Licence Appeal Tribunal File Number: 23-011164/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:
Xiaoqiao Deng
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Rakesh Sharma, Counsel
For the Respondent:
Kateryna Borodenko, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Xiaoqiao Deng, the applicant, was involved in an automobile accident on July 12, 2022, 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, TD 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. Is the applicant entitled to $1,765.86 for physiotherapy services proposed by Easy Health Care in a treatment plan/OCF-18 (“plan”) dated May 16, 2023?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the treatment plan for physiotherapy services.
4The respondent is not liable to pay an award.
5The applicant is not entitled to interest.
ANALYSIS
6To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant is not entitled to the plan for physiotherapy services
7The applicant has not met her onus to prove on a balance of probabilities that the plan for physiotherapy services is reasonable and necessary.
8The plan was proposed by Hadi Fateh Nemati, physiotherapist. The plan proposes seven sessions each of physical rehabilitation, acupuncture, and massage therapy, and the preparation of the OCF-18. The goals of the plan are pain reduction, increased range of motion, increase in strength, to return to activities of normal living, and to return to pre-accident work activities.
9The applicant takes the position that the proposed treatment is reasonable and necessary because it is necessary to achieve the maximal recovery of her physical injuries.
10On November 29, 2022, the applicant was removed from the Minor Injury Guideline (“MIG”) based on a psychological impairment.
11The applicant submits that a trial by written hearing is limited to the denial reasons arising out of the adjudication of the claim, served upon the applicant by a notice under s. 54 of the Schedule, the applicant’s onus to disprove the reasons in the notice on a balance of probabilities, and for the respondent to defend the denials.
12The applicant further submits that:
i. The applicability of the MIG is a category of benefit that is determined in respect of the applicant’s claim for medical and rehabilitation treatments or assessments (“benefits”) other than those payable under the MIG.
ii. Section 38(1) of the Schedule applies to a claim for benefits other than those payable under the MIG.
iii. The statutory requirement upon the applicant to make a claim for benefits other than those payable under the MIG is to be compliant with s. 38(3).
iv. The completed plan submitted by the applicant in compliance with s. 38(3) is deemed to be reasonable for costs and necessary for rehabilitation as stated in s. 38(3)(c). In this section, the words “proposed costs” are followed by the word “reasonable,” and the word “necessary” is followed by the words “insured person’s treatment and rehabilitation.”
v. Plans submitted under s. 38(3) are deemed to be reasonable and necessary because s. 38(8) states that the insurer shall respond within 10 days of receipt of the plan, the insurer shall give notice of the goods and services it agrees to pay, it does not agree to pay, and the “medical reasons and all of the other reasons” why the insurer considers it not to be reasonable and necessary.
vi. The reading of ss. 38(3) and 38(8) implies by default that the plan submitted in compliance with s. 38(3) is deemed to be reasonable and necessary because the health professional completing the form opines that it is reasonable and necessary, and the first option under s. 38(8) is for the insurer to pay for the goods and services.
vii. Since the insurer is required to provide reasons why the submitted plan is not reasonable and necessary, the plan on its own is deemed to be reasonable and necessary, especially when the first option is to pay for the goods and services.
viii. In order to be a valid denial notice pursuant to s. 54, the notice must comply with the provisions of s. 38(8).
ix. There is no statutory requirement under s. 38 and nothing in the OCF-18 that requires that medical records be attached in support of proposed treatment being necessary for rehabilitation of the applicant.
13The applicant submits that she is entitled to the plan for the following reasons:
i. The plan was completed by a physiotherapist, i.e., a regulated health professional, and submitted in compliance with the criteria in s. 38(3) of the Schedule.
ii. In compliance with s. 38(3)(c)(i)(A), the physiotherapist checked the box stating that the injuries are predominantly not minor injuries as the reason for approval of treatment payable other than under the MIG.
iii. Parts 6, 7, 8, 9, and 12 of the plan were completed by the physiotherapist.
14The applicant further submits that in its initial denial letter dated May 25, 2023, the respondent denied the plan and scheduled an Insurer Examination (“IE”) to determine if the plan was reasonable and necessary. In the respondent’s letter dated August 1, 2023, it denied the plan based on the IE report dated July 24, 2023 of Dr. Yong-Kyong Michael Ko, physiatrist.
15The applicant makes submissions arguing that Dr. Ko’s report is statutorily deficient. The applicant does not direct me to any statute that governs the sufficiency of an IE report.
16I find that the onus is not on the respondent to provide a “sufficient” report justifying a denial. Rather, the onus is on the applicant to demonstrate on a balance of probabilities that a treatment plan is reasonable and necessary. The Ontario Court of Appeal has held that the Schedule obliges the insurer to give the insured the reasons for the refusal. It does not provide that the reasons must be legally correct: see Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) and Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111.
17Further, although I find that s. 38(3) of the Schedule sets out the criteria for the completion of a treatment plan, nothing in this section states that a plan completed in accordance with the criteria in s. 38(3) is “deemed” to be reasonable and necessary.
18It is well settled that the treatment plan on its own is not sufficient evidence in support of treatment. In this case, the applicant does not direct me to any evidence in support of the plan, or to evidence of any of the applicant’s treating health practitioners, other than the author of the plan, recommending the need for the services proposed in the plan.
19In addition, the applicant does not identify how the goals of the treatment would be met to a reasonable degree and how the overall costs of achieving them are reasonable.
20For these reasons, I find that applicant has not met her onus to demonstrate on a balance of probabilities that the plan for physiotherapy services is reasonable and necessary.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
22The 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. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
23For the above reasons, I find:
i. The applicant is not entitled to the treatment plan for physiotherapy services.
ii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
iii. The respondent is not liable to pay an award.
Released: October 20, 2025
Laura Goulet
Adjudicator