Citation: Wang v. Intact Insurance Company, 2026 ONLAT 24-009182/AABS

Licence Appeal Tribunal File Number: 24-009182/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:

Li Wang

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Paul Giuliano, Counsel

For the Respondent:

Eluxmeenah Rishihesan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Li Wang, the applicant, was involved in an automobile accident on June 17, 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, 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:

1. 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?

2. Is the applicant entitled to physiotherapy services proposed by HealthMax as follows:

i. $4,362.98, in a treatment plan (“OCF-18”), submitted April 26, 2024; and

ii. $4,307.95, in an OCF-18 dated June 11, 2024?

3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3After reviewing both parties’ submissions and evidence, I find that the applicant sustained a minor injury and is subject to treatment in the MIG limit. She is not entitled to the OCF-18s, interest or an award.

ANALYSIS

The applicant sustained a minor injury which is treatable in 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 her accident-related impairments fall outside of the MIG.

6The applicant argues that she should be removed from the MIG because she sustained a left shoulder impingement and has been diagnosed with frozen shoulder which has resulted in chronic pain. In support of her position, she relies on the clinical notes and records (“CNRs”) of Dr. Chang, family doctor, and CNRs of her treating clinic.

7The respondent submits that the applicant’s accident-related impairments fall within the definition of a minor injury. It maintains that the applicant has not met her onus in proving that she should be removed from the MIG as a result the above criteria. It relies on the insurer examination (“IE”) report of Dr. Jugnundan, general practitioner dated June 25, 2024, who determined that the applicant sustained soft tissue injuries which can treated in the MIG.

8I find the applicant sustained a minor injury for the following reasons.

9First, I find the CNRs of Dr. Chang establish that the applicant sustained a minor injury. The applicant first visited her family doctor on July 7, 2021, where she reported neck and back pain. The doctor diagnosed the applicant with neck and back strain and sprain, which I find fits within the definition of a minor injury. The doctor conducted a physical examination which noted that her range of motion (“ROM”) in both shoulders was mildly limited.

10The applicant first reported pain in left shoulder to her family doctor on November 21, 2021 (five months post-accident), where the doctor noted limited ROM – likely impingement. An-x-ray dated December 14, 2021, confirmed the impingement and a partial tear of the left shoulder. I find that partial tears are captured within the MIG definition. The applicant has not persuaded me that a shoulder impingement or frozen shoulder removes her from the MIG. I also note that the family doctor’s CNRs refer to an updated x-ray and ultrasound which confirmed that the applicant had osteoarthritis and degenerative changes in her left shoulder which I find the applicant has not linked to the accident.

11Between the date of the accident and June 25, 2024, the applicant attended her family doctor’s office on six occasions where left shoulder pain is reported and the doctor notes limited ROM. She attended twice in 2022 and twice in 2024. I find the applicant’s sparse visits to her family doctor over a three-year period does not establish that she suffers from chronic pain. Further, although the family doctor’s CNRs note that the applicant had limited ROM there is no further discussion of any functional limitations as a result in the records.

12Second, I find the CNRs of the applicant’s treating clinic do not support that she should be removed from the MIG due to chronic pain. Although the CNRs establish that the applicant made pain complaints, I find the CNRs establish that she attended the clinic for treatment and they do not discuss any functional impairments as a result which is a requirement for removal from the MIG due to chronic pain.

13Third, the applicant relies on the Tribunal’s decision in A.A v. Technology Insurance Company Inc. (“AA”), 2020 CanLII 12719 (ON LAT) which discuss some criteria the adjudicator found persuasive in determining whether a person has chronic pain. Those criteria are as follows:

a. Whether the person suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain.

b. Whether the person’s pain has persisted well beyond the normal healing times for the injuries sustained.

c. Whether the pain is not a clinically associated sequela to minor injuries.

d. Whether the person’s pain has caused functional impairment and disability. That is, whether it significantly disrupts or disables pre-accident activities of daily living.

14The applicant submits that she meets all of the above criteria in that she suffers from constant pain as evidenced by her regular visits to her family doctor; the accident happened four years ago, and she still continues to experience pain, increased anxiety and depression; her pain is not clinically associated sequalae; and it has caused functional impairment as the applicant was forced to stop working.

