Licence Appeal Tribunal File Number: 24-002374/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:
Cecilia Chan
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Rakesh Sharma, Counsel
Sareena Samra, Counsel
For the Respondent:
Jaskarn Pabla, Counsel
HEARD:
By Way Of Written Submissions
OVERVIEW
1Cecilia Chan, the applicant, was involved in an automobile accident on February 7, 2023, 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 a non-earner benefit (“NEB”) of $185.00 per week from March 7, 2023 to date and ongoing?
iii. Is the applicant entitled to $101.97 ($1,100.00 less $998.03 approved) for physiotherapy services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated April 26, 2023?
iv. Is the applicant entitled to $4,217.20 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan dated June 15, 2023?
v. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated March 30, 2023?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3Through submissions, the applicant amended the period for which NEB is sought from March 7, 2023 to date and ongoing, to March 27, 2023 to February 3, 2025.
RESULT
4The applicant is subject to the MIG. The applicant is not entitled to payment for the proposed plans in dispute. The applicant is not entitled to a NEB or to interest. The respondent is not liable to pay an award.
ANALYSIS
The applicant’s onus
5At the outset, I will address the applicant’s submissions with respect to the onus because this affects all of the issues in dispute. The applicant generally describes her onus on this application as follows:
A trial by written hearing of the issues in dispute is restricted to the applicant discharging the onus on balance of probabilities that the applicant made a claim that was in compliance with the statutory requirements and the denials/ reasons of denials served upon the applicant by way of a notice under section 54 of the Schedule in respect of the issues in dispute were either flawed, arbitrary and/ or statutory deficient of the Schedule provisions to prove entitlement to the denied benefits. Thus, applicant does not have an onus to disprove the case made out by the respondent that is not based on the denial reasons served upon the applicant under section 54 of the Schedule.
6Based on the above, the applicant makes the following argument:
Thus, at the hearing, the applicant’s role is to disprove on the balance of probabilities the denial reasons provided by the respondent in its denial notice to prove entitlement to the benefits and the respondent role is to defend the denial reasons. Therefore, the hearing adjudicator role is also limited to determine if the applicant on the balance of probabilities was able to disprove the denial reasons to be entitled to denied benefits or the respondent was able to defend the denials.
7The burden of proof rests on the insured to establish entitlement to benefits pursuant to the Schedule. The onus is on the applicant independent of the strength or weakness of the respondent’s position. The applicant has not provided a basis or authority in limiting my role to determining whether the respondent’s reasons for denial have been “disproved” by the applicant as the basis for entitlement. As a result, I will address the issues in dispute in light of evidentiary burden being on the applicant on all of the issues in this hearing.
The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit
8I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.
9Section 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.
10An 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 medical 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.
11The applicant did not address in submissions the legal test for removal from the MIG or refer me to medical evidence addressing removal. It is well established that treatment and assessment plans are not medical evidence. The applicant’s main arguments can be summarized as follows:
i. That plans submitted outside of the MIG are deemed reasonable and necessary when submitted in compliance with s. 38(3) and that once submitted, the onus is on the respondent under s. 38(8) to provide medical and all other reasons supporting its position that it is not reasonable and necessary.
ii. Since the plans are deemed reasonable and necessary until proven otherwise by the respondent’s medical reasons, it follows that the applicant can gain funding beyond the MIG limit through submitted plans, with no reference made by the applicant to being removed from the MIG.
iii. That the respondent’s denial notice did not comply with s.38(8) because its reasons are not meaningful, so the proposed plans remain deemed reasonable and necessary, and the applicant is entitled to funding beyond the MIG for those plans.
12The applicant has not addressed the definition of a minor injury in section 3(1) of the Schedule or presented corroborating evidence to support that the applicant’s injuries fall outside of that definition. The applicant’s arguments instead focus on the proposed plans being deemed reasonable and necessary, and also point to issues with the respondent’s s. 38(8) notices which do not address the test for removal from the MIG.
13Insofar as the applicant is relying on the plan proposing a psychological assessment to argue entitlement beyond the MIG, the plan notes the proposed assessment, or evaluation will determine the presence of and the extent of the applicant’s psychological impairments. I will address the plan in more detail separately because the applicant did not lead evidence establishing a psychological condition that may warrant removal from the MIG or that the plan relates to any substantive argument for removal from the MIG.
14For the reasons above, I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly a minor injury as defined by the Schedule.
The applicant is not entitled to $101.97 ($1,100.00 less $998.03 approved) for physiotherapy services
15I find, on a balance of probabilities, that the applicant is not entitled to this disputed plan.
