Licence Appeal Tribunal File Number: 23-012114/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:
Yin Wu
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Ryan Olsen, Paralegal
For the Respondent:
Emily Schatzker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Yin Wu, the applicant, was involved in an automobile accident on June 26, 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, 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?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from February 3, 2023, to ongoing?
iii. Is the applicant entitled to $4,217.20 for Physiotherapy Services, proposed by Uhab Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated February 24, 2023?
iv. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated August 16, 2022?
v. Is the applicant entitled to $750.00 for prescription eyewear, submitted on a claim form (OCF-6) dated November 15, 2022?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not proven an injury that warrants removal from the MIG.
4The applicant has not proven entitlement to an income replacement benefit.
5As MIG limits have been exhausted, the applicant is not entitled to the disputed treatment plans or claim forms. As no benefits are overdue, there is no entitlement to interest.
PROCEDURAL ISSUES
6The respondent raises a procedural issue as the applicant has made submissions for an award under s.10 of Reg 664.
7An award under s.10 of Reg 664 was not indicated as an issue in dispute in the Case Conference Report and Order dated April 18, 2024.
8The applicant did not address this in their reply.
9In a Case Conference Report and Order released on April 18, 2024, the Tribunal ordered the issues in dispute as those contained in paragraph 2 of this decision.
10There was no motion filed to vary this order or add an award under s.10 as an additional issue in dispute.
11Therefore, I find that the issues in dispute will be limited to those as listed in the Order dated April 18, 2024 and will not include an award under s.10 of Reg 664.
ANALYSIS
The applicant has not proven injuries outside the MIG
12I find that the applicant has not proven injuries which warrant removal from the MIG.
13Section 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.”
14An 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.
15The applicant submits that he suffers from a psychological impairment resulting from the accident. He points to a psychological pre-screening report contained in the OCF-18 dated August 16, 2022.
16The applicant was seen for an interview conducted on July 28, 2022 by Ms. Meiling Kwan, social worker.
17Dr. Sharleen McDowall, clinical psychologist, completed a treatment and assessment plan and authored a pre-screening report. In this report, Dr. McDowall notes the applicant has developed psychological symptomatology as a result of the accident and recommended that he undergo a full psychological assessment to determine his clinical diagnosis.
18The respondent submits that the applicant has not suffered a psychological impairment and points to a s.44 psychological assessment conducted by Dr. Randy Silverman, psychologist. Dr. Silverman assessed the applicant on April 12, 2023 and found that the applicant does not possess a diagnosable DSM-5 Psychological Disorder.
19I prefer the report of Dr. Silverman. The pre-screening report is not corroborated by any contemporaneous reports of psychological symptoms.
20I give limited weight to Dr. McDowall’s assessment in the pre-screen report as she did not interview the applicant and there has been no report submitted as evidence from Ms. Kwan.
21I therefore find that the applicant has not proven on a balance of probabilities that they suffer a psychological impairment that warrants removal from the MIG.
The applicant has not proven entitlement to an IRB
22I find that the applicant is not entitled to an Income Replacement Benefit.
23To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
24The applicant submits that the OCF-3 completed by Dr. Richard Tavares, chiropractor, supports his entitlement to benefits.
25In this OCF-3, completed on July 12, 2022, Dr. Tavares wrote that the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident and within 104 weeks of the accident. Dr. Tavares further noted that the applicant is not able to return to work on modified hours or duties.
26The applicant further submits that Dr. McDowall, in her pre-screen report, noted that the applicant’s physical pain and psychological difficulties have resulted in an inability to return to his full-time pre-accident duties. I have previously mentioned that I give limited weight to Dr. McDowall’s comments as she did not interview the applicant.
27The respondent submits an assessment report of Dr. Deborah Rabinovitch, physiatrist as evidence the applicant has not suffered a musculoskeletal impairment. In addition, the respondent again directs the Tribunal to the psychological assessment of Dr. Silverman.
28Dr. Rabinovitch assessed the applicant on March 15, 2023. In her assessment, Dr. Rabinovitch found that the applicant did not suffer from a musculoskeletal impairment, and that he demonstrated full functional range of motion and strength throughout the examination.
29Dr. Silverman assessed the applicant on April 12, 2023 and found that the applicant does not possess a diagnosable DSM-5 Psychological Disorder.
30I note that the applicant has not made any further submissions or directed the Tribunal to additional medical documentation in support of his claim for an IRB.
31The only description of the applicant’s employment contained in submissions is that his duties involved managing teams and creating company goals and monitoring the team’s progress.
32The applicant has not identified the essential tasks of his employment, the tasks that he is unable to perform and the extent of which he is unable to perform them.
33Therefore, for the reasons above, I find on balance of probabilities that the applicant has not proven entitlement to an Income Replacement Benefit.
The applicant has not proven the denial was non-compliant with the Schedule
34I note that the applicant submits that the respondent failed to comply with s.36(4) of the Schedule in their denial of the IRB. The applicant makes mention of a denial letter sent on February 9, 2023. The applicant further submits that the respondent did not refer to medical reasons when denying the IRB in that letter.
35However, the denial letter was not submitted as evidence before the Tribunal. Nor was it referenced in the footnotes as the applicant had referenced other pieces of evidence.
36The applicant bears the onus of proving the denial was defective as per s.36(4). Without a copy of the letter to evaluate, I cannot make a finding on the letter’s compliance with the Schedule.
37Therefore, the applicant has not proven that the denial failed to comply with s.36(4) of the Schedule.
Disputed treatment plans and OCF-6
38As I have found that the applicant is subject to the MIG, and the respondent’s submissions identify that the MIG limits have been exhausted, it is not necessary for me to consider if the treatment plans or OCF-6 in dispute are reasonable and necessary.
Interest
39As no benefits are found to be overdue, there is no entitlement to interest.
ORDER
40For the reasons above, I find that the applicant:
i. Remains subject to the Minor Injury Guideline;
ii. Is not entitled to an IRB;
iii. Is not entitled to the disputed treatment plan or claim forms; and
iv. Is not entitled to interest.
41This application is dismissed.
Released: July 22, 2025
Julian DiBattista
Vice-Chair