Citation: Chen v. Pembridge Insurance, 2025 ONLAT 24-000284/AABS

Licence Appeal Tribunal File Number: 24-000284/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:

Ming Qin Chen

Applicant

and

Pembridge Insurance

Respondent

DECISION

ADJUDICATOR:

Roderick Walker

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

Derek Yap, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Ming Qin Chen, the applicant, was involved in an automobile accident on September 16, 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 Pembridge Insurance, the respondent, 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 limit (“MIG”)?

ii. Is the applicant entitled to $4,069.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 dated January 3, 2023?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments in a treatment plan/OCF-18 dated October 7, 2022?

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

3The applicant’s injuries are minor as defined by s. 3 of the Schedule and as such the applicant remains in the MIG.

4None of the disputed treatment plans are payable.

5The respondent is not liable to pay an award.

6No interest is payable under s. 51 of the Schedule.

ANALYSIS

MIG

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are 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.”

8An 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 injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within 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.

9The applicant in this case submits that she should be removed from the MIG on the basis of a chronic injury impairment and psychological condition.

The applicant does not suffer from a chronic pain impairment.

10I find that applicant does not suffer from an accident-related chronic pain impairment that would remove her from the MIG.

11The applicant relies on a Disability Certificate (OCF-3), dated September 24, 2022, completed by Dr. Palantzas, D.C. of Total Recovery Centre. Dr. Palantzas noted that the applicant appeared to have difficulty with sustained postures, standing, walking, sitting, bending, lifting, carrying, pushing, pulling, squatting and overhead activities and questioned the presence of neurological symptoms.

12In addition, the applicant relies on an OCF-18 prepared by Mr. Ahmed Afifi, Physiotherapist of Total Recovery Clinic dated January 3, 2023. The injuries and sequalae are: dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis, sprain and strain of sacroiliac joint, injury of muscle and tendon of abdomen, lower back and pelvis, sciatica, dislocation, sprain and strain of joint and ligaments of hip, injury of muscle and tendon at hip and thigh level, dislocation, sprain and strain of joints and ligaments of thorax, injury of muscle and tendon at thorax level, radiculopathy, headaches, nonorganic sleep disorders, symptoms and signs involving emotional state, emotional shock and stress, nervousness, malaise and fatigue, disturbance of activity and attention, slowness and poor responsiveness, difficulty in walking.

13The applicant states that she is still making good progress, however, she still has significant limitations due mainly to right sciatica and low back pain. The applicant states that she has major functional limitations at home and work. She also has low energy and fatigues quickly, difficulty with most housekeeping tasks, decreased sitting, standing and walking tolerance, unable to do tasks that require heavy lifting and carrying, unable to do tasks that require repetitive bending and twisting.

14The respondent relies on the CNR’s of the applicant’s family doctor, Dr. Patrick Chiu, M.D. The respondent states that the physical injuries that the applicant seeks relief from were never reported in the CNR’s of Dr. Chiu and that Dr. Chiu’s opinion was that the applicant was in overall well heath.

15The applicant has the onus to prove that her injuries are more than minor and warrant treatment above the MIG guidelines. Here, I find that the applicant has not met that onus.

16I find in the CNR’s of the family doctor, Dr. Patrick Chiu, that the applicant first saw her family physician on October 31, 2022, six weeks after the accident. In Dr. Chiu’s CNR’s the purpose of the visit was non accident related. The applicant’s next visit to Dr. Chiu was on January 19, 2023, more than four months post-accident to undergo an annual check. Dr. Chiu noted that she looked well and in no distress and that her vision and hearing were normal. He further noted that there was no chest pain, cough or shortness of breath and that no change in her appetite or weight were reported. He also observed no rash or any painful/swollen joints of any kind. Dr. Chiu’s overall impression was that the applicant was generally well with no medical concerns. Further, on April 2, 2024, the applicant consulted with Dr. Chiu to review her blood work from her 2023 annual check-up. On May 3, 2024, the applicant visited Dr. Chiu to once more undergo an annual check-up. Dr. Chiu again noted no medical concerns. The clinical notes and records indicate that at no time post-accident did the applicant report the accident, or any alleged injuries as a result of the accident to Dr. Chiu.

