Citation: Liu v. Unica Insurance Inc., 2025 ONLAT 23-014377/AABS

Licence Appeal Tribunal File Number: 23-014377/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:

Shi Han Liu

Applicant

and

Unica Insurance Inc.

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Aylina Dhanji, Counsel

For the Respondent:

Angela Comella, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Shi Han Liu, the applicant, was involved in an automobile accident on June 24, 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, Unica Insurance Inc., 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 $725.00 ($1,379.62 less $654.62 approved) for chiropractic services, proposed by Easy Health Care in a treatment plan dated January 7, 2023?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments in a treatment plan dated July 15, 2023?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 sue #1

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore she is subject to treatment within the $3,500.00 MIG limit.

4I find that the applicant is not entitled to the treatment plans in dispute, interest or an award.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

5I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

8In this matter, the applicant submits that she should be removed from the MIG because she suffers from chronic pain and a psychological condition.

a. The applicant is not removed from the MIG on the basis of chronic pain

9I find that the applicant has not proven on a balance of probabilities that she suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.

10Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. The Tribunal has found that the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

11The applicant submits that she should be removed from the MIG as she suffers from chronic pain as a result of the accident. She relies upon the Clinical Notes and Records (“CNRs”) of Brampton Civic Hospital; Dr. Maira Obnamia, family physician; Dr. Hyo Kim, chiropractor, at Easy Health; and Dr. Mehrdad Pojhan, psychologist, to support that she continues to suffer physically from the accident. The applicant submits that the medical evidence supports that she has ongoing pain in her back and leg. The applicant relies upon the Tribunal decision in C.G. v. The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT), (“C.G. v. The Guarantee”) where Adjudicator Johal opined that “chronic pain is a condition that persists for three to six months, and a formal diagnosis of chronic pain is not required to remove from the MIG.”

12The respondent submits that the applicant’s injuries fall within the MIG. It relies upon the Disability Certificate dated June 28, 2022 and the Treatment Plan, dated January 7, 2023, both prepared by Easy Health Centre, which list the applicant’s injuries as WAD II, sprain/strain of lumbar spine, sprain/strain of shoulder joint, cervicalgia, low back pain and myalgia. The respondent argues that these injuries are consistent with the definition of the MIG. The respondent also relies upon the CNRs of Dr. Obnamia, family physician, and argues that the only reference to the accident within these records is a notation from William Osler Hospital which states that the applicant attended the Emergency Department for upper extremity pain as a result of the accident. The respondent argues that there is no evidence in any of the medical documentation provided to suggest that the applicant suffered chronic pain as a result of the accident.

13The respondent also relies upon a Pre-Anesthesia Health History Patient Questionnaire, completed by the applicant at William Osler Health System, dated December 13, 2022. In the form, the applicant identified that she was able to participate in a number of physical activities which included climbing a flight of stairs, participating in moderate recreational activities, doing heavy housework and participating in strenuous sports. At question 37 of the form the applicant was asked whether or not she has a chronic pain disorder and she checked ‘no’. The respondent submits that the applicant’s own answers in the checklist suggest that she has the capacity to participate in strenuous activities and that she does not view herself as having a chronic pain condition.

14I find that the applicant has not demonstrated that she suffers from a chronic pain condition as a result of the accident. The applicant has not demonstrated that she is functionally impaired by pain. My reasoning is based on the following findings.

15First, I find that upon review of the CNRs of Dr. Obnamia, there are no records indicating that the applicant was seen in respect to any accident-related complaints.

16Second, upon review of the Disability Certificate and Treatment Plan submitted by Easy Health Centre, I agree with the respondent that the injuries listed are soft tissue injuries that fall within the definition of a minor injury. I further find that while the applicant refers in her submissions to the CNRs of Easy Health Centre supporting her ongoing pain, she has not pointed the Tribunal to the specific records which document any functional limitations.

17Third, while the applicant submits that Dr. Pojhan supports that she has pain issues, and notes that Dr. Pojhan stated that, “Ms. Liu reported that she does have pain issues that are making it difficult for her to find a comfortable position to fall asleep”, I find that this is not sufficient to support a finding that the applicant suffers from a chronic pain condition. In addition, while Dr. Pojhan is qualified to diagnose psychological conditions, she is not qualified to assess physical impairments.

18Fourth, while I agree with the Tribunal decision in C.G. v. The Guarantee, that a formal diagnosis of chronic pain is not required, it is still incumbent on the applicant to provide evidence of the ongoing and recurrent pain that she experiences as a result of the accident. I find that the applicant has not provided sufficient evidence to support that she has ongoing pain or a corresponding functional impairment as a result of the accident. Therefore, I do not find that the applicant suffers from a chronic pain condition.

19For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she suffers from a chronic pain condition as a result of the accident and therefore she is not removed from the MIG on this basis.

b. The applicant is not removed from the MIG on the basis of a psychological condition

20I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition as a result of the accident that would warrant removal from the MIG.

21The applicant submits that she suffered a psychological impairment as a result of the accident, and she should therefore be removed from the MIG. The applicant submits that she attended for a pre-screening psychological interview with Dr. Pojhan, on June 7, 2024, who recommended a psychological assessment to determine her clinical diagnosis and psychological treatment needs. The applicant submits that Dr. Pojhan noted that she was experiencing sleeping difficulty, flashbacks, depression, frustration, irritation, worry, anxiety, hypervigilance and stress.

