Licence Appeal Tribunal File Number: 23-013241/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:
Yu Tao Zhu
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Hilary Doyle, Counsel
HEARD: In Writing
OVERVIEW
1Yo Tao Zhu, the applicant, was involved in an automobile accident on January 18, 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, Aviva 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 (‘the MIG’)?
ii. Is the applicant entitled to $4,383.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan / OCF-18 (“treatment plan”) submitted March 27, 2023?
iii. Is the respondent liable to pay an award under s.10 of Reg.664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has suffered a minor injury and is subject to the MIG.
4As the applicant is being held to the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary.
5The respondent is not liable to pay an award for unreasonably withheld or delayed payments to the applicant.
6No interest is payable.
ANALYSIS
Has the applicant suffered an injury which would remove her from the MIG?
7The applicant has not met her onus to establish that she should be removed from the MIG.
8Section 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.”
9An 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.
Chronic Pain
10The applicant submitted that she should be removed from the MIG due to chronic pain.
11To support her position, the applicant relies on an OCF-3 disability certificate, submitted by Dr. Georgia Palantzas, a chiropractor, dated April 26, 2023. This OCF-3 checked “Yes” next to the question “Does the applicant suffer a complete inability to carry on a normal life.” It further stated that the applicant had evidence of significant impairment, radiculopathy, psychological issues and difficult engaging in pre-accident activities of daily living.
12The respondent relies on a s.44 multi-disciplinary assessment conducted in October 2023. In this submission, General Practitioner Dr. Howard Platnick states that the applicant sustained a minor injury and has returned to her pre-accident state.
13The respondent also relies upon the Clinical Notes and Records (CNRs) of Dr. Victor Ng. Dr. Ng appears to be the applicant’s family physician. Upon reviewing the CNRs, I note that despite having visited Dr. Ng multiple times since the accident throughout 2022, the accident was referenced one time in August 2022, approximately five months after the accident occurred. In these notes, the applicant complains of right arm numbness. The doctor’s notes state “no head injury or neck injury.” The CNR’s do not support the applicant’s position that she is suffering from injuries to her neck causing chronic pain. Furthermore, I am not persuaded by the OCF-3 in support of the claim for chronic pain as there is no discussion of any of the applicant’s pre-accident activities of daily living which she is completely unable to do post-accident or of any testing that was done to support those findings.
14I find the applicant has not met her onus to establish on a balance of probabilities that she has chronic pain with a functional impairment that warrants removal from the MIG.
Has the applicant suffered a psychological injury warranting removal from the MIG?
15The applicant has not, on the balance of probabilities, met her onus to prove that she has suffered a psychological injury warranting removal from the MIG.
16The applicant submits she should be removed from the MIG for psychological injuries, stating she suffers from anxiety, irritability, frustration, depression and fatigue.
17To support her claim the applicant relies on a psychological assessment authored by Psychologist Dr. Mehrdad Pojhan, dated February 2, 2022. This assessment did not provide a diagnosis but did say the applicant should be removed from the MIG.
18The applicant also submitted evidence from a chiropractor, Dr. Afifi, stating that the applicant was suffering from psychological dysfunctions.
19The respondent relies upon the same multi-disciplinary report cited above, where the applicant was assessed by Clinical Neuropsychologist Dr. Mohammad Nikkhou. In this report, Dr. Nikkhou stated the applicant’s injuries “would need to be ruled out as clinically severe at this point in time and does not warrant a full-fledged MVA-related psychological disorder diagnosis.”
20Dr. Nikkhou also points out that the applicant continued to work full time from July 5 until November 15, 2022 in a marketing position without any difficulties, and that she continues to drive.
21I put reduced weight on Dr. Pojhan’s report because the interview was not conducted by Dr. Pojhan, but by psychotherapist Dr. Wendy Lee. I also note, as per paragraph 16 above, that Dr. Pojhan did not offer a diagnosis.
22I also put reduced weight on Dr. Afifi’s evidence, because he is a chiropractor and it would be outside his scope of practice to make a psychological diagnosis.
23The applicant did not submit further supporting evidence of psychological injury.
24On the balance of probabilities, the applicant has not convinced me that her injuries warrant removal from the MIG.
25I find on the balance of probabilities the applicant has not met her onus to prove that she has chronic pain or a psychological impairment what would warrant her removal from the funding limits of the MIG.
26As I have found the applicant’s injuries to be within the MIG, she is entitled to treatment within the MIG limits. It is not necessary to determine if the treatment plan for chiropractic services is reasonable and necessary.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
28The 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 the insurer has not unreasonably withheld or delayed payment, no award payment is owing.
ORDER
29I find:
i. The applicant has suffered a minor injury and is subject to the Minor Injury Guideline.
ii. As the applicant is being held to the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary.
iii. No interest is payable.
iv. No award is owing.
Released: August 27, 2025
Jeff Chatterton
Adjudicator