Citation: Tang v. Aviva General Insurance Company, 2026 ONLAT 24-008956/AABS

Licence Appeal Tribunal File Number: 24-008956/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:

Xiaoxia Tang

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Leo Demarce

APPEARANCES:

For the Applicant:

Ryan Olson, Counsel

For the Respondent:

Tefiney E Scarlett, Paralegal

HEARD:

By way of written hearing

OVERVIEW

1Xiaoxia Tang, the applicant, was involved in an automobile accident on July 20, 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, Aviva 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 limit (“MIG”)? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $225.62 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated September 26, 2023?

iii. Is the applicant entitled to $4,348.56 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan dated November 23, 2023?

iv. Is the applicant entitled to $2,200.00 for an in-home occupational therapy assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated July 28, 2023?

v. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated August 16, 2023?

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

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

RESULT

3The applicant’s injuries are predominantly minor and, therefore, are within the MIG.

4The applicant is not entitled to the treatment plans for chiropractic services, In-home OT assessment or a psychological assessment.

5The respondent is not liable to pay an award.

6As there is no overdue payment of benefits, there is no interest due.

ANALYSIS

The applicant remains within the MIG

7I find that the applicant has not proven, on a balance of probabilities, that her accident-related injuries warrant removal from the MIG.

8Section 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.”

9An 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant seeks to be removed from the MIG because of psychological impairments and/or due to chronic pain with a functional impairment.

The applicant is not removed from the MIG due to a psychological impairment

11I find that the applicant has not proven, on a balance of probabilities, that she suffers from a psychological impairment that would warrant removal from the MIG.

12The applicant relies on the following:

i. Pre-screening report of Dr. Sedigheh Naisi, Psychologist, dated August 2, 2023. Reported physical pain, sleep issues, mood issues, social withdrawal and difficulty concentrating. Recommended a psychological assessment.

ii. In-home OT pre-screening report of Raymond Wong, Occupational Therapist, dated August 1, 2023. The report notes that the applicant is experiencing limitations and restrictions as a result of the accident. The report indicates that the applicant needs to be properly assessed and would require some attendant care needs.

iii. s. 44 assessment report by Ms. Dawn Li, Occupational Therapist, dated March 27, 2024. The applicant submits that Ms. Li confirmed that the applicant appeared fatigued towards the end of the assessment.

iv. s. 44 assessment report of Dr. Debra Mandel, Psychologist, dated March 27, 2024. The report states that the applicant made complaints relating to sleep, fatigue, anxiety and hypervigilance.

13The applicant submits that based on the totality of the medical evidence submitted above, the applicant suffers from a psychological impairment as a direct result of the accident, placing her outside of the MIG.

14The respondent submits that the applicant has not provided sufficient medical evidence that she suffers from a psychological impairment as a direct result of the accident. The respondent also submits that the applicant has not established a credible link between her current complaints and the subject accident, and that it remains the applicant’s onus to prove, on a balance of probabilities, that her injuries fall outside of the MIG.

15The respondent notes that the only clinical notes and records (“CNR”) provided to the respondent that document the applicant’s complaints and treatment related to the subject accident are those of her family physician Dr. Chen dated February 6, 2024.

16I agree with the respondent’s submission that the applicant lacks sufficient medical evidence that she suffers from a psychological impairment in that it is primarily self-reported and is not supported by sufficient medical evidence. The only CNR by her treating physician Dr. Chen was reported 6 months post-accident and only reports wrist pain.

17The applicant’s evidence fails to report a formal diagnosis of a psychological impairment. The reports relied upon mention fatigue, sleep issues and anxiety, and the psychological report suggests that a psychological assessment might be warranted, but it doesn’t tie the applicant’s symptoms to the accident.

18I find on a balance of probabilities that the applicant has not established that she should be removed from the MIG based on a psychological impairment.

The applicant is not removed from the MIG due to chronic pain with a functional impairment

19I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain with a functional impairment as a result of the accident.

20The applicant submits that she continues to suffer from chronic pain as a result of the accident. She submits that her pain is ongoing and is limiting her ability to work and relies on the following:

i. CNR of Dr. Kris Chen, the applicant’s family doctor, dated August 12, 2024. The record states that the applicant has suffered difficulties with using her hands and wrists, and that the limitations impact her ability to work. This record is 7 months post-accident.

ii. Where chronic pain is proven to exist… the MIG does not apply. Ruqia Rahim Ali v. Certas Direct Insurance Company, 2016 ONFSCDRS 98.

iii. Chronic pain is a condition that persist for three to six months, and a formal diagnosis of chronic pain is not required to remove from the MIG. C.G. v. The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT).

iv. The ongoing pain symptoms were also present during the assessments by both Ms. Li dated August 1, 2023 and Dr. Edwin Urovitz, Orthopaedic Surgeon, dated March 27, 2024, where the applicant complained of ongoing pain in their reports.

