Citation: Hong v. Economical Insurance, 2025 ONLAT 23-009759/AABS

Licence Appeal Tribunal File Number: 23-009759/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:

Jimmy Hong

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR:

Trina Morissette, Vice-Chair

APPEARANCES:

For the Applicant:

Maria Makarova, Paralegal

For the Respondent:

Mirsa Duka, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jimmy Hong, the applicant, was involved in an automobile accident on September 8, 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, Economical Insurance, and applied to the Licence Appeal Tribunal (the Tribunal) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

i. Are the applicant’s injuries predominantly minor as defined in section 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 limit has been exhausted.

ii. Is the applicant entitled to physiotherapy services, proposed by Seksek Chiropractic Professional Corporation, as follows:

(a) $279.50 ($1,317.50 less $1,038.00 approved) proposed in a treatment plan/OCF-18 (plan) dated December 20, 2022; and

(b) $2,819.75 proposed in a plan dated March 2, 2023?

iii. Is the applicant entitled to $3,024.59 for psychological services, proposed by E-Clinic in a plan dated February 17, 2023?

iv. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Q Medical in a plan dated October 26, 2022?

v. Is the applicant entitled to $1,995.93 for a mental health assessment, proposed by Seksek Chiropractic Professional Corporation in a plan dated January 24, 2023?

vi. Is the respondent liable to pay an award under section 10 of Regulation 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:

i. The applicant has not established on a balance of probabilities that his impairments arising from the accident fall outside of the MIG.

ii. As the MIG limit has been exhausted, the applicant is not entitled to payment of the treatment plans or the interest in dispute.

iii. The respondent is not liable to pay an award.

ANALYSIS

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.”

5An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under section 18(2), that they have a documented pre-existing 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.

6The applicant submits that the psychological impairment he developed as a result of the accident is not sequalae to a minor injury, and he relies on a section 25 psychological assessment by Dr. Bacchiochi, psychologist, dated November 28, 2022, who diagnosed him with “Other Specified Trauma- and Stressor-Related Disorder with Features of PTSD” to support his position. He argues that he continues to experience psychological symptoms years following the report which he identified as recurrent thoughts of his uncle’s death, high levels of anxiety, feelings of being unsafe when driving, persistent exaggerated negative beliefs about himself, his future and the world, intermittent concentration difficulties, irritability and hypervigilance particularly when driving, and ongoing sleep disturbance. Supporting evidence relied on by the applicant consists of a psychological pre-screening assessment by Dr. Shapiro, psychologist, dated January 24, 2023, and the clinical notes and records of Highbury Medical Clinic, dated April 1, 2024. The applicant also relies on 16-002818 v. Unifund, 2017 CanLII 39709 (ON LAT) and 17-008853 Applicant v. Certas Direct Insurance Company, 2019 CanLII 101547 (ON LAT) and submits that the treatment plans in dispute are reasonable and necessary.

7The respondent submits that the applicant’s injuries fall within the MIG, and that Dr. Bacchiochi’s report lacks credibility because no documents were provided or reviewed by the psychologist in preparation for the report, aside from the Disability Certificate (OCF-3). It also submits that Dr. Shapiro’s psychological pre-assessment report is not a complete section 25 assessment but rather a pre-screen. It argues that Dr. Shapiro did not conduct a thorough document review or any validity testing and that he relied entirely on the applicant’s self-reports.

8The respondent adds that the Tribunal should draw an adverse inference from the applicant’s failure to comply with its production order for updated medical records, ordered to be produced following the case conference held in this matter.

9The parties participated in a case conference on March 6, 2024, and a Case Conference Report and Order (CCRO) was issued to the parties on March 14, 2024. At paragraph [10] of the CCRO, the parties agreed to exchange documents no later than 30 calendar days from the date of the case conference. The documents the applicant agreed to exchange included:

i. Complete clinical notes and records from family physician from one year pre-accident to the date of the case conference;

ii. Complete clinical notes and records from all specialists attended from one year pre-accident to the date of the case conference; and

iii. Complete clinical notes and records from all hospitals attended from one year pre-accident to the date of the case conference.

