Licence Appeal Tribunal File Number: 23-008558/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:
De Quan Weng
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Samia Makhamra
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Emily Schatzker, Counsel
HEARD:
By way of Written Submissions
OVERVIEW
1De Quan Weng, the applicant, was involved in an automobile accident on June 10, 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, Co-operators General 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for Physiotherapy Services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated August 19, 2021?
iii. Is the applicant entitled to $4,576.71 for Chiropractic Services, proposed by Total Recovery Rehab Centre in a plan dated September 20, 2021?
iv. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Somatic Assessments and Treatment Clinic in a plan dated July 21, 2021?
v. Is the applicant entitled to $90.25 for medication, submitted on a claim form (OCF-6) dated July 24, 2021?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
4As the applicant is in the MIG, it is not necessary for me to consider whether the treatment plans and claim form in dispute are reasonable and necessary.
5The respondent is not liable to pay an award.
6The applicant is not entitled to interest as there are no overdue payments of benefits.
ANALYSIS
The applicant’s injuries fall within the MIG
7I find that the applicant’s injuries fall within the MIG.
8Section 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 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”.
9An insured person 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 from their minor injury if they are kept with 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.
10The clinical notes and records indicate that the applicant suffered minor injuries from the accident. Dr. Li, a family doctor who saw the applicant on July 24, 2021, a few weeks following the accident, diagnosed him with sprain and strain as a result of the accident. Dr. Li also provided a diagnosis of post-traumatic stress disorder following complaints of difficulty sleeping and low mood. The applicant saw Dr. Li again on October 14, 2021 for complaints of pain and neck stiffness. He did not see Dr. Li again until he was involved in a subsequent car accident on June 6, 2022.
11The applicant underwent insurer’s examinations under s.44, wherein both specialists concluded that his injuries were minor and required no additional treatment. Dr. Raymond Zabieliauskas, physical medicine and rehabilitation specialist, assessed the applicant on September 16, 2021. While he noted that the applicant was experiencing some residual pain, he indicated that the physical examination was within normal limits, with essentially no impairments from the accident. Overall, he found the applicant’s injuries were minor in nature. He also noted that the applicant continued to drive, continued with his work as a massage therapist, and concluded that no additional treatment was necessary.
12Dr. Kehinde Adekunle Aladetoyinbo, psychiatrist, saw the applicant on February 3, 2022 for an assessment. Dr. Aladetoyinbo noted that the applicant reported no distressing dreams or negative beliefs. Based on his assessment, Dr. Aladetoyinbo concluded that the applicant did not have any psychiatric diagnosis or impairment. Of note, while the applicant’s score on a self-rated questionnaire was suggestive, but not diagnostic, of moderate depression, this assessor noted that the score was at variance with the applicant’s presentation and his ability to engage in activities of daily living, explaining the lack of a psychiatric diagnosis. In other words, the records from Dr. Li as well as the assessment reports from Dr. Zabieliauskas and Dr. Aladetoyinbo indicate that the applicant did not sustain a psychological impairment from the accident, nor did he suffer from chronic pain.
13The applicant submits he should be removed from the MIG based on a psychological impairment. He relies on a psychological consultation report prepared by Dr. Sharleen McDowall, C. Psych., who saw him on July 7, 2021. Dr. McDowall indicated that the applicant was experiencing many of the symptoms from post-accident psychological impairment, and recommended he be removed from the MIG. She also recommended he undergo a psychological assessment to determine his clinical diagnosis and psychological treatment needs.
14The applicant also submits he should be removed from the MIG due to chronic pain. He relies on the clinical notes and records from Dr. Li, noting continued pain in the back, neck and shoulder areas that persisted for several months after the accident.
15I disagree with the applicant’s position as I am persuaded by the conclusions of the s. 44 assessors. Regarding a psychological impairment, I prefer the report of Dr. Aladetoyinbo who saw the applicant several weeks after he saw Dr. McDowall, and, based on his assessment, concluded there was no psychiatric diagnosis. In addition, there is no evidence of chronic pain in the clinical notes and records provided. Here, I am not persuaded because the applicant also relies on notes from Dr. Li that are dated after he was in a subsequent motor vehicle accident, in June of 2022. I prefer the report of Dr. Zabieliauskas, who examined him about three months after the accident in question and concluded that his injuries were minor in nature.
16Taken together, I find the applicant has not demonstrated that he should be removed from the MIG.
17As the applicant is held to the funding limit of the MIG, it is not necessary for me to consider the reasonable and necessary nature of the treatment plans and claim form in dispute. Additionally, as there are no overdue payments, no interest is owing.
The insurer is not liable to pay an award
18The applicant is seeking 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.
19In examining whether an insurer’s conduct in withholding or denying a benefit warrants an award, the case law is well established that the insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate”
20I do not find that an award is payable in this case, as there are no benefits owed to the applicant.
ORDER
21Based on the above, I order the following:
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
As the applicant is in the MIG, it is not necessary for me to consider whether the treatment plans and claim form in dispute are reasonable and necessary.
The respondent is not liable to pay an award.
The applicant is not entitled to interest as there are no overdue payments of benefits.
The application is dismissed.
Released: July 3, 2025
Samia Makhamra
Adjudicator```