Zhou v. Certas Home and Auto Insurance Company, 2026 CanLII 31479

Citation: Zhou v. Certas Home and Auto Insurance Company, 2026 ONLAT 24-002655/AABS

Licence Appeal Tribunal File Number: 24-002655/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:

Yufan Zhou

Applicant

And

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Estella Muyinda

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Adam Fox, Counsel

HEARD: By way of written submissions

OVERVIEW

1Yufan Zhou, the applicant, was involved in an automobile accident on February 14, 2023, 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, Certas Home and Auto 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 with the $3,500.00 Minor Injury Guideline (MIG) limit?
2. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 15, 2023, to date?
3. Is the applicant entitled to $164.75 ($1,299.30 less $1,34.55 approved) for chiropractic services, proposed by Easy Health Centre in a treatment plan/OCF -18 (“plan”) dated May 9, 2023?
4. Is the applicant entitled to $2,200.00 for a psychological assessment treatment proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated June 19, 2023?
5. Is the respondent liable to pay an award under s. 10 of Reg .664 because it unreasonable withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment with the $3,500.00 MIG limit.

4The applicant is not entitled to a non-earner benefit of $185.00 per week from March 15, 2023, to date.

5As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.

6The respondent is not liable to pay an award under s. 10 of Reg .664 because it did not unreasonably withhold or delay payments to the applicant.

7The applicant is not entitled to interest on any overdue payment of benefits.

PROCEDURAL ISSUES

Production Orders

8The respondent raised an issue pertaining to the production of documents contrary to rule 9.4.4, Statutory Accident Benefit Schedule. The respondent submits that the applicant did not provide requested documentation. It is asking that the Tribunal draw an adverse inference.

9I acknowledge the respondent’s submissions with respect to the missing productions, specifically, that the applicant has not produced clinical notes from any family or treating physicians or medical professional’s CVs, despite agreeing to do so at the case conference. These items are listed in the Case Conference Report and Order dated July 23, 2024 (CCRO) where it is noted the applicant agreed to produce them. To the extent necessary, I will address the respondent’s request to draw an adverse inference in my analysis below.

ANALYSIS

Application of the Minor Injury Guideline (MIG)

10I find the applicant has not met his burden in establishing that his accident-related injuries fall outside the definition of a minor injury as set out in s. 3(1) of the Schedule.

11Section 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.”

12An 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 from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

13In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.

14The applicant submits that he should be removed from the MIG on two grounds. Firstly, that he sustained a psychological impairment and secondly, because he suffers chronic pain as a result of the accident. The respondent disagrees and submits that the applicant should remain in the MIG.

Psychological injury

15I find that the applicant has not established on a balance of probabilities that he sustained a psychological impairment that warrants removal from the MIG.

16The applicant self reported feelings of hopelessness and symptoms of depression and anxiety since the accident to Dr. Mehrdad Pojhan, psychologist. He stated that he has difficulty resuming his daily responsibilities and has trouble fully performing his care activities due to physical and psychological impairments. The applicant reported reduced social interactions and difficulty engaging in his pre-accident recreational activities.

17The applicant submits that he did not visit a family doctor or walk-in clinic following the accident. He attended physiotherapy treatment twice a week. The applicant relies on Dr. Pojhan’s pre-screening report dated June 12, 2023, in support of the claim for his psychological injuries. In the pre-screening report, Dr. Pojhan states that he diagnosed the applicant with depression, frustration, irritation, worry, and stress.

18Dr. Pojhan recommends that the applicant be removed from the MIG. Dr. Pojhan opined that it is necessary to assess further and evaluate the applicant’s current psychological status and further understand his background, history, and past/current medical conditions to understand the accident from his perspective entirely. Dr. Pojhan opined that an assessment and evaluation of the applicant will help determine the proper course of treatment.

19Further, the applicant states that the respondent has not submitted any competing medical evidence to dispute the medical recommendations by Dr. Pojhan, Dr. Nemati, and the disability certificate. Furthermore, the applicant submits that there is no independent medical evidence that the respondent relies on to keep him within the MIG.

