Li v. Intact Insurance Company, 2025 CanLII 94802
Licence Appeal Tribunal File Number: 23-013724/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:
Ming Li
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Aaron Weinroth, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ming Li, the applicant, was involved in an automobile accident on April 13, 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, Intact 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?
ii. Is the applicant entitled to $99.75 ($1,297.25 less $1,197.50 approved) for physiotherapy services proposed by Atlas Physiotherapy and Health in a treatment plan/OCF-18 (“plan”) dated August 10, 2022?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessment and Treatment Centre in a plan dated June 1, 2022?
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
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and are therefore subject to treatment within the MIG limit.
4As I have found the applicant's injuries to be subject to treatment within the MIG, it is not necessary for me to determine whether the disputed plans are reasonable and necessary.
5The remainder of the plan for physiotherapy services was properly denied by the respondent in compliance with s. 38(8) of the Schedule.
6The respondent is not liable to pay an award.
7The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ANALYSIS
Applicability of Minor Injury Guideline
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 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 a psychological condition may warrant removal from the MIG. Further, jurisprudence has established that concussions are not part of the definition of minor injury. In all cases, the burden of proof lies with the applicant.
10The applicant submits that he suffers from injuries that prevent him from achieving maximal recovery under the MIG, that he has a psychological impairment and a likely concussion resulting from the accident. The respondent submits that the applicant has sustained only minor injuries in the accident.
11The respondent further submits that it has approved the applicant’s treatment up to the $3,500.00 MIG limit except for $2.75. The applicant does not make submissions in this regard.
The applicant does not have a psychological impairment resulting from the accident
12The applicant has not demonstrated on a balance of probabilities that he has a psychological impairment because of the accident that warrants removal from the MIG.
13The applicant relies on a Psychological Consultation Report dated May 2, 2022 (“Report”). The applicant was interviewed by Mandy Fang, psychotherapist, under the supervision of Dr. Sharleen McDowall, psychologist.
14The applicant reported frustration with the psychological aftermath of the accident. The applicant reported that he struggled with falling asleep and remaining asleep, nightmares, anxiety, impatience, irritability, frustration, poor mood, difficulty focusing, decreased appetite, and being less social. Further, the applicant reported that he stopped driving and avoided traveling in vehicles unless it was necessary as he would feel extremely fearful, nervous and anxious on the roads.
15Dr. McDowall concluded that the applicant was experiencing many of the symptoms commonly found in individuals suffering from post-accident psychological impairment. Dr. McDowall further indicated that given the severe and acute nature of the applicant’s ongoing pain and psychological impairment as a direct result of the accident, his injuries should not fall under the MIG. She recommended that the applicant undergo a full psychological assessment battery including psychometric testing and a thorough in-depth interview to determine clinical diagnosis and psychological treatment needs.
16The applicant submits that he also reported to Dr. Fabio Salerno, psychologist, in his s. 44 assessment on July 5, 2022 that he would drive daily prior to the accident but that he had not returned to driving after the accident because he did not feel safe. He further reported that he did not drive his wife’s vehicle due to his driving anxiety. The applicant points out that despite psychological testing results (as outlined below), Dr. Salerno concluded that he did not exhibit accident-related psychological symptoms warranting a DSM-5 diagnosis. The applicant further submits that Dr. Salerno did not sufficiently consider the severity of the psychometric testing results and the cultural barriers to the applicant admitting that he is suffering from psychological issues during the interview.
17The applicant argues that the consistency in the applicant’s psychological complaints and the testing results during the psychological assessment demonstrate that he suffers from significant psychological impairments resulting from the accident.
18The respondent submits that Dr. McDowall’s Report does not offer any objective psychological diagnosis, but rather lists sequalae to a minor injury as captured within the s. 3 definition of a “minor injury” in the Schedule.
19The respondent relies on Dr. Salerno’s assessment. Dr. Salerno reviewed medical documentation, interviewed the applicant and conducted psychometric testing with the assistance of an interpreter. The process lasted one hour and seventeen minutes.
20Dr. Salerno noted the following with respect to the interview portion:
i. The applicant reported that he has never driven a motor vehicle since the accident.
ii. The applicant indicated that he was going to sue the vehicle manufacturer because the airbags did not deploy in the accident. When asked what would be required for him to resume driving, he indicated if he found a vehicle with adequate safety features that met his standards, he would readily resume his usual pre-accident driving routine. The applicant reported travelling as a passenger in a vehicle and that he feels much better in his wife’s vehicle, in the back seat. When asked, he did not report any other vehicular anxiety.
iii. When asked if there were any other sources of anxiety or worry in his life since the accident, he said “no.”
iv. Upon further exploration of the applicant’s psychological function since the accident, the applicant reported feeling hopeful and happy to be alive.
v. The applicant reported that he is less interested in leaving his home as often because he feels tired due to poor sleep. He reported sleeping at three-to-four-hour intervals. When asked about the factors that awake him, he stated “I do not know. I suddenly wake up.” He did not report any other sleep difficulty when asked.