10In his reply submissions, the applicant submits that he complied with the CCRO and has provided all documents he was able to obtain and all documents that exist.

Does the applicant suffer from a psychological impairment that would remove him from the MIG?

11I find the applicant has not demonstrated that he should be removed from the MIG on the basis of a psychological impairment.

12I find the injuries documented in the OCF-3 and in the weeks and months after the applicant’s accident fall within the definition of a “minor injury” under the Schedule. The OCF-3 dated September 16, 2022, describes the applicant’s impairments as: “injury of muscles and tendons at neck level; sprain and strain of lumbar spine; sprain and strain of shoulder joint; sprain and strain of hip; pain in joint; low back pain; and pain in thoracic spine”.

13Also, I give little weight to the section 25 psychological assessment report of Dr. Bacchiochi that the applicant relies upon. Dr. Bacchiochi’s findings rely entirely on the applicant’s self-reports that are not corroborated by contemporaneous accident-related complaints made to other medical professionals. Dr. Bacchiochi’s report, dated November 28, 2022, follows a videoconference consultation with the applicant and the administration of three questionnaires (i.e., Structured Clinical Interview, Miller Forensic Assessment of Symptoms Test (M-FAST), and Personality Assessment Inventory). Dr. Bacchiochi concludes a diagnosis of “ongoing trauma-related symptoms that meet criteria for an Other Specified Trauma- and Stressor-Related Disorder with Features of PTSD.” He concludes that this diagnosis is directly related to the subject accident, although he believes that the applicant’s uncle’s death four months prior to the accident made him more vulnerable to experiencing a significant reaction related to the subject accident. Specifically, the applicant reported to Dr. Bacchiochi that four months earlier, he was walking with his uncle, who was struck and killed in a hit-and-run accident.

14While I agree with the applicant that the videoconference format of the assessment does not automatically render the report invalid – as argued by the respondent – I find the weight to be assigned to this evidence is best determined according to other documentary evidence submitted for the assessor’s review.

15The respondent submits that the Tribunal should draw an adverse inference from the applicant’s failure to comply with production requests made at the case conference which included an agreement by the applicant to provide clinical notes and records from his family physician, from any specialists seen, and from all hospitals attended from one year pre-accident to the date of the case conference. In his reply submissions, the applicant submits that he complied with the CCRO and has provided all documents he was able to obtain and all documents that exist.

16I question the applicant’s assertion that he complied with his disclosure obligations as Dr. Bacchiochi himself reports that the applicant informed him that he attended a walk-in clinic “about 2-3 weeks after the accident” where he noted that he was feeling depressed, anxious and having issues with his sleep. These records were not provided to Dr. Bacchiochi for his review, nor have these records been submitted to the Tribunal to support the applicant’s self-reports. Other than the OCF-3, Dr. Bacchiochi’s report relies solely on the applicant’s self-reporting. The applicant has not pointed to any other contemporaneous documentation that references an accident-related psychological impairment prior to Dr. Bacchiochi’s report. The fact that the walk-in clinic’s clinical notes and records were not produced either confirms that the applicant failed to disclose all productions, or the information he provided to Dr. Bacchiochi was not factual. In any event, it leaves the Tribunal to find that the findings reached by Dr. Bacchiochi are not supported by any other contemporaneous information, aside from the OCF-3.

17Based on the records before the Tribunal, the psychological complaints of the applicant are not documented again until the applicant attended a psychological pre-screening assessment by Dr. Shapiro, psychologist, on January 24, 2023. The pre-screening assessment by Hands on Health Wellness Centre notes that the applicant was suffering from a mild level of depressive symptomatology and mild levels of anxiety. The findings of this pre-screening assessment identify potential areas of concern including: anxiety and depressive symptomatology; and PTSD symptomatology including nightmares, flashbacks and associated anxiety driving. I find that this pre-screening report is not helpful in supporting Dr. Bacchiochi’s diagnosis because it also relies entirely on the applicant’s responses to questionnaires with no corroborating documentation, and it emphasizes that its preliminary test results are not definitive. It concludes that further testing is required to render a definitive diagnosis.

