Citation: Lai v. Definity Insurance Company, 2026 ONLAT 24-014281/AABS

Licence Appeal Tribunal File Number: 24-014281/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:

Sai Cheong Lai

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Moninder Khattra, Counsel

For the Respondent:

Sarah Kaal, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Sai Cheong Lai, the applicant, was involved in an automobile accident on May 31, 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, Definity 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 $1,495.05 for Physiotherapy Services, proposed by North Toronto Rehabilitation and Physiotherapy Clinic in a treatment plan/OCF-18 (“plan”) dated September 19, 2023?

iii. Is the applicant entitled to $1,382.24 for Physiotherapy Services, proposed by North Toronto Rehabilitation and Physiotherapy Clinic in a plan dated October 19, 2023?

iv. Is the applicant entitled to $1,219.55 for Physiotherapy Services, proposed by North Toronto Rehabilitation and Physiotherapy Clinic in a plan dated December 19, 2023?

v. Is the applicant entitled to $3,782.58 for Physiotherapy Services, proposed by North Toronto Rehabilitation and Physiotherapy Clinic in a plan dated June 21, 2023?

vi. Is the applicant entitled to $2,918.24 for Psychological Services, proposed by Align Physio and Wellness Clinic in a plan dated August 1, 2024?

vii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Align Physio and Wellness Clinic in a plan dated July 21, 2023?

viii. 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.

4Since the applicant is subject to the MIG, an analysis of whether the treatment plans in dispute are reasonable and necessary is not warranted.

5The applicant is not entitled to interest.

ANALYSIS

MIG

6I find that the applicant’s injuries are predominantly minor.

7Section 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.”

8An 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.

Pre-existing condition or injury

9The applicant’s submissions refer to a self-reported meniscus tear more than 10 years prior to the accident. Even if I accept that this was a documented pre-existing injury or condition, other than a treatment plan noting “full recovery is expected to be longer than a normal individual”, the applicant has not led compelling medical evidence stating that a pre-existing condition precludes recovery within the MIG. The Tribunal has held treatment plans on their own are not sufficient to establish this and need to be supported.

10The respondent argues that the applicant attended a physician assessment with Dr. Ahmed Belfon on May 15, 2024, noting that the applicant continued working after taking three days off. He further reported that his neck and left knee discomfort had all “resolved within months of the accident and has not returned… he has been pain free since then”. Further, since his neck and left knee discomfort completely resolved, “he was not sure why he was here today to be examined”. It was concluded that the applicant’s injuries are in the MIG as he may have sustained uncomplicated sprain/strain to the cervical spine and left trapezius musculature as well as contusion to the left knee. Any previous accident-related pain or symptomology had completely resolved. There was no indication for any further treatment, as he achieved maximum medical recovery.

11Based on the above, I find that the applicant has not established he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG.

Psychological condition

12The applicant argues that removal from the MIG is warranted due to his psychological sequalae, established by a s. 25 psychological assessment report dated May 23, 2024. The report states that both the assessment and the report were completed by Mursal Srosh, Ph.D., R.P., registered psychotherapist. Mursal Srosh was supervised by Dr. Knolly Hill, Ph.D., C. Psych. The applicant was diagnosed with Major Depressive Disorder, Adjustment Disorder with Mixed Anxiety and Depressed Mood, Specific Phobia: Situational: Driver/Passenger/Pedestrian and indicates that the applicant should be removed from the MIG.

13The respondent argues that the applicant has not established removal from the MIG is warranted. Dr. Hadi Bahiraei’s psychological assessment report dated October 28, 2024 concludes that there were no psychological injuries sustained as a direct result of the motor vehicle accident. From a psychological perspective, Dr. Bahiraei concluded that the applicant may have experienced minor injury symptoms, which would be considered within the scope of a minor injury under the Schedule. On this point I note that the MIG incorporates intervention for psycho-social issues such as but not limited to distress, difficulties coping with the effects of the minor injury, and driving problems or stress. It states that a minor injury includes clinically associated sequelae.

14The respondent argues that the OCF-3 disability certificate only references anxiety and nervousness, noted by Dr. Ian Kai, chiropractor. There is no indication that Dr. Kai is not merely reciting the self-report of the applicant or that this is a diagnosis. The applicant did not establish that Dr. Kai, in the scope of a chiropractor, can diagnose a psychological condition. Beyond this, the respondent argues, there are no records of any ongoing substantive and residual post-traumatic symptomology or clinically significant psychological distress in order to justify removal, as considered in N.K. v Wawanesa Mutual Insurance Company, 2020 CanLII 27381 (ON LAT), at para 13. My review of the s. 25 report indicates that there was no document review completed, or that no document review is indicated in the report.

15I find that the s. 25 report conducted a year post-accident, based on self-reporting, and with no corroborating contemporaneous medical evidence to support the conclusions, does not establish removal from the MIG.

16For the reasons above, on a balance of probabilities, I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

17Since the applicant is subject to the MIG, an analysis of whether the treatment plans in dispute are reasonable and necessary is not warranted.

Interest

18The applicant is not entitled to interest because there are no overdue benefits pursuant to s. 51 of the Schedule.

ORDER

19For the reasons above, I make the following orders:

i. The applicant’s injuries predominantly minor as defined in s. 3 of the Schedule.

ii. Since the applicant is subject to the MIG, an analysis of whether the treatment plans in dispute are reasonable and necessary is not warranted.

iii. The applicant is not entitled to interest.