Ka Ho Kong v. Pembridge Insurance Company, 2025 CanLII 114356

Kong v. Pembridge Insurance Company, 2025 ONLAT 24-001151/AABS

Citation: Kong v. Pembridge Insurance Company, 2025 ONLAT 24-001151/AABS

Licence Appeal Tribunal File Number: 24-001151/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:

Ka Ho Kong

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel

For the Respondent: Andrew Cottreau, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ka Ho Kong, the applicant, was involved in an automobile accident on December 8, 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, Pembridge 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 $4,217.20 for chiropractic treatment, proposed by UHeal Rehabilitation Centre in a treatment plan dated April 21, 2023?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessment and Treatment Clinic, in a treatment plan submitted January 12, 2023?

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

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

RESULT

3I find that the applicant's accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG.

4I find that the applicant is not entitled to the treatment plans in dispute for a psychological assessment or chiropractic treatment.

5I find that the applicant is not entitled to interest and an award is not payable.

PROCEDURAL ISSUE

Section 54 of the Schedule

6The applicant in his reply submissions refers to s. 54 of the Schedule. He submits that he does not have the onus to disprove the case made out by the respondent that is not based on the denial reasons served upon the applicant under s. 54 of the Schedule.

7Section 54 of the Schedule provides that if an insurer refuses to pay a benefit or reduces the amount of a benefit that a person is receiving, the insurer shall provide the person with a written notice advising the person of his or her right to dispute the refusal or reduction.

8I find that the applicant is attempting to assert that the respondent is not allowed to make new submissions in this hearing, that were not specifically noted in the respondent's denial letters of the benefits in dispute. The applicant has provided no authority to support this interpretation, nor do I find that it is remotely accurate based on a plain reading of the section. There is no indication in s. 54 of the Schedule that the respondent in a hearing before the Tribunal can only make submissions based on its denial letters or that it is not permitted to make new submissions. Rather, s. 54 simply requires an insurer provide a clear and unequivocal denial letter and advise the insured of their right to dispute the refusal. It says nothing about the respondent's right to make submissions at a hearing or that its submissions are confined to those contained in a denial letter.

9I find that the respondent has complied with s. 54 of the Schedule and provided the applicant with clear and unequivocal denials. It further advised the applicant of his right to dispute the refusal within these denials, as required by s. 54. I further find that the respondent is entitled to present its case as it sees fit, including submissions on its position and responses to the applicant's submissions and evidence.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

10The applicant sustained predominantly minor injuries as defined under the Schedule.

11I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

12Section 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) of the Schedule defines a "minor injury" as "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

13An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

14The applicant states that he "will not be making any submissions solely on the applicability of the MIG but will dispute applicability of the MIG with respect to the denied substantive issues". He submits that the statutory requirement upon him is to make a claim for medical and rehabilitation treatments/assessments, other than those payable under the MIG, that is compliant with s. 38(3) of the Schedule, which sets out the requirements of a treatment and assessment. The applicant therefore submits that as the treatment plans submitted comply with s. 38(3), his onus is only to disprove on a balance of probabilities the denial reasons served upon the applicant in the notice under s. 54 of the Schedule, in order to prove entitlement to the denied treatment plans and removal from the MIG. The applicant argues that in order for the denial notices under s. 54 of the Schedule to be valid, the respondent must comply with the provisions of s. 38(8) of the Schedule and provide medical and all other reasons as to why the goods and services are not reasonable and necessary. The applicant then sets out the reasons why he believes that the denial notices do not comply with s. 38(8) of the Schedule. The applicant further submits that there is no statutory requirement under s. 38 of the Schedule to attach any other medical records to the submitted treatment plan in support of the proposed treatment being necessary for rehabilitation of the applicant.

15The respondent submits that the applicant has not discharged his onus of proving that he sustained anything more than minor injuries as a result of the accident. The respondent relies upon clinical notes and records ("CNRs") of Dr. Benny Chan, family doctor, which do not show any visits until April 9, 2024, and do not reference the accident. The respondent relies upon the Tribunal decision in Corpus v. Aviva General Insurance, 2021 CanLII 18909 (ON LAT), where the Tribunal held that an applicant's evidentiary onus is not discharged by relying on a treatment plan itself. It argues that contemporaneous corroborating medical evidence is required to establish entitlement to medical benefits.

16The respondent further submits that the applicant's submissions attempt to poke holes in the respondent's denial letters in respect to the treatment plans in dispute, instead of focusing on meeting his own onus. In response to the applicant's submissions that its denial notices did not comply with s. 38(8) of the Schedule, it submits that its denial notices meet the requirements of the Schedule, as it provided specific details forming the basis for its denials.

17Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 days of receiving it by identifying the goods and services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide the medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

18If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with an adequate notice of the reasons for its denial is prohibited by s. 38(11)(1) from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)(2) provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred goods, services, assessments and examinations described in the treatment and assessment plan that related to the period starting on the 11th business day after the day the insurer received the applicant and ending on the day the insurer gives notice as described in s. 38(8).

