Zi Ben He v. Economical Insurance, 2025 CanLII 526

Citation: He v. Economical Insurance, 2025 ONLAT 23-001087/AABS

Licence Appeal Tribunal File Number: 23-001087/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:

Zi Ben He

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Stephen Whibbs, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Zi Ben He, the applicant, has a claim arising out of an automobile accident on October 15, 2021, 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, Economical Insurance, 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 $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan/OCF-18 (“plan”) dated March 14, 2022?

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

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

RESULT

3The applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

4As the applicant is subject to the MIG, it is not necessary to consider whether the disputed plan is reasonable and necessary. It is not payable.

5As there are no overdue benefits, no interest is payable.

6The respondent is not liable to pay an award.

ANALYSIS

Applicability of the MIG

The applicant has not demonstrated that he suffers from accident-related injuries that warrant removal from the MIG

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.

9I find that the applicant has not demonstrated that his accident-related injuries and impairments require treatment beyond the MIG. I find that his submissions are predominantly based on a discussion of psychological disorders and emotional distress after his father’s death on January 13, 2022, as a basis for his removal from the MIG.

10To this end, the applicant relies solely on a psychological consultation report of Dr. Sharleen McDowall and a pre-screen report dated January 17, 2022 by Mandy Fang, social worker. I note that the interview and assessment for the psychological consultation report was also conducted by Ms. Fang.

11In response, the respondent relies on the Application for Accident Benefits (“OCF-1”) dated December 22, 2021, which indicates the applicant suffers from anxiety and depression as a result of his father’s accident and death. The respondent submits that there is a lack of medical evidence that the applicant’s injuries are causally related to the accident. The respondent further submits that there is no evidence that the applicant’s father passed away as a result of the accident, since his Medical Certificate of Death provides a cause of death as acute cardio disorder, and complications due to diabetes and hypertension. In addition, the Medical Certificate of Death indicates that the applicant’s father died at his residence, contrary to the applicant’s self-report to Ms. Fang that his father died in the hospital before he could visit him.

12The respondent also submits that the applicant has not provided medical documentation in support of a claim for accident-related psychological impairments to warrant removal from the MIG, and I agree. The respondent points to the clinical notes and records (“CNRs”) of Dr. Jason Lim, which indicate the applicant did not seek medical attention for a year after the accident on October 24, 2022. In addition, there is no mention of the applicant reporting psychological complaints to Dr. Lim after the accident.

13I give little weight to the applicant’s evidence because I find that in the psychological consultation report, Dr. McDowall relied on the applicant’s self-reports and she did not review any medical documentation from the applicant’s treating physicians. Dr. McDowall indicates that the applicant continued to work after the accident and he was unable to visit his father in the hospital before he died, due to COVID restrictions. Dr. McDowall further indicates that the applicant’s symptoms are a result of his father’s death. Dr. McDowall did not diagnose the applicant with an accident-related psychological impairment.

14I find that the evidence indicates that the applicant returned to full-time employment immediately after the accident and he did not mention any psychological complaints to Dr. Lim. I also find that the applicant provided inconsistent evidence to Ms. Fang regarding the reason for his symptoms and his inability to visit his father in the hospital before his father’s death.

15Overall, I find on a balance of probabilities that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG in the absence of any accident-related psychological impairment.

16Since 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. However, the parties make no submissions whether the MIG limit has been exhausted, and the applicant is entitled to treatment up to the MIG limits.

The applicant is not entitled to interest and an award

17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

18Under s.10 of Reg. 664, 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.

19Since no benefits have been unreasonably withheld or delayed, there is no interest payable.

20As the applicant has not shown that the respondent unreasonably withheld benefits, it is not liable to pay an award.

ORDER

21For the reasons set out above, I find that:

i. The applicant is subject to the MIG.

ii. The applicant is not entitled to the treatment plan in dispute.

iii. The applicant is not entitled to interest.

iv. An award is not payable.

v. The application is dismissed.