18The other documentary evidence relied on by the applicant to support Dr. Bacchiochi’s diagnosis is a note from April 1, 2024 – more than a year following the pre-screening report – when he attended Highbury Medical Clinic. The applicant submits that the clinic’s note shows that his psychological symptoms continued years after the report was completed. The note states that the applicant attended the clinic for “anxiety” and “smoking cessation”. There is no finding that these issues were caused by the accident aside from the applicant’s own reporting, and the visit resulted in the prescribing of smoking cessation medication. No recommendation was made regarding the applicant’s “anxiety”.

19Dr. Bacchiochi’s report states that the applicant experiences recurrent distressing memories of the accident, persistent exaggerated negative beliefs about himself and his future, some loss of interest in some activities, some difficulty experiencing positive feelings, irritability and hypervigilance when driving, concentration difficulties, and sleep disturbance. However, Dr. Bacchiochi also notes that the applicant runs his own residential cleaning business, that he did not take any time off from work following the accident, he continued to work his full-time regular duties, although “on edge” he continues to drive, he continues to walk his dog, he does his own grooming, attends scheduled appointments, prepares his own meals, performs most chores around the home on his own, plays video games and watches television. After work, the applicant performs additional work in terms of maintaining supplies and responds to emails. He has friends – although the applicant states he sees these friends less often because they are at an age where they are getting married and having children – and drinks socially. Dr. Bacchiochi’s report also notes that it was “not clear to what extent psychological factors were playing a prominent role in the maintenance or exacerbation of his [physical] pain at this time.”

20I further note that the mental health assessment in the amount of $1,995.93 claimed by the applicant in this application and prepared by Allan Shapiro, psychologist, was prepared two months following Dr. Bacchiochi’s report and although it identifies its functional goal being a return to activities of normal living, he indicates “unknown” as to whether the impairment affects the applicant’s tasks of employment and activities of normal life.

21The claim for psychological services in the amount of $3,024.59, was prepared three months following Dr. Bacchiochi’s report by Hirinder Mrahar, psychologist. The functional goal identified in this OCF-18 is identified as a “return to activities of normal living, to address client’s emotional impairments to develop a pain management and coping skills” and it states that its goal is supported by Dr. Bacchiochi’s report. However, as noted above at paragraph [19], Dr. Bacchiochi’s does not provide sufficient information to support that the applicant’s psychological impairment affected his activities of daily living.

22For the reasons stated above, I find that, on a balance of probabilities, the applicant has not demonstrated that he suffers from a psychological impairment warranting removal from the MIG.

Are the treatment plans reasonable and necessary?

23Having determined that the applicant remains within the MIG and the parties’ confirmation that the MIG funding has been exhausted, it is not necessary to conduct an analysis of whether the various treatment plans in dispute are reasonable and necessary.

24Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Because the applicant is not entitled to the benefits in dispute, interest is not payable.

Is the respondent liable to pay an award?

25The applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

26As I have concluded that the applicant remains within the MIG and is not entitled to the treatment plans in dispute, it follows that no benefits were unreasonably withheld or delayed.

27Accordingly, the respondent is not liable to pay an award.

ORDER

28For the above reasons, I find:

i. The applicant has not demonstrated, on a balance of probabilities, that his impairments warrant removal from the MIG.

ii. As the MIG limit has been exhausted, the applicant is not entitled to payment for the treatment plans in dispute.

iii. Because the applicant is not entitled to the benefits in dispute, interest is not payable.

iv. The respondent is not liable to pay an award.

v. The application is dismissed.