20It is well established that the burden is on the applicant to prove that he should be removed from the MIG. I find that the respondent has no obligation to provide evidence that would remove the applicant from the MIG. The respondent has the discretion to arrange or conduct IE. I find that the onus is on the applicant to prove that he warrants removal from the MIG.

21The respondent asserts that the applicant has not adduced any supportive objective medical evidence that demonstrates that his psychological injuries fall outside the MIG. The respondent submits that the pre-screening assessment made by Dr. Pohjan cannot be relied upon because it is a continuum of the OCF-18, based on self reporting by the applicant of his injuries.

22Additionally, the respondent submits that despite requests, the applicant has not provided any clinical notes or other records that demonstrate that he had any psychological testing, nor does the report from Dr. Pohjan state that any occurred. Further, the respondent asserts that the applicant has not submitted evidence to demonstrate that there was any concern for the applicant’s psychological status because there are no clinical notes and records (CNR), nor assessment by a qualified treating professional or family doctor, other than the preliminary assessment itself. Furthermore, the respondent argues that the applicant’s injuries remain within the MIG because there is no objective medical evidence to support the applicant’s claim of psychological injuries.

23I agree with the respondent that the applicant has provided no objective medical evidence to support his claim. The applicant relies on the pre-screening assessment report by Dr. Pojhan to establish that he has a psychological injury. I am of the view that Dr. Pojhan’s assessment report is not enough, particularly in the absence of corroborating evidence from independent medical assessments.

24Upon review, I note that the applicant has not provided any medical evidence that he continues to suffer from the psychological injury following the accident, nor has he provided clinical records or reports or supporting medical evidence from medical service providers that point to a psychological injury.

25I find that the applicant has not submitted corroborating medical evidence from his medical service providers that would establish his experience of a psychological impairment as a result of the accident.

26For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he sustained a psychological impairment that warrant his removal from the MIG.

27Accordingly, the applicant remains within the MIG.

Chronic Pain

28I find that the applicant does not suffer from chronic pain with functional impairment that warrants removal from the MIG.

29The applicant submits that the physical impairments sustained in the accident have resulted in chronic pain that causes him functional impairment. To this end, he relies on an OCF-18 completed by Dr. Hadi Fateh Nemati, physiotherapist from Easy Health Centre dated May 23, 2023; a psychological pre-screen report by Dr. Pohang, dated from June 12, 2023; clinical notes and records from Easy Health Centre dated from August 27, 2024; and a Disability Certificate (OCF-3) dated May 23, 2023.

30The applicant submits that Mr. Nemati opined that the applicant experienced neck pain, low back pain, thoracic spine pain and myalgia. Mr. Nemati noted that range of motion (ROM) deficiencies and associated pain in the regions of cervical, thoracic and lumbar spine have impaired the applicant’s ability to perform gripping, lifting, bending and certain flexion and adduction/abduction activities which are essential to conduct his pre-accident activities.

31The respondent submits that the applicant does not suffer from chronic pain syndrome and that a diagnosis of chronic pain, without evidence of functional impairment, is insufficient to warrant removal from the MIG. The respondent emphasizes that the Tribunal requires evidence that chronic pain is accompanied by a functional impairment that prevents the applicant from engaging in substantially all his pre-accident activities.

32I agree with the respondent that the applicant has not submitted evidence that warrants his removal from the MIG on this ground.

33I find that the applicant has not submitted evidence that supports a finding that he experiences chronic pain with a functional impairment. The CNRs from Easy Health Centre and Somatic Assessments and Treatment Clinic do not include reports of chronic pain. While the OCF-18 completed by Mr. Nemati indicates the applicant has pain and references impairments in functioning, it is not supported by any other medical evidence of pain or functional impairment. In my view, the treatment plan alone is not sufficient evidence to establish that the applicant should be removed from the MIG, in the absence of corroborating medical evidence.

34As a result, I find that the applicant has not demonstrated on a balance of probabilities that his chronic pain is accompanied by a functional impairment of the nature and severity that warrants removal from the MIG. Accordingly, I find that there is no evidence before me that establishes that the applicant has a chronic pain condition with a functional impairment that would justify removal from the MIG.

