Licence Appeal Tribunal File Number: 24-000093/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:
Rui Yang
Applicant
And
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Yan Li, Counsel
For the Respondent:
Abigail Newcombe, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Rui Yang, the applicant, was involved in an automobile accident on October 18, 2021, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
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 limit? Note: The parties agree that there is $3.25 left under the MIG limits.
Is the applicant entitled to $897.75 for chiropractic services, proposed by Paolo Cortez in a treatment plan/OCF-18 (“plan”) submitted September 16, 2022, and denied September 25, 2022?
Is the applicant entitled to $3,961.95 for chiropractic services, proposed by Prime+ Care Health Centre in a plan submitted November 29, 2022, and denied December 8, 2022?
Is the applicant entitled to $2,200.00 for psychological services, proposed by Perfect Choice Psychological Services Inc. in a plan submitted July 11, 2022, and denied July 17, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits
RESULT
3The applicant’s injuries are minor and subject to treatment within the $3,500 MIG limit. He is not entitled to the benefits in dispute, interest or an award.
ANALYSIS
The applicant’s accident-related impairments fit within the MIG
4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”
5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG.
6The applicant argues that he should be removed from the MIG because he suffers from chronic pain as a result of the accident. In addition, he also submits that he sustained a psychological impairment which removes him from the MIG. In support of his position, he relies on the clinical notes and records (“CNRs”) of Dr. Liu, general practitioner, and Dr. Aliabadi, chronic pain specialist.
7The respondent argues that the applicant’s accident-related impairments fall within the definition of a minor injury. It submits that the medical evidence relied upon by the applicant supports that he sustained a minor injury. It relies on the insurer examination (“IE”) reports of Dr. Soric, physiatrist, dated October 18, 2022, who diagnosed the applicant with soft tissue injuries which fall within the MIG. It also relies on the IE report of Dr. Dumitrascu, psychologist, dated October 28, 2022, who determined that the applicant did not have a psychological impairment which warrants removal from the MIG.
8I find the applicant sustained a minor injury for the following reasons.
Chronic Pain
9First, I find the CNRs relied upon by the applicant support that he sustained a minor injury. The applicant visited Dr. Liu at a walk-in clinic twice in 2022, and twice in 2023. The following summarizes these visits:
i) On March 15, 2022, he complained of bilateral shoulder pain and was diagnosed with rotator cuff tendinosis. The doctor prescribed Vimovo and Flexeril.
ii) On June 29, 2022, he first reported upper back pain for six months. The note indicates that the range of motion (“ROM”) of his neck and shoulder was normal and the doctor diagnosed chronic back strain. He was prescribed naproxen and baclofen. The accident was not mentioned in this note.
iii) On February 12, 2023, the note states the applicant has a history of insomnia and chronic neck and upper back pain. The note states that the ROM of his neck and shoulders were normal and there was mild to moderate tenderness of the left upper trapezius muscle. The note states chronic left posterior neck, and shoulder pain and insomnia.
iv) On May 17, 2023, he reported left sided neck pain and insomnia. The note states he denies anxiety and the ROM of his neck and shoulders were normal and there was minimal tenderness of the left upper trapezius muscle.
10I find Dr. Liu’s CNRs support that the applicant sustained strain and sprain impairments of his neck and shoulders which fit within the MIG. Further, on the applicant’s last three visits to Dr. Liu the ROM in his neck and shoulders were normal which I also find supports that he sustained a minor injury. In addition, I find that the applicant has not established a link between the accident and his first complaint of back pain seven months post-accident. Further, the accident was not mentioned in this visit. However, I note that a back sprain would also fit within the definition of a minor injury.
11The applicant was then referred to Dr. Aliabadi, chronic pain specialist. A CNR dated September 24, 2023, states that the applicant had neck pain radiating to his left shoulder blades that would interfere with his sleep sometimes. The doctor’s physical examination revealed full ROM of his shoulders. The ROM of his neck was restricted due to pain. Dr. Aliabadi diagnosed the applicant with cervical strain. I find that Dr. Aliabadi’s diagnosis of cervical strain fits within the definition of a minor injury.
12In contrast, the respondent relies on the IE report of Dr. Soric where the applicant reported ongoing neck and shoulder pain and that his back pain had resolved. The applicant advised the doctor that he returned to work following the accident, was independent with his personal care and had resumed driving. Dr. Soric’s physical examination revealed normal ROM in the applicant’s neck and shoulder and the doctor opined that the applicant sustained soft tissue injuries that fit within the MIG. I prefer Dr. Soric’s opinion because I find it consistent with the medical evidence before me. Moreover, the applicant has not provided any reports to refute Dr. Soric’s opinion.
13The applicant submits that it is well established law that if an individual’s pain persists for longer than 3 to 6 months with evidence of functional impairment this is sufficient to establish that the individual has chronic pain which removes them from the MIG. Although I agree, I find the applicant has not proven that he has any functional impairments as a result of any accident-related impairment. Dr. Liu’s CNRs do not support any functional limitations. Further, both IE reports note that the applicant went back to his pre-accident activities following the accident: he returned to work, carries out his own personal care and resumed driving. In addition, it is well accepted that submissions are not evidence. I conclude that the applicant has not met his onus in proving that he suffers from chronic pain which removes him from the MIG.
Psychological Impairment
14I find that the applicant did not sustain a psychological impairment as a result of the accident which removes him from the MIG for the following reasons.
15The applicant submits that he sustained a psychological impairment as a result of the accident because he suffers from insomnia and driving anxiety which he consistently reported to Dr. Liu and Dr. Aliabadi. First, I find insomnia is not a psychological diagnosis and was only referred to once on May 17, 2023 in Dr. Liu’s CNRs. This same note states “He denies anxiety.” Further, the one CNR of Dr. Aliabadi does not make any reference to driving anxiety.
16The respondent relies on the IE report of Dr. D. Dumitrascu who found no diagnosable psychological impairment. The doctor administered psychological testing which revealed validity issues and results that were inconsistent with the applicant’s clinical presentation. While I note that the applicant reported nervousness while being in a car, he advised the doctor that he avoids driving long distances because of stiffness in his neck and denied having emotional responses to driving or being a passenger. I accept Dr. Drumitrascu’s opinion because the applicant has not submitted any persuasive evidence to refute it.
17For the above-noted reasons, I find the applicant has not met his onus in proving on a balance of probabilities that he suffers from either chronic pain or a psychological impairment which warrants removal from the MIG.
18Since the OCF-18s in dispute seek treatment outside of the MIG and there is only $3.25 remaining in the limit, it is unnecessary for me to determine whether they are reasonable and necessary.
Interest
19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.
Award
20The 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. The applicant submits that the respondent unreasonably withheld the benefits in dispute by maintaining its position on the MIG. Further, the respondent breached its duty of care by failing to consider all of the medical evidence supporting that the applicant was out of the MIG. Considering my decision in this matter, I find that an award is not payable as I have not determined that the respondent unreasonably withheld any benefits or was unreasonable in maintaining its MIG position. For this reason, I find it unnecessary to address the respondent’s motion seeking to exclude the award issue as an issue in dispute for the applicant’s failure to disclose full particulars of the award claim.
ORDER
21For the above-noted reasons, the applicant’s injuries are minor and subject to treatment within the $3,500 MIG limit. He is not entitled to the benefits in dispute, interest or an award.
Released: September 29, 2025
Rebecca Hines
Adjudicator