Licence Appeal Tribunal File Number: 23-012380/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:
Moon Kau Wong
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
VICE-CHAIR:
Kevin Kovalchuk
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Rebecca Pepper, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Moon Kau Wong, the applicant, was involved in an automobile accident on December 22, 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 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:
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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from August 3, 2022, to date and ongoing.
iii. Is the applicant entitled to $245.00 for physiotherapy services, proposed by Total Recovery Rehab Center in a treatment plan/OCF-18 dated February 26, 2022.
iv. Is the applicant entitled to $3,431.48 for physiotherapy services proposed by Total Recovery Rehab Center in a treatment plan/OCF-18 dated April 9, 2022?
v. Is the applicant entitled to $114.97 for medication, submitted on a claim form/OCF-6 dated June 27, 2022?
vi. Is the applicant entitled to $2,200.00 for the cost of examinations proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 dated March 15, 2022?
vii. Is the respondent liable to pay an award under s.10 of Reg.664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to treatment within the monetary limits of the MIG.
4The applicant is not entitled to an IRB in the amount of $400.00 per week from August 3, 2022, and ongoing.
5The applicant is entitled to the $200.00 deducted from the treatment plan proposed by Total Recovery Rehab center dated February 26, 2022, plus interest pursuant to s. 51 of the Schedule.
6The remaining treatment plans in dispute are not payable.
7The applicant is not entitled to an award pursuant to section 10 of Regulation 664.
ANALYSIS
Applicability of the Minor Injury Guideline
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.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 does not have a psychological injury that would remove him from the MIG.
10I find that the applicant has not persuaded me on a balance of probabilities that he sustained psychological injuries that warrant his removal from the MIG.
11The applicant relies on a s. 25 Psychological Consultation Report of Dr. McDowall, Psychologist, dated January 14, 2022, in support of his assertion that he should be removed from the MIG due to a psychological condition.
12The applicant advised Dr. McDowell that he was suffering from physical, psychological, behavioral and cognitive difficulties. At the time of the interview, he reported that he continued to experience constant pain in his shoulders and intermittent pain in his lower back, which had significantly affected his daily functioning and quality of life.
13Dr. McDowell opined that given the acute nature of the applicant’s ongoing pain and psychological impairment as a direct result of the motor vehicle accident, the applicant should not fall under the MIG.
14The respondent submits that compelling evidence is required for the MIG not to apply to predominantly minor injuries. The respondent further submits that Dr. McDowell did not conduct any tests for anxiety, depression or validity.
15The respondent submits that the applicant has not provided evidence to establish on a balance of probabilities that he sustained a diagnosable psychological impairment.
16In my view, the Psychological Consultation Report of Dr. McDowell is not sufficient evidence on its own in support of the applicant’s submission that his psychological injuries remove him from the MIG. The weakness of the Psychological Consultation is that it is based solely on the applicant’s self reporting. Dr. McDowell does not conduct any psychological testing before reaching her conclusions. I therefore place very little weight on Dr. McDowell’s report.
17In addition, the applicant has not directed me to any corroborating evidence that he sustained a psychological impairment because of the accident.
18I have reviewed the Clinical Notes and Records (“CNRs”) of the applicant’s family doctor, Dr. Mah for the period December 22, 2020, to April 14, 2024.There is an entry for January 9, 2022, noting that the applicant had an MVA of December 22,2021 and was having difficulty sleeping and concentrating at work. The assessment noted “msk strain, psychological effects”.
19The next time the applicant discussed any psychological complaints with Dr. Mah was on April 14, 2024, when he reported to Dr. Mah that he has had issues with sleep since the accident, is nervous when driving and complained of problems with concentration. Dr. Mah’ s assessment lists; insomnia, MVA, MSK and NIDDM (non-insulin dependent diabetes mellitus).
20Throughout the time period covered by the CNRs the applicant sees Dr. Mah almost monthly to check on his diabetes and liver function. During those visits he does not complain of psychological issues.
21Because I have placed very little weight on the report of Dr. McDowell and because I was not directed to any corroborating evidence that the applicant had sustained a psychological injury, I find that the applicant has not persuaded me on a balance of probabilities that he suffers form a psychological impairment and as such Is not removed from the MIG on the basis of a psychological impairment.