16The applicant seeks entitlement to the disputed amount of $101.97 on the basis that this amount was sought under the MIG and that the disputed amount is available under the MIG. The Case Conference Report and Order confirms the amount is available under the MIG. Accordingly, the applicant argues that the proposed plan is deemed reasonable and necessary under s. 40(8) of the Schedule which states:
If it is determined, in any dispute described in subsection 280 (1) of the Act about an insured person’s entitlement to medical or rehabilitation benefits or related assessments or examinations, that the Minor Injury Guideline applies to an insured person and the insured person received benefits or underwent assessments or examinations under that Guideline,
(a) the benefits are deemed to be reasonable and necessary, or essential, as the case may be, for the purposes of sections 15 and 16; and
(b) the assessments and examinations are deemed to have been reasonably required for the purposes of section 25.
17This section applies when an insured person has already received benefits or has undergone assessments under the MIG. In this context, s. 40 repeats the applicant’s requirement to submit an OCF – 23 Treatment Confirmation Form.
18Accordingly, upon review of the proposed plan, OCF-18 form, states that:
If this is an impairment that comes within the Minor Injury Guideline applicable to the accident (for accidents that occurred on or after September 1, 2010) an OCF – 23 Treatment Confirmation Form is required instead of this form.
19It seems the applicant instead sought benefits within the MIG under s. 40(7):
i. If goods or services available under the Minor Injury Guideline are not provided within the times specified in that Guideline, the insured person shall submit a treatment and assessment plan under section 38 if he or she wishes to obtain medical or rehabilitation benefits to which the Minor Injury Guideline would otherwise apply.
20Accordingly, the proposed plan confirms:
21I find that it is not necessary that I complete a reasonable and necessary analysis for plans when the applicant is subject to the MIG limit. However, where an insured sought benefits within the MIG limit and a dispute arises whether there is compliance with the Schedule regarding those benefits and they are being withheld or are denied, as is the case before me, it is necessary that I assess if the parties complied with the Schedule.
22The applicant refers me to two pieces of evidence being relied upon, the plan itself and the denial letter. The plan was for $1,100.50, seeking treatment within the MIG limit. The respondent approved three line-items totalling $998.03. The approval included five sessions of physiotherapy, six sessions of active therapy, and $200.00 for completion of the plan. The respondent denied $102.47 for a 1.03 hour reassessment by a physiotherapist, relying on s.15(2)(b) and 16.(4)(a) arguing as follows:
i. the respondent is not liable to pay more than the maximum hourly rate for a physiotherapist set by the Professional Services Guideline, Superintendent’s Guideline 03/14, September 2014 (“PS Guideline”), and
ii. the respondent is not liable to pay more than $200.00 for completion of a plan which includes examination and assessments.
23As to the hourly rate, the plan proposing a reassessment states it would take 1.03 hours for a total cost of $102.47. I find that this is at or below the maximum rate of $99.75 per hour as set out in the PS Guideline.
24As to the maximum fee of $200.00 for completion of a plan, the PS Guideline states that this fee applies to reviewing and approving the plan, including any assessment or examination necessary for the purpose of that review and approval. The respondent’s position is that the proposed reassessment is therefore properly part of the $200.00 fee already approved. I am persuaded by the language of the PS Guideline that assessments or examinations necessary for the purpose of reviewing and approving plans are incorporated into the $200.00 fee.
25The applicant argues that completion of the plan has a unique HCAI code, 7SJ30LB, whereas the reassessment has a separate unique HCAI code, 2ZZ02, so they are not one and the same thing.
26I do not have evidence before me addressing what the denied reassessment was for, and the applicant’s submissions are not sufficient to discharge her evidentiary burden. While the plan refers to unique HCAI codes, the applicant has not established with evidence that I should interpret the HCAI codes the way the applicant proposes.
27I note that the same treatment facility submitted another plan in which it proposed a reassessment with HCAI code 2ZZ02 for $200.00 which further puts into question the applicant’s position that this code is not for the $200.00 completion fee, without evidence to support it.
28For the reasons above, on a balance of probabilities, I find that the applicant has not established that the proposed reassessment is other than an assessment or examination covered by the $200.00 for completion of a plan and therefore I am not persuaded it is compliant with the PS Guideline or reasonable and necessary.
The applicant is not entitled to $4,217.20 for chiropractic services or to $2,200.00 for a psychological assessment
29Since the applicant is subject to the MIG, it is unnecessary to assess whether the proposed plans are reasonable and necessary.
Are plans deemed reasonable and necessary under s.38(3)?
