Min v. Jevco Insurance Company, 2025 CanLII 8019

Licence Appeal Tribunal

Citation: Min v. Jevco Insurance Company, 2025 ONLAT 23-004434/AABS

Licence Appeal Tribunal File Number: 23-004434/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:

Ziwen Min Applicant

and

Jevco Insurance Company Respondent

DECISION

ADJUDICATOR: Raymond Selbie

APPEARANCES:

For the Applicant: Raymond Luk, Counsel

For the Respondent: Michael Courneyea, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ziwen Min, the applicant, was involved in an automobile accident on March 16, 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, Jevco 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 that the MIG limits have been exhausted.

ii. Is the applicant entitled to $3,164.34 for physiotherapy service, proposed by Dr. Georgia Palantzas in a treatment plan/OCF-18 (“plan”) dated September 3, 2022, and denied November 11, 2022?

iii. Is the applicant entitled to $2,144.93 for a psychological assessment, proposed by Dr. Leon Steiner in a plan dated February 10, 2023, and denied April 17, 2023?

iv. Is the applicant entitled to $3,293.04 for psychological services, proposed by Midland Wellness Centre in a plan dated May 26, 2023, and denied June 12, 2023?

v. Is the applicant entitled to $2,164.00 for a chronic pain assessment, proposed by Midland Wellness Centre in a plan dated May 17, 2023, and denied August 1, 2023?

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

3I find that the applicant sustained a psychological impairment that exceeds the definition of a minor injury as found in the Schedule.

4I find that the applicant is entitled to $3,164.34 for physiotherapy services, proposed by Dr. Georgia Palantzas in a treatment plan/OCF-18 (“plan”) dated September 3, 2022, and denied November 11, 2022.

5I find that the applicant is entitled to $2,144.93 for a psychological assessment, proposed by Dr. Leon Steiner in a plan dated February 10, 2023, and denied April 17, 2023.

6I find that the applicant is entitled to $3,293.04 for psychological services, proposed by Midland Wellness Centre in a plan dated May 26, 2023, and denied June 12, 2023.

7I find that the applicant is entitled to $2,164.00 for a chronic pain assessment, proposed by Midland Wellness Centre in a plan dated May 17, 2023, and denied August 1, 2023.

8I find that the applicant is not entitled to an award.

9I find that the applicant is entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline (MIG)

10I find that the applicant sustained a psychological impairment requiring treatment that exceeds the definition of a minor injury as found in the Schedule.

11The MIG establishes a framework available to injured persons who sustained a minor injury as result of an accident. A ‘minor injury’ is defined in s. 3(1) of the Schedule as ‘one or more of a strain, sprain, whiplash associated disorder, a contusion abrasion, laceration, subluxation, and includes any clinically associated sequelae to such injury’.

12Section 18 (1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can just demonstrate with compelling evidence that a pre-existing condition, documented by a medical practitioner, prevents maximum recovery of any accident-related minor injury under the MIG or if they can provide evidence of a non-minor injury, such as a psychological impairment or chronic pain with a fundamental impairment. The burden to establish entitlement to coverage beyond the $3,500.00 cap rests on the applicant on the balance of probabilities.

13The applicant submits that she has sustained an injury that results in chronic pain and psychological impairment that do not constitute ‘minor injuries’ per s. 3(1) of the Schedule and therefore she should be removed from the MIG.

14The applicant submits that she suffers from a psychological impairment as a result of the accident. The applicant submits that she attended upon the Shenzhen Boa’an Peoples Hospital in China resulting in a Certificate of Disease Diagnosis dated January 6, 2023, that diagnosed a traumatic stress disorder resulting from the accident. The applicant has attempted to obtain the clinical notes and records from that hospital without success. The applicant further attended upon Dr. Leon Steiner, psychologist, who in his report of May 3, 2023, diagnosed an ‘adjustment disorder with mixed anxiety and depressed mood as well as specific phobia, situational’. The applicant further points to the respondent’s IE assessment by Dr. Rahesh K. Ratti, psychologist conducted March 20, 2023, which shows that he did not administer a Millon Clinical Multiaxial Inventory -III screening tool to provide a mental health diagnosis. Dr. Ratti acknowledges that he did not administer this diagnostic tool due to ‘language specific limitations’. It further is evident that the applicant requested an interpreter for her visit to Dr. Ratti and the interpreter was not provided. The applicant further points out that in the IE assessment by Dr. James Choi, general practitioner, dated October 27, 2022, he opines that the applicant may benefit from ‘a psychiatric evaluation to aid with her anxiety related to driving’ and further in the report dated November 11, 2022, ‘her prognosis is somewhat guarded, given the suboptimal pace of recovery to date’.