Income Replacement Benefit (IRB)
22To receive payment for a pre-104-week - IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and as a result of and within 104 weeks after the accident suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
23To receive payment for a post -104-week -IRB under s. 6 of the Schedule the applicant must demonstrate on a balance of probabilities, that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education training or experience.
The applicant is not entitled to IRBs in the amount of $400.00 per week from August 3, 2023, to date and ongoing.
24The applicant submits that sections, 36 and 37 of the Schedule deal with initial entitlement to IRB and determination of continued entitlement to IRB. The applicant further submits that both sections provide for a completed OCF-3 as a criterion for eligibility to IRB. The applicant argues that in both sections of the Schedule there is “no reference to compelling medical evidence as criteria for eligibility to IRB nor, is there any reference to family doctor notes to show that the applicant has met the substantial inability test or complete inability test to be eligible for IRB”.
25The applicant has made no further submissions as to why he is entitled to IRBs.
26The respondent relies on the case of 17-00846 v. Economical Mutual Insurance Company, 2017 CanLII 85769 (ON LAT) where the Adjudicator found that where there was no persuasive evidence such as medical reports to support the applicant’s entitlement to IRB’s the applicant did not meet her evidentiary onus to support an entitlement to IRBs.
27The respondent submits that there are no medical documents advising that the applicant cannot work due to the accident from August 2023 onward. The respondent also submits that by August 2023 the applicant had reached the age of 65 and that the records of Dr. Mah show that the applicant is fully retired.
28The respondent submits that the applicant has not proven that he stopped working in August 2023 as a result of the accident.
29Although not bound by 17-00846 I find it persuasive for the proposition that an applicant must submit medical reports to support their entitlement to IRBs.
30In this case I could find no medical reports to support the applicant’s entitlement to IRBs.
31In addition, the applicant has not provided any evidence as to the essential tasks of his employment, which tasks he is unable to perform and to what extent he is unable to perform then.
32Furthermore, with respect to entitlement to post 104-week IRBs under s. 6 of the Schedule the applicant has not demonstrated on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education training or experience.
33I find that the applicant has not met his onus of showing on a balance of probabilities that he is entitled to IRBs in the amount of $400.00 per week from August 23, 2023, to date and ongoing.
34As I have found the applicant to remain within the MIG I find that I am not required to determine whether the treatment plans in dispute are reasonable and necessary.
35However, the applicant argues that denial letters dated March 11, 2022, March 29, 2022, and April 26, 2022, were improper. I will now turn to those arguments.
Denial letter dated March 11, 2022.
36The applicant argues that the denial letter dated March 11, 2022, denying $245.00 for physiotherapy services, proposed by Total Recovery Rehab Center in a treatment plan dated February 26, 2022, was improper because the respondent incorrectly deducted an amount of $200.00 that the respondent paid for a Disability Certificate (OCF-3) dated December 29, 2021, from the applicant’s MIG limits of $3,500.00 for medical and rehabilitation benefits. As a result, the respondent only approved $1,055.00 with respect to a treatment plan from Total Recovery dated February 26,2022, in the amount of $1,300.
37In a letter dated March 11, 2022, the respondent stated the reasons for partial approval of the treatment plan was because the MIG limits of $3,500 were exhausted.
38The applicant submits an Account Summary from Total Recovery Rehab which shows that on December 30, 2021, the respondent paid $200.00 which was deducted form the applicant’s IRB limits.
39The applicant submits that s. 25(1) of the Schedule requires the insurer to pay the fee of a Disability Certificate required under s. 36 (income replacement benefits). The Disability Certificate submitted by the applicant dated December 24, 2021, noted that the applicant was substantially unable to perform the essential tasks of his employment. It was followed by an Election of Income Replacement, Non-Earner or Caregiver Benefit (OCF-10) dated January 19,2022.
40The respondent has made no submissions with respect to this issue except to argue that the disputed treatment plans were properly denied.
