Licence Appeal Tribunal File Number: 24-000120/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:
Jun Ming Yi
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Leo Demarce
APPEARANCES:
For the Applicant:
Yan Li, Counsel
For the Respondent:
Alfred Cheng, Counsel
HEARD:
By way of written hearing
OVERVIEW
1Jun Min Yi, the applicant, was involved in an automobile accident on June 30, 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, The Dominion of Canada General 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? Note: The parties agree $3,473.75 has been paid to the date of the case conference.
ii. Is the applicant entitled to $1,548.00 for physiotherapy services, proposed by PhysioMed Milton, in a treatment plan/OCF-18 (“plan”) submitted on February 2, 2023?
iii. Is the applicant entitled to $3,626.97 for psychological services, proposed by Perfect choice Psychological Services Inc., in a plan submitted on November 24, 2022?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Perfect Choice Psychological Services Inc., in a plan submitted on May 27, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the applicant entitled to costs.
3The issue of costs above was added in the applicant’s written submissions,
RESULT
4I find that the applicant’s injuries are minor as defined in the Schedule, and that the applicant is confined to the MIG.
5As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
6The respondent is not liable to pay an award under s. 10 of Reg. 664.
7The applicant is not entitled to interest on any overdue payment of benefits.
8The applicant is not entitled to costs.
ANALYSIS
Minor Injury Guideline
9The applicant is seeking to be removed from the MIG by way of a psychological impairment diagnosis, or a chronic pain diagnosis. The applicant asserts that his injuries go beyond the definition of s.3(1) because he sustained psychological disorders as a result of the subject accident.
10Section 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.”
11An 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.
The applicant does not have a psychological impairment that would qualify them to be removed from the MIG.
12I find that the applicant has not pointed to compelling medical evidence to persuade me to remove them from the MIG due to a psychological condition, because I am unable to relate his psychological issues as reported to his family physician Dr. Zhao, to the accident.
13The applicant relies on the clinical notes and records (“CNR”) of Dr. Zhao to provide the medical evidence that he has sustained a psychological impairment because of the accident.
14The applicant’s first consultation with Dr. Zhao after the accident was on March 19, 2022 which is approximately 9 months post accident, although Dr. Zhao comments that the accident was 6 months prior. This consultation was by telephone (due to Covid). Dr. Zhao’s clinical notes and records (“CNR”) do not report a physical examination with the applicant, all consultations were over the phone. The applicant’s complaint was lower back pain and Dr. Zhao recommended Yoga.
15The second phone consultation with Dr. Zhao on May 4, 2022 states that the applicant may have PTSD, and further consultation with a psychologist was necessary to make that determination. The notes also identify the applicant’s lower back pain as gradually improving but does not definitively relate it to the accident as the notes state “MVA?”, indicating that Dr. Zhao was not sure of the relationship between the symptoms and their cause.
16The applicant further relies on the CNR of Dr. Zhao dated October 13, 2022 and claim a diagnosis of General Anxiety Disorder (“GAD”) and Major Depressive Disorder (“MDD”). Dr. Zhao prescribed Cipralex and recommended that the applicant attended Bounce Back. Dr. Zhao referred the applicant to Dr. Levitsky, psychiatrist, but the applicant does not point to any CNR from this psychiatrist or documentation to show that the applicant has attended to a mental health care professional.
17The applicant seeks to have all denied treatment plans approved, be elevated out of the MIG, be granted an award, and interest on overdue treatment. The applicant is also seeking costs.
18The respondent’s position is that the applicant has failed to satisfy his onus of proving that his injuries fall outside of the MIG.
19The respondent points to:
i. The lack of a physical examination by Dr. Zhao.
ii. That the applicant did not seek immediate medical treatment, and that his first telephone consultation with Dr. Zhao was 9 months post accident.
iii. That the applicant went back to work full time within one week of the accident as a scientist at Omega Laboratories.
iv. A psychological insurer examination (“IE”) by Dr. Rakesh Ratti on July 13, 2022 concluding that the applicant does not suffer from a psychological impairment.
v. A physiatry IE by Dr. Deborah Rabinovich on March 3, 2023 finding that the applicant’s physical injuries are minor and fall within the MIG.
vi. CNR from Dr. Zhao dated October 1, 2022 discuss work-related stress, increased workload, and caring for a young child.
vii. CNR from Dr. Zhao dated February 3, 2023 indicate that the applicant was no longer taking any meds and that his mood has improved overall. The respondent also states that there is no indication that the prescription for Cipralex was for accident-related reasons.
20In sum, the respondent’s position reflects that the applicant did not seek medical attention until 9 months post accident, and that his psychological complaints cannot be related to the accident in question in that there is no correlation between the complaints and the accident.
