Citation: Li v. Co-operators General Insurance Company, 2025 ONLAT 23-006394/AABS

Licence Appeal Tribunal File Number: 23-006394/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:

Kwok Piu Li

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Aylina Dhanji, Counsel

For the Respondent:

Julianne Brimfield, Counsel

Heard In Writing:

By written submissions

OVERVIEW

1Kwok Piu Li, the applicant, was involved in an automobile accident on September 12, 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 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? The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $4,816.71 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated October 13, 2021?

iii. Is the applicant entitled to $4,700.08 for chiropractic services, proposed by Total Recovery Rehab Centre in a plan dated December 13, 2021?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan dated November 19, 2021?

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?

3The parties advise that issue 5 on the Case Conference Report and Order, dated January 10, 2024, was resolved prior to the hearing.

RESULT

4The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG limit.

5The remainder of this application is dismissed.

ANALYSIS

MIG

6The applicant’s injuries are predominantly minor and treatable within 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. 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 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.

9The applicant argues that he should be removed from the MIG because he suffers from chronic pain and psychological impairments as a result of the accident.

10The respondent argues that the applicant has failed to provide compelling medical evidence to prove that his injuries fall outside the MIG.

11Regarding chronic pain, the applicant refers to the clinical notes of Dr. Jawaid, and the opinions of Dr. Stefurak, Dr. Palantzas, and Dr. McDowall which, in his view, document ongoing pain in his back, arm, and left leg.

12The applicant cites the clinical notes and records of Dr. Fahad Jawaid, his family doctor, from September 14, 2021 to January 16, 2024. The following is from these clinical notes and records:

• September 14, 2021: Left hand swelling and tenderness. The applicant “denies any trauma or injury.” An x-ray dated September 15, 2021 opines that the applicant’s left wrist has degenerative changes. There is no indication that the applicant reported being in an accident just two days before on September 12, 2021.

• October 7, 2021: foot pain and left hip pain are noted. Range of motion for left hip is “intact.” Gait is normal. There is no mention of the accident.

• December 2021: “Lower back pain after a fall.” The accident is not mentioned.

• April 13, 2022: “Patient also having back pain – this is chronic for him.” No mention of the accident.

• November 9, 2022: “Chronic back pain triggered from time to time.” Also states “Gait not effected, he continues to remains (sic) very active.” No mention of the accident.

• July 6, 2023: “Patient has chronic back pain. Requesting renewal of Tylenol which works well for him.” No mention of the accident.

• January 16, 2024: “He also reports having chronic LBP, having to rely on Advil and Tylenol almost daily to control pain.” No mention of the accident.

13These clinical notes do not mention the accident, and as such, do not establish a nexus between the applicant’s pain complaints and the accident.

14Dr. Jawaid documents pre-existing back pain at various times in clinical notes that pre-date the accident, such as on December 18, 2019, January 20, 2020, and March 6, 2021. The applicant’s back pain was diagnosed as sciatica about 10 months before the accident in the Fracture Clinic Report of Dr. James Seligman, dated November 30, 2020.

15The clinical notes of Dr. Jawaid show that the applicant continues to experience back pain from sciatica, but there is no reported increase in back pain after the accident. The notes also show that the applicant manages his pre-existing sciatic pain with the use of over-the-counter pain medication such as Tylenol and Advil. Additionally, the notes give little indication of his back pain effecting his functional abilities. In particular, the note of November 9, 2020 states that the applicant’s gait is not effected by back pain and that he remains very active.

16The letter of Dr. Taresa Stefurak, neurologist, dated February 28, 2024 states that the applicant reported his pre-existing back pain got worse after the accident. This is inconsistent with the clinical notes of Dr. Jawaid, which do not record an increase in back pain at the time of the accident. There is also no indication that the applicant sought treatment or pain medication to treat an increase in back pain. I give more weight to Dr. Jawaid’s clinical notes, which do not document an increase in back pain just after the accident, as those notes are contemporaneous with the accident.

17The notes of Dr. Jawaid from December 2021 document “Lower back pain after a fall.” This is significant as the notes provide no indication of an increase in back pain after the accident, however, about two months after the accident, the applicant does report an increase in low back pain that resulted from a fall. Given these circumstances, it is reasonable to find that this post-accident fall, and not the accident, caused an increase in back pain. For these reasons, I find that any increase of back pain noted in the letter of Dr. Stefurak was likely caused by the fall and not the accident.

18I also note that Dr. Stefurak does not make a chronic pain diagnosis and there is no evidence of a functional impairment related to the accident. As such, this does not support the applicant’s position that he should be removed from the MIG due to chronic pain.

19The applicant further relies on the Disability Certificate (OCF-3) Dr. Georgia Palantzas, chiropractor, dated October 13, 2021 where she opines:

Pre-existing lumbar fracture, severe injuries, radiculopathy, psychological and marked decrease in ADL capacity, he will have difficulty engaging in pre-accident activities…

At the time of the examination, the patient appears to have difficulty with sustained postures, standing, walking, sitting, bending, lifting, carrying, pushing, squatting and overhead activities.

Decrease in normal life functional capacity: housekeeping

Due to the quantity and severity of injuries in conjunction with the presence of neurological symptoms it is expected that the patient will not be able to achieve complete functional restoration in the 12 week time frame.

20Dr. Palantzas describes the applicant as having a marked decrease in his ability to function due to the severity of his injuries. This is in stark contrast to the clinical notes of Dr. Jawaid who examined the applicant in the years before the accident, during the time of the accident, and after the accident. The applicant does not report an accident-related increase in pain to Dr. Jawaid. I give more weight to his clinical notes because he saw the applicant on numerous occasions over a lengthy period of time and is better positioned to describe the applicant’s physical condition than Dr. Palantzas.

