Dao Tong Dai v. Allstate Canada, 2025 CanLII 49202

Citation: Dai vs. Allstate Canada, 2025 ONLAT 23-005971/AABS

Licence Appeal Tribunal File Number: 23-005971/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:

Dao Tong Dai

Applicant

and

Allstate Canada

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Aleah H. Thomas, Counsel

HEARD: In Writing

OVERVIEW

1Dao Tong Dai, the applicant, was involved in an automobile accident on May 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 Allstate Canada, Insurer, 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 $3,749.56 for physiotherapy services proposed by UHeal Rehab Centre in a treatment plan/OCF-18 ("treatment plan") dated September 14, 2022?

iii. Is the applicant entitled to $2.200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic a treatment plan dated July 6, 2022?

iv. Is the applicant entitled to $3,701.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated June 7, 2023?

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

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

RESULT

3The applicant's injuries are minor and treatable within the MIG.

4The remainder of this application is dismissed.

ANALYSIS

Minor injury guideline (MIG)

5I find that the applicant's accident related impairments are minor and do not warrant removal from the MIG.

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 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.

8According to the applicant, he has severe psychological impairments and chronic pain caused by the accident. He submits that these injuries justify removal from the MIG.

9The respondent submits that the applicant's psychological diagnosis is unfounded as it is based on self reported symptoms to Mr. Bruce Cook, a Psychological Assistant. The respondent further submits that the accident cannot be the cause of his musculoskeletal complaints because his complaints are identical to those that he made pre-accident. In its view, the applicant's injuries are minor and treatable within the MIG.

Psychological impairment

10The applicant relies on the treatment plan of Dr. Sharleen McDowall, psychologist, dated July 6, 2022. According to him, Dr. McDowall diagnosed him with post-accident psychological impairments. I note there is no diagnosis of a mental health condition by Dr. McDowall. However, she does list the symptoms reported to her by the applicant and opines that his psychological impairments are the direct result of the accident.

11Dr. McDowall states that the applicant's psychological impairments have seriously effected his mood. She also describes his accident related sleep difficulties as follows:

...Mr. Dai expressed frustration with the psychological aftermath of the accident. In particular, he had noticed the quality of his sleep has deteriorated. He struggled with falling and remaining asleep and often suffered insomnia. Mr. Dai reported that now he would only be able to achieve five hours of sleep daily. Moreover, he would only wake up at night due to nightmares related to his accident , and it would be difficult for him to sleep again. Consequently, Mr. Dai felt fatigued during the day, which contributed to his anxiety and poor mood.

12Dr. McDowall also records a loss of appetite caused by psychological symptoms and the resulting weight loss.

13About three weeks later, on July 29, 2022, the applicant had a consultation with Dr. Jeffrey Wong, his family doctor. At that consultation, the applicant reported that he was generally feeling well and had no fatigue. The applicant also reported that he has not experienced weight loss. This is significant because these clinical notes contradict Dr. McDowall's observations that psychological symptomshave impacted the applicant's mood, severely interrupted his sleep, and caused fatigue and weight loss.

14The Psychological Assessment Report by Mr. Cook, dated May 5, 2023, diagnoses the applicant with Major Depressive Disorder, Posttraumatic Stress Disorder, and Somatic Symptom Disorder. Mr. Cook also notes symptoms such as apathy, being amotivational, and anhedonia. These symptoms are inconsistent with the clinical notes of Dr. Wong from a few days earlier. On April 28, 2023 the applicant reported that his mood has been "ok," that he is not experiencing anhedonia, and that he enjoys spending time with his kids.

15In my view, the inconsistencies in the psychological symptoms reported to both Dr. McDowall and Mr. Cook, and what is seen in Dr. Wong's clinical notes, undermine the existence of psychological symptoms. Consequently, I find that the applicant has not established, on a balance of probabilities, that he has accident related psychological impairments.

Chronic pain

16According to the applicant, he has had ongoing pain in his neck, chest, back, shoulders, and legs since the accident. He submits that these pain complaints establish that he suffers from chronic pain caused by the accident.

17Dr. Wong examined the applicant on May 19, 2022, the day after the accident. He documents pain in the applicant's left neck, chest, and left shoulder.

18Previously, on May 3, 2022, Dr. Wong's clinical notes document pre-accident left shoulder pain which had been ongoing for several years. In these notes, the applicant rates the intensity of his pre-accident left shoulder pain as being 5 out of 10. A year after the accident, Mr. Cook's report notes that the applicant rates his left shoulder pain as being a 6 out of 10. In my view, this evidence shows that the applicant's left should pain did not change after the accident. If this finding is incorrect, and his left shoulder pain did increase after the accident, then little weight can be given to this fact as the applicant has not explain what, if any, functional impairment has resulted from this slight increase in pain.