21The respondent submits that the applicant has not pointed to sufficient medical evidence to support a diagnosis of chronic pain syndrome and has not established a credible link between her current complaints and the subject accident and relies on the following:

i. The only CNR provided to the insurer that document the applicant’s complaints and treatment related to the subject accident are those of Dr. Chen dated February 6, 2024 to August 16, 2024.

ii. An independent medical examination by Dr. E.P. Urovitz, orthopaedic surgeon, dated October 3, 2023 did not reveal any injuries that would remove the applicant from the MIG.

iii. A neurological assessment by Dr. Nagib Yahmad, Neurologist, dated November 9, 2023 concludes that the applicant did not sustain a neurological impairment as a direct result of the subject accident.

iv. The applicant supplied additional documentation to the respondent who obtained addendum reports by both Dr. Urovitz and Dr. Yahmad dated September 11, 2024. These reports state that the additional documentation supplied did not alter the findings of either report.

v. The applicant has not pointed to evidence that would establish a credible link between her current complaints and the subject accident.

22The respondent relies on 17-002689/AABS v Aviva Insurance Canada, 2018 CanLII 2311 at paragraph 6 and L.F. v Aviva Insurance Canada, 2019 CanLII 76987 at paragraph 15. These cases point to the argument that the applicant must provide objective evidence to support the need for treatment plans other than the submission of the treatment plan on its own.

23The applicant points to evidence of ongoing pain by way of CNRs of the family doctor and self-reported ongoing pain symptoms reported by Dr. Urovitz. The applicant relies on case law that suggests that the existence of ongoing pain is the definition of chronic pain, and that where chronic pain is proven to exist, the MIG does not apply.

24The applicant relies on Ruqia Rahim Ali v. Certas Direct Insurance Company, 2016 ONFSCDRS 98 (“Ali v. Certas”) and C.G. v The Guarantee Company of North America, 2020 CanLII 63599. These decisions find the applicant to be diagnosed with chronic pain and remove the applicant from the MIG. However, these decisions do not consider if the applicant is diagnosed with chronic pain with a functional impairment.

25In Ali v. Certas Adjudicator Fadel states:

i. “Dr. Blitzer opined that Mr. Ferozuddin had chronic pain and that chronic pain was a different diagnosis from the original musculoskeletal diagnoses because the latter can be short-term but chronic pain means that there is another process going on that is perpetuating the pain.” It is clear that Adjudicator Fadel finds that the applicant suffers from chronic pain, but he does not address if the chronic pain has caused a functional impairment.

26In contrast, I point to 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 where adjudicator Neilson states at paragraph 27:

i. “I am not bound by FSCO decisions. However, I agree with the reasoning in Ali and Ferozuddin that, when chronic pain causes functional impairment and disability, it takes one out of the MIG. I also agree with the reasoning in Arruda and Western Assurance Company that it is not ongoing pain alone that takes an applicant out of the MIG, but rather chronic pain syndrome. In both cases, the applicants’ pain affected their functional abilities to engage in, for example, their employment, housekeeping or caregiver activities. The point common to both decisions is that ongoing pain alone is insufficient to take one out of the MIG. Rather, that ongoing pain also must be accompanied by some functional impairment.”; and at paragraph 28

ii. “For chronic pain to be more than sequelae from the soft tissues injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae”

27I have not been persuaded that the applicant is diagnosed with chronic pain syndrome as ongoing pain symptoms must be in conjunction with a functional impairment which the applicant has not been able to present evidence to point me to that conclusion.

28I agree with the respondent that the applicant has not pointed to sufficient medical evidence to support a claim of chronic pain with a functional impairment as a result of the accident. The submission of OCF-18s is not sufficient as medical evidence on their own, they need to be supported by documented medical evidence. To support a claim of chronic pain, there needs to be significant medical evidence, and it needs to be linked to the accident in question. Furthermore, the applicant has not pointed to a functional impairment that can be linked to the accident in question.

29As I have found that the applicant remains within the MIG and its $3,500.00 limit, which has been exhausted, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

The respondent is in compliance with s. 38(8) for the denial of the in-home OT assessment.

