Thanh Luong v. Certas Direct Insurance Company, 2026 CanLII 6229

Citation: Luong v. Certas Direct Insurance Company, 2026 ONLAT 24-003996/AABS

Licence Appeal Tribunal File Number: 24-003996/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:

Thanh Luong

Applicant

And

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Matthew Frontini

APPEARANCES:

For the Applicant: Anthony Matiya, Counsel

For the Respondent: Jessica Telfer, Counsel

HEARD: By way of written submissions

OVERVIEW

1Thanh Luong, the applicant, was involved in an automobile accident on July 19, 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, Certas Direct 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 the assessments proposed by Princeton Hills Medical Assessments, as follows:

(a) $2,200.00 for a psychological assessment, in a treatment plan submitted January 20, 2023;

(b) $1,560.00 for a functional abilities evaluation assessment, in a treatment plan submitted January 21, 2023;

(c) $2,260.00 for a chronic pain assessment, in a treatment plan submitted January 23, 2023;

(d) $2,520.00 for a physiatry assessment, in a treatment plan submitted January 30, 2023;

(e) $1,660.00 for a worksite assessment, in a treatment plan submitted January 30, 2023;

(f) $8,988.39 for chronic pain treatments, in a treatment plan submitted May 3, 2023;

(g) $5,630.00 for PRP injections, in a treatment plan submitted May 3, 2023; and

(h) $5,066.29 for psychological services, in a treatment plan submitted May 26, 2023?

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

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;

ii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary;

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule and;

iv. The application is dismissed.

ANALYSIS

The applicant is not removed from the MIG

4The applicant is not removed from the MIG. She has not established on a balance of probabilities that she has suffered more than a minor injury because of the accident.

5Section 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.”

6An 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 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.

7The applicant claims to suffer from psychological injuries and a chronic pain disorder, which, she submits, are injuries that are not “minor”. As a result, the applicant claims entitlement to medical benefits beyond the MIG funding limit.

The applicant has not established that she suffers chronic pain warranting removal from the MIG

8I find that the applicant has not established on a balance of probabilities that she suffers from chronic pain with a functional impairment warranting removal from the MIG.

9The applicant relies on the diagnosis of chronic pain disorder made by Dr. Wilderman, physician, in his independent medical evaluation report, dated April 26, 2023. Dr. Wilderman’s assessment comprised a clinical interview, review of medical documentation and psychometric testing. During the assessment, the applicant reported that her accident-related injuries cause substantial and continuous impairment of her ability to perform her employment functions and housekeeping/home maintenance tasks.

10Dr. Wilderman opines that the applicant meets the definition of chronic pain syndrome based on applying the American Medical Association Guides to Permanent Impairment American Medical Association, 6th Edition, 2008 (“AMA Guides”) because she meets four of the six criteria set out in the AMA Guides, specifically: (1) excessive dependence on health care providers, spouse, or family, (2) secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain, (3) withdrawal from social milieu, including work, recreation, or other social contacts, and (4) failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

11The respondent submits that the evidence does not support that the applicant has experienced continuous pain resulting in the functional limitations. The respondent notes there were only five accident-related visits by the applicant to her family doctor in 2021, and none at all in 2022 or 2023. The respondent also notes that there are no records of accident-related pain or functional impairment from health care providers after December 2021 until her assessment in March of 2023.

12The applicant included the clinical notes and records of her family doctor, Dr. Mark Lai, spanning September 2018 to December 14, 2022. The applicant saw Dr. Lai two days after the accident and there was regular follow-up on the applicant’s pain and recovery from the accident. The applicant’s last accident-related visit to Dr. Lai on August 27, 2021, noted that she had gone for massage and physiography, still had pain, but was getting better. The applicant did not make any reports of accident-related pain or functional impairment during appointments with Dr. Lai in November and December 2021 as well during the entire year of 2022. A copy of the applicant’s OHIP summary indicates that she did not see Dr. Lai at all in 2023.

13The applicant also included the clinical notes and records of Brooklin Rehabilitation Sports Injury, spanning the period of August 4, 2021, to December 13, 2021. During this period, the applicant undertook various rehabilitative treatments including traction, massage, passive stretching and physiotherapy. At intake on August 4, 2021, the applicant reported back and neck pain and that she required assistance from her son with household chores. According to the clinical notes and records, the applicant reported improvements in her pain soon after her treatment began. By early September, the applicant reported that her back pain was resolved and that her neck was still sore but improving. Throughout October the applicant continued to report improvements to her neck pain and by November 10, 2021, reported going to back to work and, while reporting tiredness, did not report pain. The last entry on December 15, 2021, noted that the applicant was working full-time, feeling better but was reporting soreness in her neck at the end of her shift.

14Based on the totality of the evidence before me, I place very little weight on Dr. Wilderman’s conclusions, which are all based on the applicant’s reporting of pain, reliance on others, and functional limitations during her assessment on March 30, 2023. The applicant’s reporting during her assessment is not corroborated by other contemporaneous evidence. Rather, the preponderance of medical evidence suggests that her accident-related impairments had mostly resolved by December 2021, approximately five months after the accident.

15I find that the applicant has not established on balance of probabilities that she suffers chronic pain warranting removal from the MIG.

The applicant has not established that she suffers a psychological impairment warranting removal from the MIG

16I find that the applicant has not established on a balance of probabilities that she suffers from a psychological impairment as a result of the accident warranting removal from the MIG.

17The applicant relies on the diagnosis of Adjustment-like disorder by Dr. Belyakova, psychologist, in a psychological assessment report dated May 15, 2023. Dr. Belyakova’s teleconference assessment comprised a clinical interview, the administration eight psychometric tests and a feedback interview. The applicant reported that she had discontinued social activities due to mood difficulties and driving anxieties, as well as significant sleep and cognitive difficulties.

18The respondent argues that the applicant has not discharged her evidentiary burden to establish that she suffers a psychological injury. The respondent notes that the Dr. Belyakova’s diagnosis is not corroborated by any contemporaneous evidence. For example, there is no record of any psychological complaints made by the applicant to her family doctor. Moreover, the clinical notes and records of the applicant’s psychotherapist do not mention any of the psychological impairments noted in Dr. Belyakova’s report or describe any functional impairment experienced by the applicant as a result of psychological impairment as result of the accident.

19I agree with the respondent. In the absence of any corroborating evidence, I place little weight on Dr. Belyakova’s diagnosis of Adjustment-like as an accident-related psychological injury warranting removal from the MIG. The applicant has not identified sufficient evidence of any accident-related psychological complaints or functional impairments aside from Dr. Belyakova’s opinion, rendered over two years after the accident.

20Based on the evidence and submissions before me, I find that the applicant has not established on a balance of probabilities that she suffers a psychological injury as a result of the accident warranting removal from the MIG.

21As the applicant is in the MIG, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary.

Interest

22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to the disputed treatment plans, no payments are overdue, and interest does not apply.

ORDER

23I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;

ii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary;

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and

24The application is dismissed.