41I find that s. 25(1) of the Schedule requires the insurer to pay the fee of a Disability Certificate. S. 36(2) of the Schedule states that “an applicant for a specified benefit (income replacement benefit) shall submit a completed disability certificate with his or her application”. I therefore find that the amount of $200.00 should not have been deducted by the respondent from the Treatment Plan from Total Recovery dated February 26, 2022, in the amount of $1,300.00 as the MIG limits were not exhausted at that time.
Denial letter of March 29, 2022.
42The applicant submits that the denial letter of March 29, 2022, denying a treatment plan from Somatic Assessments and Treatment Clinic dated March 15, 2022, did not comply with s. 38(8) of the Schedule.
43Section 38(8) requires an insurer to inform an insured person within 10 business days after it receives a 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 an impairment to which the MIG applies.
44The denial letter of March 29, 2022, was in respect of a treatment plan submitted by Dr. McDowall a psychologist seeking funding for a psychology Assessment and Report. It was accompanied by a pre-screening Report.
45The respondent submits that the denial was based on the application of the MIG and that the monetary limit had been reached.
46The denial letter dated March 29, 2022, reads as follows: “There is insufficient medical information to indicate you sustained a psychological impairment as a direct result of the motor vehicle accident. If you have any supporting medical information to warrant psychological treatment at this time, please submit for my review and reconsideration”.
47I find that the denial letter meets the requirements outlined in section 38 because it notes that there is insufficient medical information from the applicant to make a determination of psychological impairment and requests further supporting documentation for review and reconsideration.
Denial letter dated April 26, 2022.
48The applicant submits that the denial letter did not comply with section 38(8) of the Schedule.
49The denial letter of April 26, 2022, was in respect of a treatment plan dated April 9, 2022, from Total Recovery Rehab Centre for physiotherapy services in the amount of $3,431,48.
50The treatment plan indicated among other things that “due to an extensive past medical history this patient should no longer be under the MIG”
51The respondent submits that the treatment plan was properly denied because the applicant’s injuries fell with the MIG.
52The denial letter dated April 26, 2022, reads in part “I reviewed your list of injuries and see no pre-existing conditions described”. It goes on to state that the applicant’s injuries fall within the MIG and that there is insufficient medical information to indicate that the applicant’s injuries cannot be treated within the minor injury limits. The letter asks for additional medical information about the applicant’s injuries that may “change the injury category”.
53I find that the denial meets the requirements outlined in section 38 because it notes that there is insufficient information from the applicant to make a determination that he should be removed from the MIG and requests further additional information to allow the respondent to assess the request for physiotherapy services.
Interest
54The applicant is entitled to interest related to the balance owing on a treatment plan submitted by Total Recovery Rehab center dated February 26, 2022, pursuant to s. 51 of the Schedule.
The applicant is not entitled to an award pursuant to Regulation 664.
55Section 10 of Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled.
56It is well-settled that in order for an award to be made, the respondent’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate and the evidentiary onus is on the applicant to demonstrate this.
57The applicant submits that he is entitled to an award as the respondent’s “denials are [statutorily] deficient, arbitrary, and extraneous to the provisions of the Schedule and therefore, resulted in unreasonably denying the benefit”.
58The respondent submits that simply taking a different view of the claim from that of the applicant does not automatically give rise to an award.
59I find that the applicant has not met his onus to demonstrate on a balance of probabilities, that the respondent acted in an excessive, imprudent, stubborn, inflexible, unyielding or immoderate way and therefore the applicant is not entitled to an award.
ORDER
60As a result of the above and on a balance of probabilities I find that:
i. The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to treatment within the monetary limits of the MIG.
ii. The applicant is not entitled to an IRB in the amount of $400.00 per week from August 3, 2022, and ongoing.
iii. The applicant is entitled to the $200.00 deducted from the treatment plan proposed by Total Recovery Rehab Center dated February 26, 2022, plus interest pursuant to s. 51 of the Schedule.
iv. The remaining treatment plans are not payable.
v. The applicant is not entitled to an award pursuant to section 10 of Regulation 664.
Released: October 7, 2025
__________________________
Kevin Kovalchuk
Vice-Chair