15The respondent submits that the psychological complaints were not reported until at least nine months after the accident and further that there were no clinical notes and records provided from the Shenzhen Boa’an People’s Hospital. Further the applicant attended upon Dr. Choi for three IE assessments, all of which dealt with the physical injuries which can be properly treated under the MIG. Further, that the applicant did not complain of psychological problems to providers in Canada. The applicant further attended on an IE independent psychological assessment by Dr. Ratti who concluded that there was no evidence that psychological factors result in any functional limitations.

16I have weighed the evidence from the applicant and respondent as follows:

a) The pleadings of the applicant are based on the findings of the Shenzhen Boa’an Peoples Hospital coupled with the findings of Dr. Steiner and, the opinion of Dr. Choi, the s. 44 assessor that the applicant may benefit from a psychiatric assessment.

b) The pleadings of the respondent review the s. 44 assessments of Dr. Choi to establish that there is no finding of physical injuries that would require treatment outside the MIG and the finding of Dr. Ratti does not find psychological impairments which require treatment outside the MIG.

c) I find that the applicant has met the onus upon her on the balance of probabilities that she suffers from psychological impairments which require treatment outside the MIG.

Physiotherapy service proposed by Dr. Georgia Palantzas for $3,164.34

17The applicant submitted an OCF-18 (“plan”) dated September 3, 2022, and denied November 11, 2022, for physiotherapy services proposed by Dr. Georgia Palantzas, chiropractor for $3,164.34.

18The plan is to provide the assessment together with 16 sessions of muscle stimulation, 16 sessions of exercise and the provision of documentation to support the activity. The plan confirms that the applicant has significant weakness and reduction of ability to conduct normal daily activities. More extensive therapy is therefore advised.

19Sections 14-15 of the Schedule provide that the insurer shall pay for medical and rehabilitation benefits to or on behalf of the applicant so long as the applicant sustains an impairment as the result of the accident and the expense of the incurred benefit is reasonable and necessary.

20The respondent relies on the IE assessment of Dr. Choi to deny the plan as applicant has not suffered injuries that cannot be treated within the MIG.

21The applicant relies on the comments of Dr. Palantzas as well as the IE findings of Dr. Ratti where he opines that the applicant’s ‘scores are compatible to what is reported by individuals with chronic pain, interference in activities due to pain, perceived pain, perceived control over her life, affective distress, and support from significant other’.

22I have found that the MIG limits have been exhausted, the applicant has suffered a psychological impairment that cannot be treated under the MIG. There is sufficient evidence of chronic pain and perceived pain with interference in daily activities supported by Dr. Palantzas and Dr. Ratti to fulfill the onus on the applicant to demonstrate that the plan is reasonable and necessary.

Psychological service proposed by Dr Leon Steiner for $2,144.93

23The applicant submitted an OCF-18 (“plan”) dated February 10, 2023, and denied April 17, 2023, for a psychological assessment proposed by Dr. Leon Steiner, psychologist for $2,144.93.

24The plan proposes an assessment of the applicant’s mental health and addiction status and time to prepare, plan and document the assessment.

25In support of the plan, the applicant relies on the Certificate of Disease Diagnosis from the Shenzhen Boa’an Peoples Hospital finding of a psychological impairment; the finding of Dr. Steiner who diagnosed an adjustment disorder with mixed anxiety and depressed mood as well as a specific phobia, situational; and the opinion of IE examiner Dr. Choi that the applicant may benefit from psychiatric evaluation to aid with her anxiety relating to driving. Further, the applicant submits that Dr. Ratti admitted that he did not conduct a Millon Clinical Multiaxial Inventory -III screening test due to ‘language specific limitations’. The applicant did request an interpreter be provided and this request was not complied with.

26The respondent relies on the fact that the psychological complaints appeared almost nine months after the accident, and the IE assessor, Dr. Ratti did not support a diagnosis of psychological impairment as the result of the accident.

27I find that the evidence of the applicant is more compelling than the position of the respondent. Both respondent’s insurer examinations acknowledge limitations of their examinations when discussing the possibility of psychological injuries which should be further investigated. I find that the applicant has satisfied the onus to establish that the plan complies with sections 14.1 and 15.(1)(b) of the Schedule. I find that the applicant has demonstrated the entitlement for this treatment plan as reasonable and necessary.