22The respondent submits that the applicant does not suffer a psychological impairment as a result of the accident. It submits that the psychological pre-screening report of Dr. Pojhan should be given little weight because it is inconsistent with other records on file including the records of Dr. Obnamia.

23The respondent further submits that the presence of psychological symptoms in and of themselves is not an automatic ground for removal from the MIG. The respondent submits that the MIG makes it clear that some psychological symptoms are contemplated as ‘clinically associated sequelae’ and are treatable within the MIG.

24I find that the applicant has provided insufficient evidence to support that she sustained an accident-related psychological condition that would remove her from the MIG. Other than the psychological pre-screening report dated June 7, 2024, I find that the applicant has not directed me to any other medical evidence to support that she suffers from a psychological condition.

25I find that the psychological screening report of Dr. Pojhan lacks evidentiary weight. The report is not based on a review of the applicant’s medical records or any psychometric objective testing. Instead, Dr. Pojhan relies solely on the applicant’s self-reports as to her clinical history and the causation of her symptoms. It is unclear what basis, other than the applicant’s self-reports, Dr. Pojhan has for his recommendation that the applicant undergo a psychological assessment.

26I find upon review of the CNRs of the Dr. Obnamia, that the applicant was seen multiple times following the accident, yet there is no mention of the accident or any psychological complaints throughout the CNRs. In addition, upon review of the CNRS of Easy Health Centre, there are no psychological complaints made. I therefore find that there is no support in these records that the applicant was suffering from a psychological impairment.

27For the reason outlined above, I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition as a result of the accident and therefore she is not removed form the MIG on this basis.

The applicant is not entitled to the treatment plans in dispute

28The parties confirmed at the case conference that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant continues to be within the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans for chiropractic treatment and a psychological assessment.

29As an alternative argument, the applicant submits that the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(8) of the Schedule.

30Section 38(8) of the Schedule requires an insurer to provide its medical and all other reasons for a denial within 10 business days after receipt of a treatment plan. If an insurer fails to provide the requisite denial, under s. 38(11)2 it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11th business day after the treatment plan was submitted until the proper denial is given.

a. The respondent’s denial notice with respect to the treatment plan for chiropractic services was compliant with s. 38(8) of the Schedule

31The respondent denied the treatment plan for chiropractic services dated January 7, 2023, by way of letter dated January 20, 2023.

32The applicant submits that the respondent’s denial letter was non-compliant with s. 38(8) of the Schedule. The applicant submits that the respondent did not give a medical and relevant reasons for the denial and only referred to the lack of sufficient evidence to warrant MIG renewal, instead of assessing the evidence provided.

33I find upon review of the January 20, 2023 letter, that the respondent provided a clear and unequivocal denial, compliant with s. 38(8) of the Schedule. I find that the correspondence contains straightforward and clear language, sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. I find that the respondent clearly identified the treatment plan in dispute and set out the details of the treatment plan requesting chiropractic and acupuncture therapy sessions. I further find that the respondent advised the applicant that it agreed to partially fund the treatment plan to the maximum of $654.62, which is the amount remaining under the MIG limits. The letter expressly stated that the respondent compared the injuries set out in the treatment plan with the criteria in the MIG and determined that there was insufficient compelling medical evidence to support that her accident-related injuries fall outside of the MIG. I therefore find that sufficient medical and other reasons were provided to the applicant.

34For the reasons outlined above, I find on a balance of probabilities that the applicant has not met her burden of proving that the treatment plan dated January 7, 2023, is payable under s. 38(11) of the Schedule.

b. The applicant has not proven that the respondent received the treatment plans for a psychological assessment

35The applicant submits that the respondent did not respond to the treatment plan for a psychological assessment dated July 15, 2023, and therefore no denial of the treatment plan was provided by the respondent in accordance with s. 38(8) of the Schedule.

36At tab 11 of the applicant’s submissions, she attached a treatment plan proposing a psychological assessment, by Dr. Bruce Cook, of Somatic Assessment & Treatment Clinic Inc. dated July 15, 2022. The treatment plan was denied on July 27, 2022. I note that this treatment plan was addressed to Aviva General Insurance Company and lists the date of the accident as June 24, 2022. The applicant attached a second treatment plan proposing a psychological assessment, by Dr. Pojhan, dated June 18, 2024. The treatment plan was denied on June 27, 2024. I note that this treatment plan was addressed to Aviva General Insurance Company and lists the date of the accident as June 24, 2022.

37The respondent submits that both of the treatment plans included at Tab 11 of the applicant’s submissions reference the June 24, 2022 date of loss however, they are addressed to Aviva General Insurance Company and include a policy number that is not associated with it. The respondent submits that it never received either of the treatment plans recommending a psychological assessment.

38The applicant did not provide a reply to the respondent’s submissions on this issue.

39I find upon review of the two treatment plans recommending a psychological assessment, that are both addressed to Aviva and not Unica, with a policy number that is not the respondents. As the applicant did not provide any reply to the respondent’s submissions, or proof that these treatment plans were submitted to the respondent, I accept the respondent’s submissions that it never received the treatment plans in dispute and therefore there was no non-compliance with s. 38(8) of the Schedule

40For the reasons outlined above, I find on a balance of probabilities that the applicant has not met her burden of proving that the treatment plan dated July 15, 2023, is payable under s. 38(11) of the Schedule.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are outstanding, the applicant is not entitled to interest.

Award

42The applicant sought an award under s. 10 of Reg. 664. Under s. 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. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

43For the reasons outlined above, I find,

i. The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. No interest or an award is payable;

iv. The application is dismissed.