vi. He indicated feeling “a little bit depressed because of the pandemic” but did not articulate any other factors contributing to his sadness.
vii. When asked about any additional emotional responses as a direct result of the accident, he reported feeling “frustrated a little bit” given that he has been unable to work since the accident because he cannot stand for too long.
viii. When asked, the applicant did not report any other mood disturbance or symptoms since the accident.
ix. When asked about memory and concentration difficulty since the accident, the applicant’s wife indicated that he has forgotten some of their conversations. The applicant did not report any other memory or concentration difficulty when asked.
x. He reported that his appetite has remained “pretty much the same” since the accident.
xi. The applicant denied relationship difficulty engaging with his friends but reported reduced contact with friends due to the pandemic and because he has not driven since the accident.
xii. Throughout the interview, the applicant did not appear to have difficulty concentrating, he engaged in a relaxed and pleasant fashion, maintained appropriate eye contact, did not appear sad, exhibited a capacity for humour, did not exhibit shortness of breath, panic, trembling or hypervigilance suggestive of an anxiety disturbance, and there was no overt behavioral suggestions of irritability or anger.
xiii. The applicant did not exhibit overt emotional distress during an in-depth and systematic exploration of the events of the accident (including showing Dr. Salerno a picture of the damaged vehicle), emotional symptoms and associated life changes.
21Dr. Salerno noted that on one of the psychometric questionnaires, the applicant did not endorse an absolute avoidance of driving since the accident due to fear or distress. When asked about this, the applicant reported that he does drive his son to school, which is a five-minute drive. The applicant confirmed that he did not want to drive more often than that until he purchases a new vehicle with safety standards that meet his expectations, and that he was in the process of shopping for one.
22The results of the psychometric testing were as follows:
The Depression Anxiety Stress Scale (“DASS-21”) suggested severe depressed mood, extremely severe anxiety and severe stress.
The applicant obtained a score within the PTSD range from the Accident Fear Questionnaire (“AFQ”).
On the Pain Patient Profile, the applicant scored within the average range for the pain population on the depression and anxiety scales which suggests depressive symptoms and anxiety are unlikely to significantly interfere with his recovery. He scored below the average range on the somatization scale which suggests preoccupations with health concerns are not significantly complicating his recovery.
23Dr. Salerno noted that the applicant did not describe clinically significant accident-related psychological symptoms during the interview. Further, although he initially reported not driving at all after the accident, he later reported driving his son to school, and that he would resume driving when he purchases a vehicle that meets his safety standards. Dr. Salerno points out that caution is warranted in interpreting the tests administered due to cultural nuances and the use of an interpreter. In concluding that the applicant did not exhibit accident-related psychological symptoms warranting a DSM-5-TR psychological diagnosis, Dr. Salerno indicated that the test data are not interpreted in isolation, but rather in the context of the applicant’s subjective report and his behavioural presentation. Dr. Salerno opined that the applicant did not suffer a psychological impairment from the accident and that his prognosis is excellent.
24I am not satisfied on a balance of probabilities that Dr. McDowall’s Report establishes that the applicant suffers from a psychological impairment because of the accident. I place little weight on Dr. McDowall’s opinions because they were made after a single interview, with no psychometric testing or review of medical documentation. The body of the Report is 1.5 pages long and does not indicate how much time was spent on the interview with the applicant.
25Further, the psychological injuries the applicant reported to Dr. Salerno were inconsistent with those reported to Dr. McDowall. For example, the applicant reported to Dr. McDowall that he stopped driving unless it was necessary due to being extremely fearful, nervous and anxious on the roads, whereas he reported to Dr. Salerno that his main concern with driving was the safety of his vehicle in that the air bags did not deploy in the accident. The applicant also reported to Dr. McDowall having nightmares, anxiety, impatience, irritability, poor mood, and decreased appetite, which symptoms were not reported to Dr. Salerno.
26I also note that the applicant met his family physician, Dr. Henry Lau, on the following dates after the accident: May 19, August 22, September 19, October 6, 2022, and February 28 and March 8, 2023. During these visits, the applicant reported accident-related physical injuries. He did not report any psychological symptoms with the exception of a notation on February 28, 2023, indicating “occ problem sleeping.”
27I have considered the applicant’s submissions that I should consider the severity of the psychometric testing results obtained by Dr. Salerno. In essence, the applicant is asking me to consider these test results in isolation, without considering Dr. Salerno’s interpretation of those results. However, I accept Dr. Salerno’s opinion that these results are to be interpreted in the context of the applicant’s subjective report and his behavioural presentation. Given the inconsistency between the applicant’s presentation at the interview, his reporting of psychological symptoms, and his psychometric test results, I am not persuaded on a balance of probabilities by the results of the psychometric testing that he has a psychological impairment caused by the accident. Further, although the applicant submits that there would have been cultural barriers to the applicant admitting that he is suffering from psychological issues during the interview with Dr. Salerno, he does not explain why these cultural barriers were not a factor during his interview with Dr. McDowall, where he disclosed several psychological issues.