Psychological services proposed by Midland Wellness Centre for $3,293.04

28The applicant submitted an OCF-18 (“plan”) dated May 26, 2023, and denied June 12, 2023, for psychological services proposed by Midland Wellness Centre.

29The plan lists adjustment disorder and specific phobias and proposes a 12 1.5-hour sessions of mental health treatments along with a documentation support activity.

30In support of the plan, the applicant relies on the Certificate of Disease Diagnosis from the Shenzhen Boa’an Peoples Hospital finding of a psychological impairment; the finding of Dr. Steiner who diagnosed an adjustment disorder with mixed anxiety and depressed mood as well as a specific phobia, situational; and the opinion of Dr. Choi that the applicant may benefit from psychiatric evaluation to aid with her anxiety relating to driving.

31The respondent relies on the fact that the psychological complaints appeared almost nine months after the accident, Dr. Ratti did not support a diagnosis of psychological impairment as the result of the accident.

32I find that the evidence of the applicant is more compelling than the position of the respondent. Both respondent’s insurer examinations acknowledge limitations of their examinations when discussing the possibility of psychological injuries which should be further investigated. I find that the applicant has satisfied the onus to establish that the plan complies with sections 14.1 and 15.(1)(b) of the Schedule. I find that the applicant has demonstrated the entitlement for this treatment plan as reasonable and necessary.

Chronic pain assessment proposed by Midland wellness Centre for $2,164.00

33The applicant submitted an OCF-18 (“plan”) dated May 17, 2023, and denied August 1, 2023, for a chronic pain assessment proposed by Midland Wellness Centre for $2,164.00.

34The plan is to provide a chronic pain assessment, and documentation of the findings with a proposed duration of one week.

35In support of the plan, the applicant relies on the opinion of Dr. Ratti who opines that the results of his findings were consistent with other individuals with chronic pain and the fact that the IE examination Dr. Choi of July 19, 2023, did not comment on the findings of Dr. Ratti.

36The respondent relies on the second chronic pain assessment of Dr. Choi. The respondent further argues that the applicant has not been formally diagnosed with chronic pain by any of her treating doctors.

37I have found that the MIG limits have been exhausted, the applicant has suffered a psychological impairment that cannot be treated under the MIG. There is sufficient evidence of chronic pain and perceived pain with interference in daily activities supported Dr. Ratti which are not challenged by Dr Choi. I find that the applicant has demonstrated compliance with sections 14.1 and 15.(1)(b) of the Schedule. I find that the applicant has demonstrated that the plan is reasonable and necessary.

Award

38The 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. The applicant submits that the respondent ignored the reports from the ongoing and updated medical information provided by the applicant. The respondent submits that there is no basis for the award claim in that all medical information provided by the applicant was taken into consideration in making decisions.

39I find that, given the passage of events between the parties, there is insufficient evidence of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate conduct by the insurer as outlined in [K.M.] v. Aviva Insurance Canada, 2023 CanLII 60250 (ON LAT) to warrant an award. There will be no award pursuant to Regulation 664.

Interest

40Considering that the treatment plans set forth in paragraphs 3 (ii), (iii), (iv), and (v) are reasonable and necessary, it follows that the applicant is entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

ORDER

41I find that:

i. The applicant’s psychological injuries are not minor as defined in s. 3(i) of the Schedule and therefore the applicant’s injuries are not subject to treatment within the $3,500.00 Minor Injury Guideline limit.

ii. The applicant is entitled to $3,164.34 for physiotherapy services, proposed by Dr. Georgia Palantzas in a plan dated September 3, 2022, and denied November 11, 2022.

iii. The applicant is entitled to $2,144.93 for psychological services, proposed by Dr. Leon Steiner in a plan dated February 10, 2023, and denied April 17, 2023.

iv. The applicant is entitled to $3,293.04 for psychological services, proposed by Midland Wellness Centre in a plan dated May 26, 2023, and denied June 12, 2023.

v. The applicant is entitled to $2,164.00 for a chronic pain assessment, proposed by Midland Wellness Centre in a plan dated May 17, 2023, and denied August 1, 2023.

vi. The applicant is not entitled to an award.

vii. The applicant is entitled to interest on any overdue payment of benefits.