21The respondent requests that the Tribunal recognize that the applicant has not proven that they should be removed from the MIG, and as a result there are no treatment plans, award, or interest payable.
22With respect to the MIG, I put more weight on the respondent’s evidence for the following reasons:
i. Dr. Zhao does not conclusively tie the applicant’s symptoms and complaints to the accident.
ii. The respondent had a physiatry IE as well as a psychological IE and both found the applicant’s physical/psychological injuries fall within the MIG.
23I find on a balance of probabilities that the applicant has not pointed to medical evidence to warrant removal from the MIG due to a psychological condition.
The applicant has not provided sufficient evidence to warrant a removal from the MIG on the basis of chronic pain.
24I find that the applicant has not demonstrated on a balance of probabilities that he suffers from chronic pain that warrants removal from the MIG.
25As set out above, the applicant may be removed from the MIG if they suffer from chronic pain as a result of the accident. However, it is not enough for the insured to have pain over an extended duration of time – it must be accompanied by functional impairment.
26The applicant argues that he has had ongoing back pain that has caused a functional limitation and has far exceeded the six-month time frame which the Tribunal has accepted as a condition that persists for three to six months after the initial injury.
27The applicant relies on the CNR of Dr Zhao stating that the applicant repeatedly and consistently complained of back pain, resulting in poor sleep, as a result of the accident.
28The applicant also relies on the CNR of Dr. Anca Patroi of Milton Family Care Centre dated June 24, 2023, that the applicant was still suffering from mechanical back pain that started after the accident.
29I find that the applicant has not proven on a balance of probabilities that his ongoing back pain is related to the subject accident because:
i. There is a lack of evidence of chronic pain in the CNRs or mention of a chronic pain syndrome.
ii. There is a lack of evidence to point to a functional impairment as a result of the applicant suffering from chronic pain.
iii. Dr. Zhao did not conclusively tie the applicant’s symptoms and complaints to the accident.
iv. Dr. Anca Patroi examined the applicant 2 years post accident and as a result I give her examination little weight with regards to tying the symptoms and complaints of the applicant to the subject accident.
v. The respondent had a physiatry IE as well as a psychological IE and both found the applicant’s physical/psychological injuries fall within the MIG.
30I also find that the applicant has not pointed or directed me to evidence that he suffers from a functional limitation as a result of chronic pain. The respondent states that the applicant went back to work one-week post-accident on a full-time basis and assists in the care of his household and his infant child. The applicant also attended a psychology IE performed by Dr. Rakesh Ratti dated July 13, 2022 that notes that the applicant denied any caregiving concerns and was independent with his self care.
31I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain because of the accident.
32As I have found the applicant’s injuries to be within the MIG, he is entitled to treatment within the MIG limits. It is not necessary to determine if the treatment plans for physiotherapy services, psychological services, or a psychological assessment are reasonable and necessary.
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have not determined that any benefits are overdue, the applicant is not entitled to interest.
Award
34The applicant also sought an award under s. 10 of O. Regulation 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. Since no benefits were unreasonably delayed or withheld by the insurer, the applicant is not entitled to an award.
The applicant seeks Costs
[35] I find that the applicant is not entitled to the costs associated with this hearing.
[36] Rule 19.5 states that in considering whether to award costs, I must consider all relevant factors, including the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to other parties and the potential impact an order for costs would have on individuals accessing the Tribunal system.
[37] In her written submissions the applicant requested costs but did not identify any amount nor did he provide any submissions as to the reason why he should be awarded costs as outlined in Rule 19.5.
[38] I find that the applicant is not entitled to costs. The respondent did not commit any misconduct, or breach a direction or order issued by the Tribunal, and the respondent’s behaviour did not interfere with the Tribunal’s ability to carry out a fair, efficient, and effective process. Awarding costs in this case would not align with the intention of Rule 19.5.
ORDER
39I find that the applicant’s injuries are minor, and that the applicant is confined to the MIG.
40The applicant is not entitled to $1,548.00 for physiotherapy services, proposed by PhysioMed Milton, in a treatment plan/OCF-18 (“plan”) submitted on February 2, 2023.
41The applicant is not entitled to $3,626.97 for psychological services, proposed by Perfect choice Psychological Services Inc., in a plan submitted on November 24, 2022.
42The applicant is not entitled to $2,200.00 for a psychological assessment, proposed by Perfect Choice Psychological Services Inc., in a plan submitted on May 27, 2022.
43The respondent is not liable to pay an award under s. 10 of Reg. 664.
44The applicant is not entitled to interest on any overdue payment of benefits.
45The applicant is not entitled to costs.
Released: March 3, 2026
Leo Demarce
Adjudicator