19I find that the applicant has not met his onus of proving that his accident-related injuries warrant removal from the MIG. I find that the applicant's position that his only requirement is to prove that the respondent's denial notices are not compliant with s. 38(8) of the Schedule is incorrect. This is not the test. It is well settled that the applicant is required to submit evidence and make submissions to support that his injuries warrant removal from the MIG (See: Scarlett v. Belair Insurance, 2015 ONSC 3635 (Div. Ct)). An analysis of s. 38(8) of the Schedule is only conducted with respect to whether the treatment plan in dispute was properly denied. Pursuant to s. 38(11)(1), if proper notice is not provided, the insurer cannot take the position that the applicant has an impairment to which the MIG applies to deny the treatment plan. An improper denial of a treatment plan does not mean that an applicant is then automatically removed from the MIG for the duration of their claim.

20I find that the applicant has not made any submissions regarding his removal from the MIG based on chronic pain or a psychological condition. Rather, he has simply attached the two treatment plans in dispute and set out the reasons why he believes that the respondent's denial notices were not compliant with s. 38(8) of the Schedule. The Tribunal has consistently found that a treatment plan itself is not sufficient medical evidence to prove entitlement, as contemporaneous corroborating medical evidence or submissions are required to support entitlement to medical benefits and removal from the MIG. I find that other than the two treatment plans submitted by the applicant, no further medical evidence has been submitted or relied upon by the applicant.

21Upon review of the treatment plan recommending a psychological assessment, dated January 12, 2023, it lists the applicant's injuries as specific (isolated) phobias, headache, nightmares, nonorganic sleep disorders, irritability and anger. In the psychological pre-screen noted in the treatment plan, the comments are based solely on the self-reporting of the applicant without any contemporaneous evidence to support his complaints. I find that no medical evidence was reviewed, no psychometric objective testing was performed and there is no diagnosis provided. This is insufficient evidence to support that the applicant suffers a psychological condition that warrants removal from the MIG.

22With respect to the applicant's physical complaints, the only medical evidence provided in support, is the treatment plan recommending chiropractic therapy, dated February 9, 2023. The treatment plan lists multiple injuries suffered by the applicant. Under Part 8 - Activity Limitations, it states:

Patient continues to present with difficulty with sustained postures, standing, walking, sitting, lifting, pushing/pulling, bending and overhead reaching, which given the patient's cervical, thoracic, lumbar and shoulder impairment, the presence of radicular, neurological and psychological symptomatology and their decrease in functional capacity results in difficulty performing their full work duties and difficulty performing their housekeeping responsibilities

23I find that other than this treatment plan, there is no further documentation provided to support or corroborate the applicant's complaints. The CNRs of the clinic have not been provided to document what if any ongoing complaints were suffered by the applicant and there is no evidence provided as to the applicant's functional limitations. I find that there are no submissions made by the applicant as to his difficulties with performing his full work duties or his housekeeping responsibilities. In addition, despite the respondent requesting a Disability Certificate to support any difficulties the applicant experienced post-accident with his work duties, this form was never submitted. I find that it is incumbent on the applicant to provide evidence of the ongoing or recurrent pain that he experiences as a result of the accident. The applicant's reliance on this treatment plan is not sufficient evidence that he has ongoing pain or that he has a corresponding functional impairment as a result of the accident. Therefore, I do not find that the applicant suffers from a chronic pain condition that would warrant removal from the MIG.

24For the reasons outlined above, I find on a balance of probabilities, that the applicant does not suffer from a psychological condition or a chronic pain condition as a result of the accident and therefore he is not removed from the MIG on this basis.

Entitlement to the Treatment Plans in Dispute

25Having found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

26I will therefore address the applicant's submissions that the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(11) of the Schedule.

Denial of the Treatment Plan for a psychological assessment dated January 12, 2023

27The applicant argues that the treatment plan dated January 12, 2023, for a psychological assessment, was improperly denied by the respondent. The respondent advised the applicant by Explanation of Benefits ("EOB") dated January 19, 2023, that the treatment plan was denied. The EOB advised that the respondent did not have any compelling medical evidence to support a finding that the applicant suffered from a psychological impairment that would prevent him from achieving maximum medical recovery within the MIG. It further advised, that as there was $400.00 available under the pre-approved $2,200.00 to cover any psychological social impairment, he was required to submit a Treatment Confirmation Form ("OCF-23") pursuant to s. 38(5) of the Schedule.

28Section 38(5) of the Schedule provides that an insurer may refuse to accept a treatment and assessment plan if the plan describes goods and services to be received or an assessment or examination to be conducted in respect of any period during which the insured person is entitled to receive goods and services under the MIG in respect of the impairment. Pursuant to s. 38(6), an insurer's refusal to accept a treatment and assessment plan under subsection (5) is final and is not subject to review.