15It is important to note that I am not bound by other Tribunal decisions. However, I find the scenario in AA distinguishable from this case because the adjudicator had medical records and reports before them which confirmed that the insured was taking pain medication and was receiving weekly pain injections. In addition, they also had medical evidence in which doctors determined that the insured was unfit to work as a result of their ongoing pain. In this case, I do not have any medical evidence before me to support that the applicant has any functional limitations as a result of ongoing pain. The applicant submits that she was forced to stop working. It is well established that submissions are not evidence, and I do not have any evidence before me to support the applicant’s submissions regarding functional impairment. Likewise, the applicant did not direct me to the evidence which supports her submission that she has increased anxiety and depression as a result of any ongoing pain.

16In contrast, the respondent relies on the IE report of Dr. Jugnundan who diagnosed the applicant with soft tissue injuries which could be treated in the MIG. The applicant argues that I should give the IE report of Dr. Jugnundan little weight because he did not list of all of the medical records reviewed in the past medical history section of this report which note degenerative changes. Further the doctor stated in their report “at this stage, three years later, prognosis is guarded as she is still symptomatic” and then stated that “these types of injuries are temporary in nature.” Based on the medical evidence before me I find Dr. Jugnundan’s IE report persuasive because it is consistent with the medical evidence before me. However, I find that even if I give this IE report no weight, I find the applicant has not met her onus in proving that she suffers from chronic pain as a result of the accident which removes her from the MIG.

The applicant is not entitled to the OCF-18s in dispute

17The applicant is not entitled to either of the OCF-18s in dispute because they both seek treatment out of the MIG, and as of the date of the case conference only $42.00 remained in the MIG limit. However, the applicant also argues that the respondent did not comply with s. 38(8) of the Schedule in its denial of the second OCF-18 in dispute which I will discuss now.

18Section 38(8) of the Schedule outlines that within 10 days of receiving a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan the insurer agrees to pay for, any the insurer does not agree to pay for and 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. Section 38(11) 2 of the Schedule supports that if an insurer’s notice does not comply with s. 38(8) it is liable to pay for the OCF-18 if it is incurred by the insured after the 11^th^ day until the insurer provides a compliant notice.

OCF-18 dated June 11, 2024 ($4,307.95)

19The applicant submits that the OCF-18 in the amount of $4,307.95 was denied based on the IE report of Dr. Jugnundan without a new assessment despite the fact that it was submitted five months later. The applicant submits that the respondent’s denial of the OCF-18 was deficient because it was based on its position that the MIG applied and that it failed to provide a medical reason.

20In response to the submission of the OCF-18, the respondent sent the applicant a letter dated September 6, 2024, which stated that it had received the OCF-18 on September 3, 2024 seeking manipulation services in the amount of $4,307.95. Under medical reason, the letter stated “The OCF-18 is being denied based on the following medical and all other reasons: Section 44 assessment, Pravesh Jugnundan (GP) advised: As a result of the motor vehicle collision of three years ago, June 17, 2021, Ms. Wang sustained soft tissue injuries: Based on the assessment, she sustained a minor injury as there was no evidence of any significant osseous, neurological, or muscular pathology. The request from HealthMax Physiotherapy's for various forms of physical rehabilitation including chiropractic, physiotherapy, and ancillary services, is not reasonable and necessary. It is noted she has received an extensive amount of physical therapy. Ongoing formal physical therapy would not be of any significant added benefit at this juncture more than a self-directed home exercise program."

21Based on the evidence before me, I find that the respondent’s denial complied with s. 38(8) of the Schedule in that it responded to the OCF-18 within 10 days, it advised the applicant that her impairments fit within the MIG, and then it provided a medical reason which was based on the findings of the IE report of Dr. Jugnundan. I find that an unsophisticated party would understand why the OCF-18 was being denied in order to make an informed decision to dispute the denial.

The applicant is not entitled to interest

22Interest 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 payments are overdue.

The applicant is not entitled to an award

23In the Tribunal’s case conference report and order the 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’s submissions did not address the award issue. In light of my decision in this matter, I find an award is not warranted in this case.

ORDER

24For the above-noted reasons, I order as follows:

1. The applicant sustained a minor injury and is subject to treatment in the MIG limit. She is not entitled to the OCF-18s, interest or an award.

2. This application is dismissed.