Licence Appeal Tribunal File Number: 24-012225/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:
Meihua Xu
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Anil Hampole, Counsel
For the Respondent:
Bruce Keay, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Meihua Xu, the applicant, was involved in an automobile accident on May 10, 2024, 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, Co-operators 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?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from June 7, 2024 and ongoing?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan submitted on November 14, 2024?
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?
3In its submissions, the respondent confirmed that the issues listed as Issues 3i, 3ii and 5 in the Case Conference Report and Order, had been resolved by the parties.
RESULT
4The applicant’s accident-related impairments are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG.
5The applicant is not entitled to non-earner benefits, the treatment plan in dispute, an award or interest.
6The application is dismissed.
ANALYSIS
Minor Injury Guideline
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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 person 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 has not established accident-related impairments that warrant removal from the MIG
9In the subject accident, the applicant had been riding her bicycle when a car door had opened, striking the applicant and causing her to fall. The applicant submits that as a result of the accident, she has sustained serious physical and psychological injuries. She relies on a psychological pre-screening report dated November 4, 2024 by Dr. Sedigheh Naisi, psychologist, to argue that she suffers from psychological symptoms after the accident. The applicant further relies on hospital records and an OCF-18 prepared by Dr. Richard Tavares, chiropractor, to argue that she sustained a left shoulder injury and suffers from ongoing pain as a result of the accident.
10I find that the applicant has not proven on a balance of probabilities that she has sustained non-minor injuries as a result of the accident.
11With respect to the applicant’s claim that she should be removed from the MIG on psychological grounds, the applicant relies in large part on the November 4, 2024 pre-screening report by Dr. Naisi. In this report, Dr. Naisi noted the applicant’s feelings of hopelessness and symptoms of depression and anxiety. The report recommended that a full psychological assessment be conducted. However, I note that this pre-screening did not contain any formal psychological diagnosis. Moreover, I agree with the respondent that the applicant’s reports in the pre-screening, that she suffers from psychological symptoms as a result of the accident, are not corroborated by the objective medical record.
12The applicant does not direct me to any clinical notes and records (“CNR”) entry from her family physician Dr. Yulong Pu, where she reported psychological symptoms as a result of the accident. Although the applicant attended Dr. Pu’s office regularly in the period post-accident, she does not direct me to any entry where accident-related psychological concerns were discussed, or where Dr. Pu diagnosed the applicant with a psychological condition as a result of the accident. Rather, Dr. Pu’s records disclose that in the period pre-accident, on November 21, 2023, the applicant had reported psychological symptoms and was prescribed anti-anxiety medication, due to a stressful incident at school.
13Similarly, the hospital records also do not disclose any reports of psychological symptoms as a result of the accident. Without any corroborating medical evidence to support an accident-related psychological impairment, I find that the applicant has not established that she should be removed from the MIG on psychological grounds.
14I further find that the applicant has not established that her left shoulder injury/pain falls outside the definition of a minor injury. The hospital records establish that the applicant had hurt her left shoulder and left elbow as a result of the accident. An X-ray was conducted at the hospital and no fracture was noted. The applicant continued to report left shoulder pain for a few months post-accident, but these reports to Dr. Pu had stopped by August 2024. The applicant does not direct me to any diagnosis by her family doctor that would support that she sustained a non-minor injury as a result of the accident.
15The applicant was further seen by a rheumatologist, Dr. Potashner, who noted in a report dated September 19, 2024 that the applicant’s left elbow pain had resolved, that her shoulder pain was improving and that she had returned to playing tennis. Dr. Potashner recommended a steroid injection for the left shoulder, which he stated should “eliminate her problem completely”. The applicant does not direct me to any subsequent CNR entry or report which indicated that her left shoulder injury/pain continued past this date.
16Accordingly, I find that the medical record does not support that the applicant developed a non-minor physical injury or chronic pain as a result of the accident, to warrant removal from the MIG.
17As I have found that the applicant has not established that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan.
Non-Earner Benefits
18I find that the applicant has not established entitlement to non-earner benefits (“NEBs”).
19Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
20I find that the applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life.
21The applicant has provided limited details of her pre-accident activities or demonstrated how her participation in those activities has been limited as a result of the accident. The applicant provides the general submission that she reported to Dr. Naisi as part of the psychological pre-screening that she had suspended her social activities, and that she struggled with household chores and outdoor work. However, no details of these activities were provided.
22The applicant further did not provide submissions on which activities were most important to her, how she is prevented from engaging in the activities she normally engaged in pre-accident or evidence of the frequency and time commitments of her pre-accident activities, as required by Heath and in many NEB cases at the Tribunal, such as 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ONLAT). In the absence of this information, I cannot compare the applicant’s pre and post-accident capabilities with respect to the activities she ordinarily engaged in or valued.
23Finally, the applicant has not directed me to any medical opinion or medical evidence from her treating practitioner that she suffers a complete inability to carry on a normal life. Although she submits an OCF-3 prepared by Dr. Richard Tavares, chiropractor, which notes a complete inability to carry on a normal life, I note that an OCF-3 alone does not establish whether an applicant has met the test for entitlement to NEBs. Rather additional objective medical evidence is required. The applicant has not directed me to any CNR entry from her family physician to establish how her accident-related impairments prevented her from engaging in her pre-accident activities.
24I find the applicant has not provided sufficient submissions or evidence to allow me to assess any potential changes to her pre-and post-accident activity levels. As such, I find that the applicant has not established entitlement to NEBs for the period in dispute.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.
Award
26The 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 has not provided any submissions on why an award is warranted. Without any submissions on this issue, I find that the applicant has not established grounds for an award.
ORDER
27The applicant’s accident-related impairments are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG.
28The applicant is not entitled to non-earner benefits, the treatment plan in dispute, an award or interest.
29The application is dismissed.
Released: March 27, 2026
Ulana Pahuta
Adjudicator