28For these reasons, I find that applicant has not established on a balance of probabilities that he has a psychological impairment because of the accident that warrants removal from the MIG.
The applicant does not have a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG
29The applicant has not established on a balance of probabilities that he has a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG.
30The applicant submits that he suffers from injuries that prevent him from achieving maximal recovery under the limits of the MIG. He does not, however, direct me to evidence indicating that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if he is kept within the MIG.
31For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that he has a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG.
The applicant did not sustain a concussion as a result of the accident
32The applicant has not established on a balance of probabilities that he sustained a concussion because of the accident that warrants removal from the MIG.
33The applicant relies on the following evidence to support his position that he sustained a concussion because of the accident:
i. He complained of mild headache and dizziness at the hospital on April 16, 2022.
ii. On April 27, 2022, the applicant attended at the hospital complaining of feeling a little bit nauseous during the previous week. He was assessed as follows: “Likely mild concussion after MVC.”
iii. The applicant complained of ongoing headaches to Dr. Lau on May 19, 2022 and to Dr. Sharleen McDowall on May 2, 2022.
34Based on this evidence, the applicant submits that, on a balance of probabilities, he suffered a concussion from the accident that would take him out of the MIG.
35The respondent submits that at most, a provisional diagnosis of a concussion was made during the hospital visit on April 27, 2022. The respondent also points out that the applicant’s family doctor’s records make no mention of any concerns of the applicant having sustained a concussion.
36I note that the clinical notes and records from the applicant’s visit to the hospital on April 16, 2022 indicate that he did not lose consciousness in the accident and he did not have nausea or vomiting. Further, the notes from his visit on April 27, 2022 indicate there were no signs of a head injury or meeting requirements for a CT of the head at that time. I am not satisfied on a balance of probabilities that the applicant was diagnosed with a concussion based on one doctor’s assessment that a concussion was “likely.” The applicant has not directed me to evidence of any other doctor who conclusively diagnosed him with a concussion, including his family doctor.
37Based on the evidence before me, I find that the applicant has not demonstrated on a balance of probabilities that he sustained a concussion because of the accident.
38For the reasons set out above, I find that the applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.
39As I have found the applicant's injuries to be subject to treatment within the MIG, it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary. I will, however, address the applicant’s submissions that the respondent failed to comply with the mandatory requirements of s. 38(8) of the Schedule with respect to the plan for physiotherapy services. The applicant did not make submissions pursuant to s. 38(8) with respect to the plan for a psychological assessment.
The applicant is not entitled to the remainder of the plan for physiotherapy services
40The applicant is not entitled to the remainder of the plan for physiotherapy services because it was properly denied by the respondent in compliance with s. 38(8) of the Schedule.
41Section 38(8) of the Schedule provides that the insurer must reply to a plan within 10 business days after receipt of the treatment plan, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies, if the plan was incurred during the period of non-compliance.
42The applicant submits that the respondent did not meet the requirements set out in s. 38(8) because it did not provide sufficient medical reasons for the denial of the plan for physiotherapy services.
43The applicant relies on the Tribunal decision of Jamily v. Certas Home and Auto Insurance Company, 2022 CanLII 98064 (ON LAT) (“Jamily”), where the Tribunal held that the Explanation of Benefits (“EOB”) did not meet the respondent’s obligation in s. 38(8) because it did not mention the applicant’s injuries and the documentation it relied on in making its determination. The applicant submits that this case is similar, in that the respondent did not mention his injuries or the medical records it had received, despite being in possession of records from Mackenzie Richmond Hill Hospital which indicated that the applicant’s injuries included a likely concussion. The applicant further submits the respondent used boilerplate language. I am not bound by other decisions of the Tribunal, and I respectfully disagree with the reasons in Jamily.
44The respondent did not make submissions on the application of s. 38(8) to this plan.
45I find that standing within the MIG is a medical reason because it indicates that the insured’s impairments are minor, i.e., a medical definition in the Schedule. I have reviewed the EOB dated September 16, 2022. I find that it identifies the medical reasons and all other reasons why the plan is denied. The letter indicates that based on the medical documentation submitted, the applicant’s injuries qualify him for treatment under the MIG. The letter goes on to set out the definition of a “minor injury” and indicates that based on the applicant’s OCF-23, his injuries fall under this description. I find that this letter is clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Further, considering my findings above that the applicant’s injuries fall within the MIG, the denial was justified.
46For the above reasons, I find that the applicant is not entitled to the remainder of the plan for physiotherapy services.
Interest
47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
48The 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. Since no benefits were unreasonably withheld, the applicant is not entitled to an award.
ORDER
49For the above reasons, I find:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and are therefore subject to treatment within the MIG limit.
ii. As I have found the applicant's injuries to be subject to treatment within the MIG, it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary.
iii. The remainder of the plan for physiotherapy services was properly denied by the respondent in compliance with s. 38(8) of the Schedule.
iv. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
v. The respondent is not liable to pay an award.
Released: September 17, 2025
Laura Goulet
Adjudicator