30I find that the respondent’s denial of the OT assessment is compliant with s. 38(8)

31The applicant submits that the treatment plan for an OT assessment is payable under s. 38(11) of the Schedule as the respondent failed to comply with the requirements under s. 38(8) until after the assessment was incurred. The applicant submits that the insurer failed to satisfy the requirements set out in s. 38(8) and therefore the consequences of s. 38(11) apply.

32Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.

33The applicant asserts that the letter denying the OCF-18 requested further documentation but did not mention whether it was a request made under s. 33 of the Schedule or the consequences of not complying with the request.

34The applicant then submits that the respondent failed to mention the applicant’s injuries or which documentation they relied on to come to their conclusions in the initial denial letter, and hence the consequences of s. 38(11) should apply. Instead, the respondent used boilerplate sentences to deny the treatment plan without describing the applicant’s injuries. The applicant relies on Jamily v Certas Home and Auto Insurance Company, 2022 CanLII 98064 (ON LAT) (“Jamily”) that holds that an Explanation of Benefits (EB) doesn’t meet the requirements of s. 38(8) without at least mentioning the applicant’s injuries and documentation the respondent relied on in making their determination.

35The respondent did not make any submissions or arguments on this matter. However, they sought to have the Assessment of Attendant Care Needs (“Form 1”) be excluded from this hearing and not be considered by the Tribunal. I find that the respondent’s exclusion request would not preclude the consequences of s. 38(11) if the Tribunal found in favour of the applicant because the Form 1 does not influence the EB which is the document under scrutiny.

36I find that the respondent is compliant with s. 38(8) of the Schedule in their denial of the in-home OT assessment. The applicant relies on Jamily, however, I find that Jamily does not support the applicant’s position. Jamily, at paragraph 25 states:

i. …an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. (emphasis added).

37The respondent’s denial as quoted in the applicant’s submissions at paragraph 37 stated that

i. “the respondent had reviewed all the documents relating to your claim together within the MIG outlined in the Insurance Act and we believe your injuries are considered to be predominantly minor.”

38The applicant submits that the respondent then requested CNR from the family doctor but did not mention whether it was a request made under section 33 or the consequences of not complying with the request. The respondent scheduled an IE and the applicant submits that the OCF-18 in question was then properly denied.

39At paragraph 38 of the applicant’s submissions it concludes:

i. “In the case at hand, the Insurer did not mention the Applicant’s injuries or which documentation they relied on to come to their conclusions until April 10, 2024.”

40I find that the respondent provided explanations based on the information that they had, and knowing it was insufficient endeavored to acquire more in order to be in compliance with either approving the treatment plan, or denying it, in compliance with s.38 of the schedule.

41The applicant states that the conclusions did come, but not until April 10, 2024. In this denial, as per the case the applicant relies upon, the respondent identified information about the applicant’s condition and made requests to obtain the information it does not have but requires. I find that the respondent upheld their responsibility with regards to the denial, it was straightforward, and the reader is able to understand what it is that is being requested of them.

Interest

42As there are no overdue benefits, the applicant is not entitled to interest.

Award

43The 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.

44The applicant asserts that the respondent abused the relationship between the applicant and the respondent which should be held in utmost trust. The applicant asserts that:

i. The applicant is vulnerable and has sustained serious impairments as a result of this accident;

ii. The Tribunal needs to set precedents to ensure deterrence to Insurers; and

iii. The Insurer acted in a highhanded manner.

45The respondent submits that the Tribunal has previously held that the applicant has to provide persuasive evidence that the respondent unreasonably withheld or delayed payment of benefits, and that the onus is on the applicant to discharge this burden. The respondent submits that the applicant has failed to provide any evidence warranting a special award.

46Furthermore, the respondent asserts that they met their duty of good faith by appropriately reviewing all documentation provided by the Applicant, communicated regularly with the Applicant, and appropriately considered entitlement to benefits based on the documentation provided.

47Despite the applicant’s failure to provide particulars of her award claim, the basis for her award claim was that the respondent acted unreasonably by keeping her within the MIG. As I have found that the applicant remains within the MIG, I find that the applicant has not proven, on a balance of probabilities, that the respondent acted unreasonably. Therefore, I dismiss the applicant’s claim for a s. 10 award.

ORDER

48I find that:

i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.

ii. The applicant is not entitled to the treatment plans in dispute, nor interest.

iii. The request for an award is denied.