Licence Appeal Tribunal File Number: 22-005479/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:
Xiang Ming Wu
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR:
Rasha El Sissi
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Thulasi Kandiah, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Xiang Ming Wu, 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, Allstate Canada, 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 $4,195.12 for physiotherapy services, proposed by Total Recovery Rehab Centre in an OCF-18/treatment plan (“treatment plan”) dated July 16, 2021?
iii. Is the applicant entitled to $2,200.00 for Psychological Assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated July 21, 2021?
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
3I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute; and
iii. The applicant is not entitled to interest or an award.
ANALYSIS
The MIG
4Section 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.”
5The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under s. 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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.
6The applicant submits she should be removed from the MIG on the basis that she has sustained psychological impairments and suffered a concussion as result of the accident.
Removal from the MIG due to a psychological condition
7I find that the applicant has not established on a balance of probabilities that she has psychological impairments that warrant removal from the MIG.
8The applicant relies on the clinical notes and records (“CNR”) of Dr. Raymond Tsang, the applicant’s family physician. The applicant also relies on the report of Dr. Munachiso Uhoegbu, psychiatrist, who conducted a psychiatric consultation on July 28, 2022. This consultation took place during the applicant’s attendance at Peterborough Regional Health Centre from July 27 to August 3, 2022, due to a threat of self-harm following a confrontation with her son.
9The applicant submits that she complained to Dr. Tsang about insomnia, worsened memory, avoidance behaviour and low appetite as a result of the accident. The applicant submits that Dr. Uheogbu diagnosed the applicant with major depressive disorder – moderate intensity.
10As evidence, the applicant also points to a report by Ms. Katrina Tripple, social worker at Peterborough Regional Health Centre that, since the accident, the applicant’s son has been disappointed, angry and impatient with her.
11The applicant’s submissions indicate that the source of the applicant’s psychological impairment is how the accident affected her and her son’s relationship.
12The respondent submits that the applicant and her son’s relationship had been tumultuous prior to the accident. In support, the respondent points to reports made by the applicant while attending Peterborough Regional Health Centre.
13In Dr. Uheogbu’s psychiatric report, the accident is mentioned as part of the applicant’s medical history but is not otherwise referred to. The notes of Dr. Andrew John Romanowski, emergency room physician at Peterborough Regional Health Centre, indicate that the conflict between the applicant and her son is the primary cause of her self-harm threat. There is no mention of the accident.
14I do not place weight on the statement to Ms. Tripple because I find it is not supported by the preponderance of medical evidence before me which does not reference the accident in relation to the applicant’s psychological issues or the breakdown in the relationship with her son.
15As further evidence, the applicant points to the section 44 psychiatric IE report of Dr. Ariel Zielinsky, psychiatrist, dated May 9, 2023. The applicant submits that, in numerous places in Dr. Zielinsky’s report, he states that the applicant reported that her relationship with her son deteriorated since the accident.
16The respondent submits that the applicant minimized the extent of her pre-existing and concurring mental health issues in her interview with Dr. Zielinsky. The respondent points to the hospital reports of pre-existing personal trauma and struggles experienced by the applicant prior to the accident, both related and unrelated to the relationship with her son, which also are described in Dr. Zielinsky’s report.
17Dr. Zielinsky concluded that the applicant’s psychological issues were not related to the accident, but rather to other stressors, including her conflict with her son, financial issues and a recent violent break-in at her house.
18I place more weight on Dr. Zielinsky’s conclusion than the notes of Ms. Tripple because he is a psychiatrist, he interviewed the applicant and his findings are consistent with the preponderance of the medical evidence before me. The CNR of Dr. Tsang, Dr. Uheogbu’s report and the notes of Dr. Romanowski do not connect the applicant’s psychological issues specifically to the accident or to a breakdown in their relationship since the accident.
19The applicant submits that the facts in her case are similar to those in E.J. v. Economical Insurance, 2022 CanLII 23405 (ON LAT). In that decision, the Tribunal held that assaults on the applicant E.J. by family members, which contributed to her psychological injuries, would not have arisen but for the accident.
20The respondent distinguishes E.J. v. Economical Insurance because both parties’ experts concluded that E.J.’s psychological injuries were a direct result of the accident. Also, the respondent distinguishes E.J. v. Economical Insurance because E.J. did not have any other personal difficulties affecting her psychological functioning other than her family members’ assaults.
21Although I am not bound by other Tribunal decisions, I find the respondent’s submissions distinguishing the case to be persuasive. In this case, as set out above, I find the medical evidence does not support that the applicant has a psychological impairment because of the accident.
22As a result, on a balance of probabilities, I find that the applicant has not met her burden of proof to show that she suffered a psychological impairment because of the accident that warrants removal from the MIG.
Removal from the MIG due to a concussion
23I find that the applicant has not proven that she suffered a concussion in the accident that warrants removal from the MIG.
24The applicant relies on Dr. Tsang’s telephone encounter note on August 21, 2021, almost six weeks after the accident. Dr. Tsang noted sleep deterioration, dizziness, tinnitus, worsened memory, low appetite and headaches. Dr. Tsang noted that these complaints are “likely concussion symptoms”. There is no definitive diagnosis of concussion or concussion-related syndrome in evidence.
25The applicant submits that she complained of headaches and dizziness on the day of the accident and points to the CNR of Markham Stouffville Hospital. However, the applicant did not pinpoint any specific references in the CNR and I was not able to find notes of headaches and dizziness in the hospital’s records from the applicant’s document brief.
26On January 13, 2022, the applicant consulted with Dr. Lui, otolaryngologist. He assessed her and noted dizziness and tinnitus. On January 20, 2022, the applicant underwent an MRI due to ongoing dizziness, which revealed white matter lesions. There is no evidence connecting these symptoms or the lesions to a concussion suffered in the accident.
27Therefore, I find that on a balance of probabilities, there is insufficient evidence to support that the applicant suffered a concussion in the accident, and therefore the applicant remains subject to the MIG.
The plans in dispute (OCF-18s)
28As the applicant remains within the MIG and its $3,500.00 limit, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, the applicant is not entitled to any interest.
Award
30The 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. As no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
31I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute; and
iii. The applicant is not entitled to interest or an award.
Released: July 23, 2025
Rasha El Sissi
Adjudicator