Licence Appeal Tribunal File Number: 23-010218/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:
Li Min Tang
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Deedra-Ann Lake, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Li Min Tang, the applicant, was involved in an automobile accident on December 31, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The following was added as a preliminary issue in dispute in a motion order dated October 31, 2024:
i. Is the applicant barred from proceeding to a hearing on substantive issue ii. below as the applicant failed to attend an insurer’s examination under s.44 of the Schedule?
The respondent’s notices of examination were not compliant with the Schedule
3I find that the applicant can proceed to a hearing on substantive issue ii.
4The respondent submits that the applicant failed to attend insurer’s examinations as required under s.44 of the Schedule.
5The respondent points to notices of examination sent on September 22, 2023, November 17, 2023 and January 24, 2024.
6The applicant did not make reply submissions despite being provided an opportunity to do so.
7Section 44(5) of the Schedule requires that a proper notice of examination must include the following:
i. Medical and any other reasons for the examination;
ii. Whether the attendance of the insured person is required;
iii. The name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
iv. If the attendance of the insured person is required at the examination, the day, time and location of the examination.
8Having reviewed the notices of examination submitted by the respondent, I find that none of the three notices contained valid medical or other reasons for the examination. The notices direct the applicant to a letter dated on August 31, 2023 where the medical reasons given are:
Based on the injuries sustained in the subject accident, the amount of time elapsed since the date of the accident and given the significant amount of treatment you have received since this date, we are unable to determine if the requested treatment is reasonable and necessary and essential for your recovery.
9This justification is vague, the applicant is entitled to know which injuries the form the basis of the respondent’s opinion, and how those injuries connect to the treatment proposed. In referencing the treatment previously provided, the respondent, again, does not link the treatment proposed to the treatment already received.
10These reasons are required under s.44(5)(a) of the Schedule. Therefore, I find that the respondent did not give proper notice under s.44 of the Schedule and that the applicant may proceed to a hearing on substantive issue ii.
SUBSTANTIVE ISSUES
11The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from August 7, 2022, to present?
ii. Is the applicant entitled to $3,779.20 for physiotherapy services provided by Easy Health Centre, submitted on August 28,2023 and denied on August 31, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
12The applicant is not entitled to the benefits in dispute.
13This application is dismissed.
ANALYSIS
The applicant does not suffer a substantial inability to perform the tasks of her employment
14I find that the applicant is not entitled to an IRB.
15To receive payment for an 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.
16The applicant submits she worked full time as a restaurant manager prior to the accident and has not returned to work since the accident.
17She further submits that the essential tasks of her employment require prolonged standing for hours at a time, upper body and limb co-ordination as well as concentration and focus as the restaurant hours are long and busy.
18The applicant goes on to submit that her past work experience only qualifies her for restaurant work.
19The respondent submits that the applicant has returned to work, and should not qualify for an income replacement benefit for that reason.
20The respondent points to the report of Dr. Kelly Sun, respirologist who assessed the the applicant on August 3, 2023.
21Dr. Sun notes that the applicant has her own business, and that 50% of the time she works from home and 50% of the time she goes to clients using Uber.
22This report conflicts with the applicant’s submissions. The applicant has stated that she is unable to work and has not been working.
23Dr. Sun’s note regarding the applicant’s employment is corroborated by a note of Dr. Giulia Martone, allergist, who saw the applicant on August 3, 2023. In her assessment, Dr. Martone noted: “Occupation: does not work at home”. Indicating that she works outside the home.
24I have found further inconsistencies between the applicant’s submissions and the evidence presented to the Tribunal.
25The applicant has submitted that she is a restaurant manager and that the essential tasks of her employment require prolonged standing for hours at a time, upper body and limb co-ordination as well as concentration and focus as the restaurant hours are long and busy.
26However, the Employer’s Confirmation Form (“OCF-2”) list the job description as “management, accounting support, marketing, and so on…”
27This conflicts with the applicant’s submissions concerning the duties of her employment. In her submissions, the applicant does not mention the accounting and marketing tasks she preformed. The applicant’s employer makes no mention of tasks that require upper body and limb co-ordination or prolonged standing.
28These inconsistencies lead me to a position where I cannot find, on a balance of probabilities, that the applicant is entitled to a benefit.
29There is evidence that the applicant has returned to work, and without details of that return, I am unable to find the applicant is entitled to the disputed benefit.
30Based on these reasons, I must find the applicant has not met their burden to prove an entitlement to an IRB.
The applicant is not entitled to the disputed treatment plan
31I find that the applicant is not entitled to the disputed treatment plan.
32To receive payment for a treatment and assessment plan under s. 15 and 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.
33The applicant does not make submissions on the goals of this treatment plan, or how the goals would be met to a reasonable degree. The goals of this treatment plan have not been submitted as evidence. The applicant has only submitted page 8 of the treatment plan which details the treatment proposed and the insurance company’s response.
34The respondent submits that the Tribunal has held that treatment plans by themselves do not prove the proposed treatment as reasonable and necessary. The respondent further submits that corroborating contemporaneous medical evidence be shown to support the necessity of proposed treatment and that the applicant has not pointed the tribunal to this corroborating evidence.
35I agree with the position of the respondent. The applicant has not made submissions on the goals of the treatment plan, and how they are intended to be met, nor has the applicant provided those goals as evidence to the Tribunal. Further, the applicant has not directed me to any contemporaneous medical documentation in support of this treatment plan.
36Therefore, I find, on the balance of probabilities, that the plan is neither reasonable or necessary.
Interest
37As the applicant is not entitled to any of the benefits in dispute, there is no basis to order the payment of interest.
Award
38Section 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 in which the person was entitled.
39As no benefits have been improperly withheld or delayed, there is no entitlement to an award under s. 10 of Reg 664.
ORDER
40For the reasons set out above I find the applicant is not entitled to:
i. An Income Replacement Benefit;
ii. The disputed treatment plan;
iii. Interest; or
iv. An award under s.10 of Reg 664.
41This application is dismissed.
Released: November 27, 2025
__________________________
Julian DiBattista
Vice-Chair