Jiang v. Certas Direct Insurance Company, 2025 CanLII 97795

Citation: Jiang v. Certas Direct Insurance Company, 2025 ONLAT 23-014161/AABS

Licence Appeal Tribunal File Number: 23-014161/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:

Zhi Hong Jiang

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Thomas McKinlay, Counsel

HEARD: By way of written submissions

OVERVIEW

1Zhi Hong Jiang, the applicant, was involved in an automobile accident on June 1, 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, Certas Direct 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 $628.96 for chiropractic services proposed by Easy Health Centre in a treatment plan/OCF-18 (“plan”) submitted on November 2, 2022?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessments and Treatment Clinic in a plan submitted on August 3, 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 therefore subject to treatment within the $3,500.00 MIG limit.

4As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.

5As there are no benefits outstanding, no interest is payable.

6As no benefits have been unreasonably withheld or delayed, the respondent is not liable to pay an award.

ANALYSIS

Applicability of the Minor Injury Guideline

7Section 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.”

8An 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 chronic pain with functional impairment or 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.

9The applicant submits that his injuries fall outside the MIG, although he does not make submissions indicating why he should be removed from the MIG.

10The parties agree that the MIG limit has been exhausted.

The applicant’s injuries are predominantly minor

11The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

12The applicant refers to the clinical notes and records (“CNRs”) of Upper Sherman Family Medicine, which indicate that on June 20, 2022, he met with Aideen Burke, nurse practitioner, and reported pain in his left side, left arm, lower and upper back, and neck because of the accident. Ms. Burke recommended physiotherapy and massage therapy.

13The applicant also refers to a Psychological Consultation Report dated June 20, 2022 (“Report”). The applicant was interviewed by Sherry Jiang, registered psychotherapist (qualifying), under the supervision of Dr. Sharleen McDowall, psychologist. The applicant reported pain in his hands, back, and neck, and frustration with the psychological aftermath of the accident. The applicant reported that he struggled with falling asleep and remaining asleep, nightmares, flashbacks, anxiety, irritability, frustration, poor mood, difficulty focusing on tasks, decreased appetite, loss of motivation to exercise, feeling nervous while driving, and being less social.

14Dr. 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.

15The applicant submits that by keeping him within the MIG, the respondent has denied him a timely psychological assessment and treatment that was reasonable and necessary, which has been a cause for his ongoing complaints of physical pain and emotional distress.

16I note that the CNRs from Upper Sherman Family Medicine dated June 20, 2022 indicate that the applicant was assessed with soft tissue injuries.

17The applicant has not made submissions or directed 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, that he suffers from chronic pain with functional impairment, or that he suffered a concussion as a result of the accident.

18Further, I 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. I also note that the applicant met with Ms. Burke on the same day as he met with Dr. McDowall, however he did not report any psychological symptoms to Ms. Burke. The applicant has not directed me to any other evidence of an accident-related psychological impairment.

19For these reasons, I find that the applicant has not established on a balance of probabilities that he should be removed from the MIG.

20As 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.

ORDER

21For the above reasons, I find:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

ii. As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.

iii. As there are no benefits outstanding, no interest is payable.

iv. As no benefits have been withheld or delayed, the respondent is not liable to pay an award.