29The applicant submits that he provided medical evidence in respect to the reasons for the psychological assessment and the respondent failed to review the information provided in the pre-screening report and in part 4 to 12 of the treatment plan in dispute. The applicant further submits that the respondent's response is boilerplate, and it did not provide a rationale to which the applicant could respond. He argues that the respondent's reasons are not meaningful in order to permit him to decide whether or not to challenge the respondent's determination.

30The respondent relies upon the Tribunal decision in Liao v. Pembridge Insurance Company, 2025 CanLII 522 (ON LAT), where it was concluded that a denial letter indicating that the insurer had not received any compelling medical evidence of a psychological impairment was a valid denial. The respondent also relies upon the Tribunal decision in J.P. v. Allstate Insurance Company, 2020 CanLII 14422 (ON LAT), which confirms that s. 38(5) of the Schedule is applicable where funds are still available under the MIG and an OCF-23 was required. The Tribunal concluded that s. 38(6) of the Schedule confirms that a denial based on s. 38(5) of the Schedule is final and not renewable by this Tribunal.

31I find that the January 19, 2023 EOB was a valid denial. It indicates that the respondent had not received any compelling medical evidence of a psychological impairment. It further denied the treatment plan based on s. 38(5) of the Schedule and, as a result, pursuant to s. 38(6), the denial is not subject to review by the Tribunal. I find that the respondent believed the applicant's injuries were subject to the MIG based on the medical evidence. It noted that the MIG limits had not been exhausted and he had not submitted an OCF-23 pursuant to s. 38(5). Accordingly, I find that the respondent provided a proper denial.

32I find that the applicant was in the MIG when he submitted the disputed treatment plan. When subject to the MIG, insureds are required to submit treatment through OCF-23s – and not OCF-18s, in order to access the initial block of treatment funding. This legislative prohibition is designed to ensure that insureds exhaust the funding in the MIG or are removed from the MIG before receiving treatment beyond the $3,500.00 limit. At the time the applicant submitted the treatment plan in dispute, he was in the MIG and had not incurred any of the MIG limits. He was therefore required to first submit an OCF-23.

33I further find that the applicant has not provided submissions as to why the respondent's refusal under s. 38(5) should be subject to review by this Tribunal under s. 38(6). Instead, his submissions focused on the applicability of s. 38(8) and s. 38(11) and why he believes the respondent's notices were deficient. I find that none of his submissions overcome the fact that he failed to provide sufficient medical documentation and failed to submit treatment via an OCF-23. Therefore, I find no reason to interfere with the respondent's denial of the treatment plan under s. 38(5) and I find that it is not subject to review by this Tribunal under s. 38(6) of the Schedule.

34I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent's stated reasons or its assessment of the medical documentation, it does not render the notice invalid.

35For the reasons outlined above, I find on a balance of probabilities, that the applicant has not met his burden of proving that the treatment plan for a psychological assessment is payable under s. 38(11) of the Schedule.

Denial of the treatment plan dated April 21, 2023 for chiropractic therapy

36The applicant argues that the treatment plan dated April 21, 2023, for chiropractic therapy, was improperly denied by the respondent. The respondent advised the applicant by EOB dated May 24, 2023, that the treatment plan was denied. The EOB advised that the respondent denied the treatment plan in dispute on the basis that the applicant sustained a minor injury as a result of the accident. A definition of a minor injury was provided. It further states that to date it has not been provided with any compelling medical evidence documented by the applicant's family/attending physician to support that his pre-existing and or post-accident medical condition would prevent him from achieving maximum medical recovery with the MIG. It requests that if the applicant or his health practitioner has any additional medical evidence that has not previously been submitted, to forward it for consideration.

37The applicant submits that the respondent made no reference to the medical information provided in the treatment plan. He claims that he is not aware of the basis on which the respondent arrived at the conclusion that he sustained a minor injury. The applicant points to the fact that Dr. Tavares under Part 4 of the treatment plan, checked off the box that his injuries are not minor. The applicant further submits that the respondent's response is boilerplate, and it ignored the information under Part 4 and 7 of the treatment plan which states he has no-pre-existing injury. Therefore, he was not required to submit pre-accident medical documentation and the reason for the denial is incorrect.

38The respondent submits that its denial complied with s. 38(8) of the Schedule. It further submits that there is no objective medical evidence to support that the proposed treatment is reasonable and necessary.

39I find that the May 24, 2023 EOB was a valid denial. I do not agree that the notice was a boilerplate denial. I find that the EOB identified the treatment plan in dispute and specifies that it is not payable because the applicant's injuries are minor. The denial notes that the respondent has not received compelling evidence to indicate that the applicant's injuries warrant removal from the MIG and further invites the applicant to provide medical evidence in support that his injuries are not MIG.

40I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent's stated reasons, it does not render the notice invalid.

41For the reasons outlined above, I find on a balance of probabilities, that the applicant has not met his burden of proving that this treatment plan for chiropractic treatment is payable under s. 38(11) of the Schedule.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, 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 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

44For the reasons outlined above, I find,

i. The applicant's accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute for a psychological assessment or chiropractic treatment;

iii. No interest or an award is payable; and

iv. The application is dismissed.