17Accordingly, on a balance of probabilities, I find that applicant has not met her onus to prove that she suffers from a chronic pain impairment that warrants removal from the MIG.

The applicant does not suffer from a psychological condition.

18I find that the applicant does not suffer from a psychological condition that would warrant her removal from the MIG.

19The applicant relies on a pre-screening psychological assessment prepared by Dr. S. Naisi, Psychologist, of Somatic Assessments dated October 7, 2022, included in the OCF-18. The pre- screening report was supervised by Dr. Naisi and was conducted by Mr. Wai Tin (Kenneth) Wong, Registered Social Worker. This report provides accident details, current symptomatology stating that the applicant suffers from feelings of frustration and signs of depression and anxiety, reduced social action and difficulty returning to daily responsibilities. The report’s recommendation is for a full psychological assessment.

20The respondent relies on the CNR’s of Dr. P. Chiu, family doctor. The respondent submits that no weight should be given to the psychological pre-screening report as none of the alleged complaints are corroborated in Dr. Chiu’s clinical notes and records. Although the applicant reported to Mr. Wai Tin Wong and Dr. Naisi that she was experiencing sciatica on the right side, ongoing pain in her waist and back, cognitive problems and difficulty with coping with her pain and discomfort, none of these complaints or impairments are corroborated in the clinical notes and records of her family physician, Dr. Chiu.

21The respondent cites A.P.T.T. v. Allstate Canada, 2020 CanLII 103678 (ON LAT) where the Tribunal put little weight on the pre-screen report “due to its preliminary nature, there were no extensive tests conducted for anxiety, depression or for validity and, secondly, because it stands alone in its suggestion of psychological impairment.”

22Also the respondent cites L.H. v. Certas Direct Insurance Company, 2020 CanLII 12749 (ON LAT), where Adjudicator Lake confirmed that the Tribunal did not err in giving little weight to the psychological pre-screen report due to the report’s “lack of accompanying CNR and the lack of any psychometric testing being completed [and] no information was provided regarding what medical records or reports, if any, [which] were reviewed in preparation of the psychological pre-screen report.”

23The respondent argues that as in A.P.T.T. and L.H., the psychological pre-screen report of Mr. Wai Tin Wong and Dr. Naisi does not include diagnostic testing to confirm the results which followed. The respondent submits the Tribunal should find that the resulting psychological pre-screening interview is insufficient evidence of a psychological impairment to support a finding of injury or impairment warranting removal from the Minor Injury Guideline, as it is based solely on the applicant’s self-reports. I agree.

24I find that in this case that the lack of testing, or no testing in the pre-screening report makes it difficult for me to assess what the applicant’s psychological condition was at the time of the report. I find that the report is based on the applicant’s self reported psychological symptoms which I find insufficient evidence for me to warrant a psychological impairment, particularly given the lack of corroborating medical evidence.

25For these reasons above, I find on a balance of probabilities, that the applicant has not met her onus to prove that her accident-related impairments warrant removal from the MIG.

26As I found that the applicant remains in the MIG and the $3,500 funding limit, it is not necessary for me to assess whether the treatment plans are reasonable and necessary.

Is the respondent compliant with s. 38(8) in Explanation of Benefits (EOB) denying the treatment plans?

27The applicant makes the additional argument that the denial notices issued by the respondent do not comply with the requirements of section 38(8) of the Schedule.

28Section 38(8) requires an insurer to inform an insured person, within ten business days after it receives the 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.

29The respondent argues that the denials are compliant with the Schedule. The respondent argues that it is sufficient for the denials to say that the applicant’s injuries fall within the MIG, particularly because it had little medical documentation to refer to or base its reasons on. The respondent points out the applicant submitted only the disputed OCF-18s without corroborating evidence to support her claim. As a result of the limited amount of medical documentation provided by the applicant, the respondent submits that its medical reasons were sufficient. I agree.

