21The respondent relies on Insurer Examination (“IE”) report dated February 28, 2023 by Dr. Pankaj Bansal, general practitioner and IE report dated February 23, 2023 by Demetrios Kostadopoulos, occupational therapist. The respondent submits that the applicant reported to Dr. Bansal that he returned to his pre-accident studies after the accident, and he expects to graduate as planned. The respondent further submits that Dr. Bansal indicates that the applicant reported that he has returned to the gym and his pre-accident housekeeping tasks. The respondent submits that during the occupational therapy assessment on February 15, 2023, Demetrios Kostadopoulos observed no functional limitations, and the applicant reported that he has returned to all of his pre-accident activities.

22The respondent argues that the applicant has not addressed the factors set out in Heath v. Economical Mutual Insurance, Company, 2009 ONCA 391, which include a comparison of the applicant’s activities and life circumstances before and after the accident.

23I agree with the respondent that the medical evidence does not establish that the applicant suffers from a complete inability to carry on a normal life as a result of the accident because I find this evidence does not address the elements of the legal test and I find that the applicant reported to Dr. Bansal and Demetrios Kostadopoulos that he has returned to all his academic, housekeeping, social and recreational activities.

24For the reasons set out above, I find that the applicant has not established that he suffered from a complete inability to carry on a normal life as a result of the accident from October 17, 2022 to date and ongoing. As a result, I find on a balance of probabilities that the applicant has not established entitlement to NEBs.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful in demonstrating his entitlement to a NEB or the disputed psychological assessment, no benefits are owing and interest does not apply.

Award

26The applicant sought an award under s. 10 of Reg. 664 because the respondent unreasonably denied his benefits and treatment. 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. Since there were no benefits withheld or delayed, an award under s.10 of Reg. 664 is not warranted.

ORDER

27For the reasons set out above, I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit. The applicant is entitled to treatment up to the MIG limits and, it is not necessary to consider whether the disputed plan for a psychological assessment is reasonable and necessary;

ii. The applicant is not entitled to a NEB in the amount of $185.00 per week for the period from October 17, 2022 to date and ongoing;

iii. Interest is not payable and the respondent is not liable to pay an award; and,

iv. The application is dismissed.