Non-Earner Benefit (NEB)

35I find that the applicant has not established, on a balance of probabilities an entitlement to the Non-Earner Benefit (NEB) in the amount of $185.00 per week from March 15, 2023, to date.

36Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains 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 focuses on a comparison of the applicant’s pre- and post-accident activities.

37The Court in Heath also detailed the proper analytical approach for the determination of entitlement to a non-earner benefit. These principles include:

i. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident. The duration of which will depend on the facts of the case.

ii. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life.

iii. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities. This means that the disability or incapacity must be uninterrupted.

iv. “Engaging in” should be interpreted from a qualitative perspective. Even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.

v. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.

38The applicant submits that the respondent has unreasonably denied all non-earner benefits. The applicant claims that he is experiencing significant impairments in his activities of daily living, including pain and psychological symptoms. The applicant states that his current symptoms significantly interfere with his return to his full level of pre-accident level functioning.

39The applicant submits that no NEB benefits have been paid to date despite the submission of an OCF-3 and medical documentation. The applicant relies on his Disability Certificate (OCF-3) dated May 23, 2023, completed by Hadi Fateh Nimeni, physiotherapist of Easy Health Centre. Mr. Nimeni stated that the applicant was unable to carry on a normal life with an anticipated duration of more than 12 weeks due to his inability to perform housekeeping and home maintenance services. The clinical notes from Easy Health Centre show that the applicant’s neck, mid back and lower back are aggravated by prolonged sitting, bending and walking.

40The respondent submits that the applicant has failed to provide evidence to satisfy the NEB test as set out in Heath. The first stage of the Heath analysis compares the insured person's activities and life circumstances before and after the accident, giving more weight to pre-loss activities deemed important by the insured.

41The respondent states that the OCF-3 and the treatment plans submitted by the applicant do not point to any evidence relating to the applicant’s post accident activities, except the OCF-3 noting the applicant’s inability to carry on a normal life. As well, in the OCF-3 the applicant indicated that he was enrolled in an education program at the time of the accident and indicated that he was able to go back to school at the University of Toronto after the accident. According to the respondent, this indicates that he had the ability to undertake a pre-accident activity.

42I agree with the respondent. I find that I am unable to assess the applicability of the test in Heath in order to determine if the applicant suffers from a complete inability to carry on a normal life, because the applicant does not provide evidence of any details of the pre-accident activities or demonstrate how his participation in those activities has been limited as a result of the accident. The applicant does not point to the activities that were most important, how he is prevented from engaging in the activities he normally engaged in pre-accident or evidence of the frequency and time commitments of his pre-accident activities. As a result, it is not possible to compare the applicant’s pre- and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.

43Therefore, I find that the applicant has not established that he suffered from a complete inability to carry on a normal life as a result of the accident from January 4, 2022, to December 7, 2023. As a result, I find on a balance of probabilities that the applicant has not established entitlement to an NEB.

Is the applicant entitled to the disputed treatment plans?

44I find that the applicant remains within the MIG. Therefore, I do not need to address whether the disputed treatment plans are reasonable and necessary because the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

Award

45The 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.

46The applicant submits that he is entitled to an award because he was unreasonably denied benefits because the respondent acted in a high-handed manner and ignored his medical records of treating practitioners and assessors.

47The respondent submits that that the applicant has no grounds to support his claim for an award as he failed to provide objective medical records in spite of the requests it made.

48I do not find that the applicant has established a basis for an award. The applicant did not provide any evidence with respect to an award. As, a result, I find that the applicant has not met her onus to prove on a balance of probabilities that any payments were unreasonably withheld or delayed. Accordingly, the applicant is not entitled to an award.

Interest

49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because there are no overdue benefits.

ORDER

50The applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and are therefore subject to treatment with the $3,500.00 Minor Injury Guideline limit.

51The applicant is not entitled to a non-earner benefit of $185.00 per week from March 15, 2023, to date.

52As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.

53The respondent is not liable to pay an award under s. 10 of Reg .664.

54The applicant is not entitled to interest.