30The applicant argues that the proposed plans are deemed reasonable and necessary when submitted in compliance with s. 38(3) and that once submitted, the onus is on the respondent under s. 38(8) to provide medical and all other reasons supporting its position that it is not reasonable and necessary. The applicant’s argument is that as long as a proposed plan is complete, it is sufficient to be deemed reasonable and necessary. The applicant did not refer me to any authority for this interpretation of the Schedule. I find that the applicant’s position reverses the onus onto the respondent to establish that the applicant is not entitled to benefits.
Is the respondent’s denial notice compliant with s. 38(8)?
31The applicant argues that the respondent’s denial notice dated June 27, 2023 and May 3, 2023 did not comply with s.38(8) due to insufficient reasons.
32Section 38(8) requires an insurer to inform an insured person, within 10 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 a impairment to which the MIG applies.
33The respondent’s reasons should engage the specific details about the applicant’s condition forming the basis for the respondent’s decision and be adequate to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial.
34The respondent’s notices for each of the proposed plans provide the following summary of reasons for denial:
i. The applicant’s list of injuries was reviewed,
ii. There is no pre-existing condition described as it relates to the MIG,
iii. The applicant’s injuries are subject to the MIG,
iv. Recommendations must address the applicant’s diagnosis,
v. Clinical notes and records from the applicant’s family doctor may support approval of the plans.
35The applicant argues the notice does not contain meaningful reasons that would permit the applicant to decide whether to challenge the denial. The applicant refers me to Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318. The applicant contends that regulated health professional completed the proposed plans opining within the plans that the applicant’s impairment is not predominantly a minor injury subject to the MIG. As a result, the respondent’s notices are not meaningful because they do not reference what medical evidence it relied on which states the applicant suffered a minor injury. Further, that the respondent is not a regulated health professional so it cannot render a medical opinion to counter the opinions within the proposed plans, so the reasons cannot be sufficient. I find that the applicant has not supported this interpretation of the Schedule. To be compliant, I find that the Schedule requires the respondent to provide medical and any other reasons but does not require a medical opinion. Nor does the Schedule require that the reasons are found to be correct.
36I agree with the respondent that the notice provided sufficient reasons and that citing the MIG is a valid medical reason because it is a medical term defined in the Schedule. Also, noting the applicant has not provided evidence to warrant removal from the MIG such as a pre-existing condition or clinical notes and records of the family doctor are valid reasons that meet the requirements of s. 38(8). In my view, the notice is compliant with s. 38(8) because they are adequate to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial.
37For the reasons above, I find, on a balance of probabilities, that the proposed plans are not payable under s. 38(11) because the denials are compliant.
The applicant is not entitled to a non-earner benefit
38I find that the applicant is not entitled to a non-earner benefit (“NEB”).
39Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, (“Heath”) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
40Section 36(4) of the Schedule states that within 10 business days after the insurer receives the application (“OCF-1”) and completed disability certificate (“OCF-3”), the insurer shall pay the specified benefit, provide notice explaining why the insurer is not paying the benefit, or advise the insured of the requirement for an examination under s. 44, or send a request under s. 33. Section 33 requires the insured to provide the insurer with any information reasonably required to assist the insurer in determining the applicant’s entitlement.
41The applicant makes a number of arguments that can be summarized as follows:
i. the NEB has not been denied in compliance with the Schedule because the respondent’s notice under s.36(4)b provided insufficient reasons.
ii. An OCF-1 and OCF-3 must be sufficient without further evidence to entitle the applicant to a NEB because otherwise the Schedule drafters have created an incomplete application process, which does not reconcile with the legislation’s consumer protection intent.
iii. The list of options the respondent may exercise under s. 36(4)a-c should be read as a conjunctive list, requiring it to commence payment of an NEB within 10 days even if it sends a s. 33 request, which only suspends payment and does not deny entitlement.
The respondent’s denial notice and reasons
42I find that the respondent’s denial notice and reasons are compliant with s. 36(4)b of the Schedule. Given this finding, it is not necessary to assess the applicant’s other arguments because I have found that the respondent properly denied entitlement to a NEB. However, I will address the applicant’s arguments to the extent they overlap with sufficiency of the respondent’s reasons.
43The applicant states that the OCF-3 dated March 16, 2023 was faxed to the respondent on April 27, 2023 and the respondent provided a denial notice on May 3, 2023. The applicant refers me to an OCF-1 and OCF-3 in submissions but did not provide copies for review. The OCF-3 dated March 16, 2023 completed by Dr. Richard Tavares, chiropractor, is also referred to and is provided by the respondent. In the OCF-3, Dr. Tavares has endorsed that the applicant suffers a complete inability to carry on a normal life and explains that the patient is unable to perform her pre-accident activities of daily living without exacerbating her symptomology.