19The applicant did not report right shoulder pain during his May 19, 2022 consultation with Dr. Wong. This is significant because this consultation took place a day after the accident when Dr. Wong catalogued the applicant's accident related pain complaints. The applicant had a number of consultations Dr. Wong and was examined during an emergency room visit after May 19, 2022 but he did not report right shoulder pain until February 27, 2023. In my view, the lengthy gap in time between the accident and reporting right shoulder pain is an indication that this pain complaint is not accident related.

20Mr. Cook's report, written a year after the accident, notes that the applicant took a week off work after the accident because of his back pain. This report also states that the applicant has ongoing back pain caused by the accident. This is inconsistent with the clinical notes from Dr. Wong's consultations that took place throughout the year following the accident. No back pain is recorded in these notes. In light of this inconsistency, I find that the applicant does not have accident related back pain.

21There is a record of post-accident neck pain in the clinical notes of Dr. Wong and the treatment plan of Dr. McDowall. However, this injury appears to have resolved about seven months after the accident. The clinical notes of Dr. Paul Moroz, medical doctor at Mackenzie Richmond Hill Hospital, dated January 4, 2023 state that the applicant is moving his neck well with "no pain." The applicant does report neck pain after this hospital consultation. However, I find there is no clear nexus between his current neck pain and the accident as there is evidence that his neck injury had resolved by the start of 2023.

22Dr. McDowell records the applicant scraped his legs in the accident. There is no mention of leg pain in the clinical notes of Dr. Wong, the report of Mr. Cook, the treatment plan of Mr. Ahmed Afifi, physiotherapist, dated September 14, 2022, nor in the Confirmation of Treatment form of Dr. Richard Travaers, chiropractor, dated May 26, 2022. The applicant argues that he has ongoing leg pain caused by the accident. However, the absence of leg pain in the majority of the medical documents lead me to conclude, on a balance of probabilities, that the scraped legs noted by Dr. McDowell in the summer of 2022 have not resulted in ongoing pain complaints.

23The applicant reported chest pain to Dr. Wong during the consultation that took place on the day after the accident. This appears to have resolved by July 29, 2022 when the applicant reported that he has no "CP" which refers to chest pain. This is consistent with the treatment plan of Mr. Afifi, dated September 14, 2022, where the applicant does not report chest pain. The clinical notes of Dr. Moroz, from January 4, 2023 mention chest pain, but attributes this pain to a post-viral cough. The May 5, 2023 report of Mr. Cook also shows that the applicant does not report any chest pain. Likewise, there is no report of chest pain in the Confirmation of Treatment form of Dr. Travaers. As such, the majority of the medical evidence does not confirm the existence chest pain. For this reason, I find that the applicant does not have ongoing accident related chest pain.

24I have reviewed the pain complaints which the applicant attributes to the accident. The medical evidence shows that some of these have resolved. The remaining complains, in my view, do not have a clear link to the accident. For these reasons, I find that the applicant does not have chronic pain caused by the accident.

25Having found that the applicant does not have a psychological impairments, nor chronic pain caused by the accident, I further find that his accident related injuries are minor and treatable with the MIG.

26According to the Case Conference Report and Order, $604.00 remains for treatment within the MIG limits. This amount is insufficient to fund any of the treatment plans in dispute. For this reason, I find that the treatment plans are not payable because of the MIG funding cap.

Interest

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as there are no overdue benefits.

Award

28The 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.

29The applicant lists the following five factors to that he would like the Tribunal to consider in determining whether the respondent is liable to pay an award:

i. The insurer categorically ignores the medical records of all the Applicant's treating practitioners and assessors;

ii. The Applicant is vulnerable he has sustained serious injuries as a result of this accident;

iii. The weekly benefit has never been paid;

iv. The Tribunal need to set precedents to ensure deterrence to Insurers;

v. The Insurer acted in a highhanded manner.

30The applicant made no further submissions.

31The respondent submits that that there is no evidence to support a finding that it has unreasonably withheld the payment of any benefits.

32The applicant has listed the factors to be considered but he has not explained how these factors apply to his case. As such, the applicant has not provided a sufficient basis to persuade me that the respondent is liable to pay an award.

ORDER

33The applicant's injuries are minor and treatable within the MIG.

34The remainder of this application is dismissed.