Licence Appeal Tribunal File Number: 23-013582/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:
Hoi Kit Lam
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Devon McIntyre, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Hoi Kit Lam, the applicant, was involved in an automobile accident on February 26, 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 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 the treatments proposed by Total Recovery Rehab Centre, as follows:
$249.38 for chiropractic services, in an OCF-18 / treatment plan (“treatment plan”) submitted May 19, 2022; and
$4,463.90 for chiropractic services, in a treatment plan submitted June 20, 2022?
iii. Is the applicant entitled to $2,200.00 for psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan submitted May 10, 2020?
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 remains in MIG.
4As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
5No award or interest is owing.
ANALYSIS
Minor Injury Guideline (MIG)
6Section 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.”
7An 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.
Psychological Condition
8The applicant has not met his onus to prove on a balance of probabilities that he suffers from a psychological condition.
9The applicant submits that he has suffered from a psychological condition as a result of the subject accident. He relies on the clinical notes and records (CNRs) of his family doctor Dr. Li, and a psychological consultation report by Dr. McDowall, psychologist, completed on April 1, 2022.
10I find the CNRs of Dr. Li do not support the applicant’s claim that he suffers from a psychological condition. The only note in the CNRs that discuss memory and mood issues is from November 21, 2022. The CNRs state that memory loss first started a few years ago, well before the subject accident. Further, there is a discussion on mood swings, anger, and irritability. None of this reporting is associated to the subject accident. The only reference to the subject accident is in the close of the note for that day stating, “memory and mood issues x 6 months, post MVA”. I find this contradictory, as the bulk of the description of the issues are attributed to “a few years ago”, and not the MVA in February 2022.
11I placed little weight on Dr. McDowall’s report as I am not directed to how Dr. McDowall derived this clinical opinion. I do not see any psychological testing completed, or that any review of medical information was undertaken by Dr. McDowall. The report is at odds with the applicant’s self reporting to Dr. Li from February 28, 2022, where the doctor noted that the applicant had “no headachy, no dizziness, no vision changes”. Similarly, while mild to moderate pain was reported from the MVA, Dr. Li notes that neck pain was pre-existing from 2 years prior, and that on February 28, 2022, the applicant “able to move neck in all directions” and “no LOC, no memory loss, no other neuro symptoms”.
12The respondent submits that the applicant has not met his onus to prove on a balance of probabilities that he suffers from a psychological condition. The applicant relies on an Insurer’s Examination (IE) by Dr. Harris completed on July 29, 2024.
13I find that the IE by Dr. Harris does not support the applicant’s claim that he suffers from a psychological condition. In the IE, Dr. Harris found that he was unable to provide a diagnosis of the applicant of the diagnostic criteria outlined in Diagnostic and Statistical Manual of Mental Disorder, (DSM-5). In two tests administered gauging if the applicant was feigning or exaggerating his psychiatric disturbance and cognitive dysfunction. One, the Structured Inventory of Malingered Symptomatology (SIMS) showed a scored that was significantly elevated, above the recommended cut-off scored for the identification of suspected malingering. The second, the Structured Interview of Reported Symptoms (SIRS-2) has eight primary scales. Out of these eight scales, three feel into the definitely feigning range and four fell in the probably feigning range. Additionally, this test noted the Rare Symptoms-Total (RS-Total) was twice as high as the recommended cut-off. Dr. Harris summarized his findings by stating “it is my professional opinion that the applicant does not present with any accident-related psychological impairment.”
14I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from a psychological condition. I am not persuaded by the report by Dr. McDowall, as the report was inconsistent with the CNRs of Dr. Li and included symptomology not presented in any other medical evidence.
15I find on a balance of probabilities that the applicant is not removed from MIG due to a psychological condition.
Concussion
16I find that the applicant does not have a concussion that warrants removal from the MIG.
17The applicant submits that he potentially suffers from a concussion. The applicant relies on the CNRs of Dr. Li.
18The CNRs of Dr. Li do not support the applicant’s claim he suffers from a concussion as a result of the subject accident. In the CNRs, Dr. Li notes on January 17, 2023, that he discussed the results from an MRI completed on the applicant’s head. The MRI found nothing acute, and no evidence of a concussion. The applicant reported attending the Toronto Concussion Centre for an assessment. This assessment has not been submitted into evidence. The January 17, 2023, appointment note concludes with the note “concussion symptoms, f/u w/ concussion treatment centre.” Further, I note that at the reporting of the accident, Dr. Li’s CNRs note on February 28, 2022 indicates, “no LOC, no memory loss, no other neuro symptoms”.
19I am not persuaded by the applicant’s submissions. Dr. Li does not diagnose a concussion. The results of the Toronto Concussion Centre have not been provided to substantiate any claim of a possible concussion.
20The applicant has not established on a balance of probabilities that he has a concussion that would warrant removal from the MIG.
21As the applicant has been found to remain in the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.
22The applicant submits that the applicant failed to meet the requirement to respond within 10-business days as set out in s. 38(8) of the Schedule. The applicant states that the OCF-18 for chiropractic services was submitted on June 20, 2022, but not replied to until July 5, 2022, claiming that this is the 11th business day.
23Section 38(8) of the Schedule states:
i. Within 10 business days after it receives the treatment and assessment plan, the insurer shall:
a) give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for
b) any the insurer does not agree to pay for and,
c) the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
24The calculation of the 10-business day starts the following day after the treatment plan is submitted. In this instance, the treatment plan was submitted on June 20, 2022. The calculation of the 10-business days therefore starts on June 21, 2022. Given that July 1, 2022, is a holiday, it is not considered a business day. Therefore, July 5, 2022, would be the tenth business day.
25The applicant has not proven on a balance of probabilities that the respondent did not comply with s. 38(8) of the Schedule.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.
Award
27The 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. I was not persuaded of any benefits being unreasonably withheld or delayed, no award is owing.
ORDER
28I find that:
i. The applicant remains in MIG.
ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
iii. The treatment plan for chiropractic services is not payable pursuant to s. 38(8).
iv. No award or interest is owing.
v. The application is dismissed
Released: September 19, 2025
Robert Rock
Adjudicator