44The respondent’s May 3, 2023 notice denies entitlement to the non-earner benefit for the following reasons:
Please be advised that [in] order to be eligible for a Non-Earner Benefit you must suffer a complete inability to carry on a normal life. A complete inability to carry on a normal life means you have sustained an impairment that continuously prevents you from engaging in substantially all of the activities in which you ordinarily engaged before the accident.
Your Chiropractor completed a disability certificate indicating you are unable to carry on a normal life. I currently have insufficient information on file to support that you meet the test of disability for a Non-Earner Benefit. Please submit the following documentation to support you suffer a complete inability to carry on a normal life: 1- Clinical Notes and Records from your Family Dr. (2 years pre-accident to present) 2- My activities form that has been sent separately 3-OHIP records from Dec 2021 to present.
45The Schedule requires the respondent to give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit. The Tribunal has considered that, to be sufficient, the respondent’s reasons should engage the specific details about the applicant’s condition forming the basis for the respondent’s decision and be adequate to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial.
46I find that the respondent’s reasons in its notice are sufficient. The respondent’s medical reasons referred to the test for a NEB and the applicant’s lack of evidence establishing a medical record supporting she meets the test for entitlement to the NEB. In my view, depending on the circumstances, medical reasons may contain a positive claim, for example asserting and relying on a medical opinion. Medical reasons may also assert a negative claim, for example asserting that a medical opinion supporting the applicant does not exist, is not true, or lacks a certain quality. In this case the nature of the respondent’s medical reason falls into the latter category and further include a request for information. I also note that the applicant argued the respondent is not qualified to provide a medical opinion and therefore the denial reasons are not medical reasons, as required by the Schedule. I find that there is a distinction between medical reasons and a medical opinion and that the respondent is not required in every instance to rely on a medical opinion in providing medical reasons.
47As it relates to the sufficiency of the respondent’s reasons, the applicant also argues that the respondent cannot hold the position that it has insufficient information to support that the applicant meets the disability test for the NEB because the Schedule sets out that submission of the OCF-1 and OCF-3 are sufficient for entitlement. The applicant argues that it could not have been the intent when drafting the Schedule as consumer protection legislation that an applicant would be required to submit forms as an application for a NEB that are inherently insufficient when in practice something more is required, like family doctor and OHIP records. I was not referred to any authority to support this interpretation. I am not persuaded by this interpretation because it focuses on s. 36 without also incorporating ss. 12(1) and 3(7)a which define the disability test the applicant needs to meet. It seems that the applicant’s position is that entitlement requires claiming benefits using the standard forms without corroborating or compelling medical evidence without authority for this.
48I am further not persuaded by the applicant’s interpretation for the following reasons. I find, as the respondent argues, that providing an OCF-3 in which Dr. Tavares certifies that the applicant meets the disability test is not sufficient to prove entitlement in the absence of more information and evidence. The respondent argues and I find that there is a lack of comparison of activities and life circumstances over a reasonable period before and after the accident to assist it in adjusting in favour of the applicant. The respondent refers me to Heath and the disability test and argues in the absence of evidence it has reason not to believe the applicant is entitled to a NEB as noted in its denial letter. On this basis, I find that the applicant’s characterization of the OCF-1 and OCF-3 being sufficient for entitlement is not the case because the forms provided the applicant an opportunity to meet the test, but they do not guarantee that every applicant will meet the test by simply submitting the forms.
49Lastly, the applicant did not refer me to evidence relating to the NEB outside of the OCF-3 and the denial notice because she feels that argument at this hearing should be limited to the evidence originally submitted to the insurer and the respondent’s denial. I was not referred to authority for this interpretation or limitation placed on application hearings at this Tribunal. I find, as the respondent argues, I do not have evidence of the applicant’s pre-accident activities, post-accident activities, or the impact of the accident on those activities, which are essential aspects of claims for NEB.
50For the reasons above, I find that, on a balance of probabilities, the applicant is not entitled to a NEB.
Interest
51There are no overdue benefits to which interest applies under s. 51 of the Schedule.
Award
52The 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. As there are no benefits unreasonably withheld or delayed to which the applicant is entitled, the respondent is not liable to pay an award.
ORDER
53For the reasons above, I make the following orders:
i. The applicant is subject to the MIG.
ii. The applicant is not entitled to payment for the proposed plans in dispute.
iii. The applicant is not entitled to a NEB or to interest.
iv. The respondent is not liable to pay an award.
Released: December 12, 2025
Amar Mohammed
Adjudicator