30The standard for sufficient notice is contained in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT). In her decision, Executive Chair Lamoureux states, at paragraph 19: […] an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. An insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.”

31I have reviewed each of the Explanation of Benefits provided by the respondent and find they do meet the standard set in T.F. v Peel Mutual Insurance Company.

32The Explanation of Benefits dated January 3, 2023, for OCF-18 in the amount of $4,069.56 prepared by Ahmed Afifi of Total Recovery Rehab Centre of Somatic states under additional comments, “We are in receipt of your Treatment and Assessment Plan (OCF-18) prepared by Ahmed Afifi of Total Recovery Rehab Centre and dated January 3, 2023. Based on the medical documentation in your file and the injuries listed on the OCF-18, we have decided that your injuries are predominately soft tissue injuries and can be treated within the Minor Injury Guideline. Minor injury is defined as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae in the Statutory Accident Benefits Schedule (SABS). At this time, we are requesting that Ahmed Afifi of Total Recovery Rehab Centre provide us with a copy of the diagnostic reports including, but not limited to, clinical notes and records, copies of specialist reports and any other information relied upon to determine that the injury is excluded from the Minor Injury Guideline. To date, we have not been provided with any compelling medical evidence documented by your family physician to support that your pre-existing medical condition would prevent you from achieving maximum medical recovery within the minor injury framework.”

33I find in this EOB; the respondent clearly refers to the MIG by its definition listing the injuries that are covered under the MIG. The denial of the OCF-18 is unequivocal and is in language that is straight forward for an unsophisticated person to understand. It identifies the January 3, 2023, treatment plan and advises that the insurer does not agree to pay for it. It provides a medical reason in stating that the applicant’s injuries are predominately soft tissue injuries and references that the applicant’s injuries are minor as defined in the MIG. It also identified the information it did not have, but required, including a copy of the diagnostic reports, clinical notes and records, copies of specialist reports and any other information relied upon to determine that the injury is excluded from the Minor Injury Guideline. Lastly, it refers to the two-year limitation period to dispute the denial and provides details on how to make an application for dispute resolution. For these reasons, I find that the January 3, 2023, EOB is compliant with s. 38(8) of the Schedule and the case law.

34In the Explanation of Benefits dated December 23, 2022, for the OCF-18 for $2,200.00 for assessment, the respondent states “there is no compelling evidence to support that you suffer from a psychological impairment as a result of the accident of September 22, 2022. Dr. S. Naisi of Somatic Assessment & Treatment Clinic provides a copy of the diagnostic reports, including, but not limited to CNR’s, copies of specialist’s reports and any other information relied upon to determine that you have sustained a psychological impairment as a result of the accident.”

35I find in this EOB; the respondent clearly refers to the information that the applicant needs to submit to the insurer for them to clearly review the file. The denial of the OCF-18 is unequivocal and in language straight forward for an unsophisticated person to understand. It identifies the October 7, 2022, treatment plan and advises that the insurer does not agree to pay for it. It provides a medical reason in stating that the respondent does not have evidence of a psychological impairment. It also advised that the respondent has reviewed the report of Dr. S. Naisi of Somatic Assessments & Treatment Clinic and addresses the need for additional information such as a copy of the diagnostic reports including, but not limited to, clinical notes and records, copies of specialist reports and any other information relied upon to determine approval. Lastly, it refers to the two-year limitation period to dispute the denial and provides details on how to make an application for dispute resolution. For these reasons, I find that the December 23, 2022, EOB is compliant with s. 38(8) of the Schedule and the case law.

36Accordingly, the applicant has not established that either of the treatment plans are payable pursuant to s. 38(11) of the Schedule.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51. of the Schedule. No interest is payable because no benefits are overdue.

Award

38No award is granted because no benefits were unreasonably withheld or delayed.

ORDER

39I find on the totality of the evidence that:

i. The applicant’s injuries are minor as defined by s. 3 of the Schedule and as such the applicant remains in the MIG.

ii. None of the disputed treatment plans are payable.

iii. The respondent is not liable to pay an award.

iv. No interest is payable under s. 51 of the Schedule.

v. The application is dismissed.