21The applicant further relies on the treatment plan (OCF-18) for a psychology assessment and report by Dr. Sharleen McDowall, psychologist, dated November 19, 2021. The Pre-screening Report attached to the OCF-18 documents pain in his left leg and left hand and notes that the applicant reports this pain as being unbearable, to the point where it makes him cry. This report is dated November 19, 2021 which is about two months after the accident. As such, this Pre-screening Report does not confirm ongoing, chronic pain as it was completed soon after the accident.

22I also note that the significant increase in pain that is documented in the Pre-screening Report is inconsistent with the clinical notes of Dr. Jawaid which document no such increase in pain caused by the accident. As stated above, I prefer the clinical notes of Dr. Jawaid because he examined the applicant numerous times before and after the accident and this puts him in a better position to describe the applicant’s physical condition. As such, I give little weight to the pain reported in Dr. McDowall’s Pre-screening Report.

23Consequently, there is no chronic pain diagnosis. There is no persuasive evidence that the applicant has a functional impairment as a result of the accident. Moreover, I give full weight to the clinical notes of Dr. Jawaid, and as such, find the other reports of accident-related pain are not persuasive. For all these reasons, I find that the applicant has not established, on a balance of probabilities, that the accident caused a chronic pain injury.

24The applicant also argues that he sustained a severe psychological injury in the accident. He cites the OCF-18 of Dr. McDowall which documents poor quality of sleep, nightmares, emotional distress, sadness, anxiety, frustration, irritability, hyper-vigilance, feelings of uselessness, helplessness, and powerlessness. He also relies on the OCF-3 of Dr. Palantzas who diagnosed the applicant with a concussion causing headaches, dizziness, attention deficit, nausea, balance problems, sensitivity to light, sensitivity to noise, concentration problem, fatigue and low energy, irritability, sadness, and nervousness directly related to the car accident. In his view, this evidence establishes that he has psychological injuries caused by the accident.

25The OCF-18 documents psychological symptoms reported by the applicant. Dr. McDowall attributes these symptoms to the accident. However, there is no indication that she ever assessed and diagnosed the applicant. The OCF-18 states that the applicant was interviewed by Yvonne Ma, a registered psychotherapist, who is not qualified to diagnose mental health conditions. As such, there is no indication that the applicant’s reported symptoms have been verified and meaningfully assessed. There is also no indication of how these symptoms can be attributed to the accident. Given these circumstances, I find that the OCF-18 is not compelling evidence of an accident related psychological injury.

26The OCF-3 of Dr. Palantzas diagnoses the applicant with a concussion and attributes serious behavioural disorders on this neurological injury. I note that Dr. Palantzas is a chiropractor and she is not qualified to diagnose neurological injuries or associated sequelae. For this reason, I give no weight to her diagnosis, as there are no other reports of concussion or concussion-related symptoms in the medical evidence before me.

27Having found that the OCF-18 and OCF-3 are not persuasive, I further find that the applicant does not have an accident related psychological injury.

28The applicant has not established, on a balance of probabilities, that he has chronic pain or a psychological injury caused by the accident. Consequently, I find that his injuries are predominantly minor and subject to treatment within the MIG limit.

29The applicant argues, for various reasons, that the three treatment plans in dispute are reasonable and necessary. The applicant further argues that the insurer has not provided medical reasons, nor any the other reasons for the denials. Consequently, he argues that the insurer is subject to section 38(11) of the Schedule.

30I disagree. The insurer letters, dated October 19, 2021 and December 17, 2021, regarding the two treatment plans for chiropractic services ask for specific documents, such as an OHIP and prescription summaries, to determine whether this treatment is reasonable and necessary. The applicant has not indicated if these documents were provided. If they were provided, the applicant has not advised how the respondent subsequently adjusted these claims. The same applies for the insurer letter dated November 20, 2021 for the psychological treatment. In my view, requesting specific documents to further adjust the claim is distinguishable from the circumstance in s. 38(11) where insufficient reasons results in the insurer having to pay for incurred treatment.

31Even if s. 38(11) did apply, which it does not, I still cannot order payment as there is no evidence that the disputed treatment plans were incurred.

32The respondent argues that its denials occurred while the applicant was entitled to receive services under the MIG. It submits that under section 38(6), its denial is final and not subject to review.

33Section 38(6) of the Schedule applies to treatment under the MIG. If the applicant is seeking treatment beyond the MIG limits, then s. 38(6) does not apply. The respondent made submissions on s. 38(6) but has not pointed to any evidence that confirms these refusals occurred while the applicant was being treated in the MIG. As such, there is an insufficient basis to find that these refusals are not subject to review by the Tribunal.

34In any event, the MIG funding limit is exhausted. Having found that the MIG limit applies, I further find that the reasonable and necessary analysis is not required.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, I find that the applicant is not entitled to interest.

Award

36The 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.

37The applicant advances the following factors for an award:

• The insurer categorically ignores the medical records of all the applicant’s treating practitioners and assessors;

• The applicant is vulnerable he has sustained serious injuries as a result of this accident;

• The weekly benefit has never been paid;

• The Tribunal needs to set precedents to ensure deterrence to Insurers;

• The respondent acted in a highhanded manner.

38The applicant lists the factors for an award but makes no submissions on how these factors applies to his case. Consequently, he has provided no basis for me to find that the respondent is liable to pay an award.

ORDER

39The applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG limit.

40The remainder of this application is dismissed.