Licence Appeal Tribunal File Number: 24-003084/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:
Bai Song Zhao
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Rakesh Sharma, Counsel
Sareena Samra, Counsel
For the Respondent:
Andrew Rodrigues, Counsel
HEARD:
By Way Of Written Submissions
OVERVIEW
1Bai Song Zhao, the applicant, was involved in an automobile accident on May 17, 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, Allstate Insurance Company of Canada, 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 an income replacement benefit in the amount of $400.00 per week from May 25, 2023 to present and ongoing?
iii. Is the applicant entitled to $4,393.90 for chiropractic services, proposed by Total Recovery Rehabilitation Services in a treatment plan/OCF-18 (“plan”) submitted December 6, 2023?
iv. Is the applicant entitled to $2,144.93 for the cost of a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan submitted June 28, 2023?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The 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. As the applicant is in the MIG, assessing whether the plans in dispute are reasonable and necessary is unwarranted. The applicant is not entitled to payment of the proposed plans under s. 38(11) of the Schedule. The applicant is not entitled to an IRB, or to interest. The respondent is not liable to pay an award. The application is dismissed.
PROCEDURAL ISSUES
Adverse inference against the applicant
4The respondent argues that the applicant was required to provide the respondent with several documents related to the issues in dispute within 45 days of the case conference held on July 18, 2024. However, the applicant has only complied with two of the eight production orders issued by the Tribunal in the Case Conference Report and Order. The Applicant has failed to produce six of the ordered productions under paragraph 19. i. Including (a), (b), (d), (e), (f), and (h). The respondent also argues that the applicant has not complied with requests from its accountants and s. 33 requests. On this basis, the respondent requests that I make an adverse inference that if the various material evidence had been produced, it would not favour the applicant.
5I find that it is unnecessary to draw a negative inference in this case because the applicant did not address his evidentiary onus on any of the issues in dispute. Accordingly, my decision does not turn on whether I make an adverse inference.
ANALYSIS
Section 54 of the Schedule and deemed entitlement upon completion of forms
6The applicant refers to s. 54 of the Schedule at the outset of submissions to define the burden of proof and scope of this hearing before me, arguing 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 section 54 of the Schedule and the applicant’s onus to disprove the reasons on the balance of probabilities to prove entitlement to the denied benefits.
7The applicant has provided no authority to support this interpretation. Section 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.
8As a result of these self-placed limitations, the applicant’s focus at this hearing is mistakenly that he is required to disprove the respondent’s reasons for denial of benefits. Further, the applicant’s position is that he is to be deemed entitled to benefits for simply submitting forms. For example, the applicant argues that a treatment and assessment plan/OCF-18 proposing treatment is deemed reasonable and necessary if it is completed and submitted in compliance of s. 38(3) of the Schedule. Another example is that while the applicant correctly identifies the requirements of an application for an IRB to include both an application for accident benefits or OCF-1, and a disability certificate or OCF-3, the applicant argues that completing the OCF-3 deems the applicant entitled to the IRB. No authority was cited in support of these interpretations. Rather, it is well established that these forms are not considered medical evidence sufficient to discharge the applicant’s evidentiary burden in hearings before the Tribunal.
9As a result of the applicant’s interpretations, he has not submitted any medical evidence relating to the issues in dispute that would assist him in meeting his evidentiary onus. Since the onus is on the applicant to establish entitlement, I note that the strength or weakness of the respondent’s case does not assist the applicant in meeting his burden, substantively, on the issues in dispute.
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 MIG limit?
10I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.
11Section 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.”
12An 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. In all cases, the burden of proof is on the applicant.
13The applicant has not made substantive submissions regarding removal from the MIG. The applicant has not addressed the definition of a minor injury in s. 3(1) of the Schedule or presented compelling or corroborating medical evidence in support of the position that the applicant’s injuries fall outside of that definition. I do not find it necessary to address every argument made by the applicant and will instead focus on the legal test that applies to the issue in dispute, which is well settled at this Tribunal.
14The applicant argues that removal from the MIG is warranted in this case based on sections 38(1) and 38(3) of the Schedule. The applicant’s position is that if a plan is submitted in compliance with the Schedule, then it is deemed reasonable and necessary and it requires funding beyond the MIG limit. The applicant places limits on her submissions and argues submissions solely dealing with removal from the MIG are unnecessary and will not be made:
Therefore, MIG applicability gets disputed/ determined not in isolation of a substantive issue, but with respect to the substantive issues and in this case the following OCF18 are the substantive issues that were denied by the respondent as the MIG applies.
Thus, the applicant will not be making any submissions solely on the applicability of MIG, but will dispute applicability of the MIG with respect to the denied substantive issues.
15The parties agree that the MIG limit has been exhausted. The applicant argues that I must assess whether the applicant has complied with s. 38 of the Schedule in submitting the proposed plans in dispute. The applicant’s submissions in this regard relate to the content of a treatment and assessment plan as prescribed by s. 38(2) of the Schedule. I find that these submissions are not relevant to the legal test for removal from the MIG. The applicant’s position is that if the plan was submitted in compliance with the Schedule, it should be deemed reasonable and necessary. I find that this is not supported by the Schedule, and it reverses the onus onto the respondent.
16The applicant further argues that since submitted plans are deemed reasonable and necessary and the amount proposed is beyond the MIG limit, the applicant would not be subject to the MIG limit. Based on the applicant’s submissions, the onus should then shift to the respondent to defend its denial notice under s. 38 of the Schedule. As noted earlier, the applicant provided no authority to support the position, and I am not persuaded by the applicant’s submissions.
17Indeed, at paragraph 24 of Scarlett v. Belair, the Divisional Court expressly states that “the burden remains on the insured throughout to establish entitlement to the appropriate level of benefits.” That would be true for the applicant to establish entitlement to a level of benefits higher than the MIG regime. I am bound by the Divisional Court’s 2015 decision, which has not been overturned. Therefore, the law is established and well-settled and the applicant’s arguments fail to distinguish or displace its binding value.
18For the reasons above, I find on a balance of probabilities that the applicant is subject to the MIG.
The applicant is not removed from the MIG on the basis of a psychological condition
19While the applicant has not made substantive submissions which could warrant removal from the MIG, the applicant has referred to psychological impairments in his submissions. To ensure the resolution of this dispute on its merits, I considered whether the applicant can be removed from the MIG as a result of a psychological condition.
20It is well settled that a treatment and assessment plan is not medical evidence. I have reviewed the plan and find that the plan does not confirm a psychological condition warranting removal from the MIG. Instead, it notes the evaluation it proposes will determine a clinical diagnosis. As a result, the proposed plan and its contents do not assist the applicant in establishing removal from the MIG.
21I have nothing to corroborate what is contained in the plan with medical evidence that may assist me. I do not have any clinical notes and records or reports. The pre-screen report included in the additional comments section is completely based on the applicant’s self-reporting at the pre-screening interview.
22The pre-screen report notes as a clinical opinion:
[The applicant] was involved in a motor vehicle accident on May 17, 2023. He continues to experience pain in his neck and back, along with reoccurring headaches. Additionally, [the applicant] reported being emotionally distressed and said he struggled with fear, anxiety, depression, frustration, irritation, and fatigue. [The applicant] had no preexisting psychological difficulties, and his current mental health issues are a direct result of the accident. His clinical presentation provides evidence she is experiencing many of the symptoms commonly found in individuals suffering from post-accident psychological impairment. Furthermore, his pain and psychological challenges are affecting his daily activities and work performance.
23The pre-screen report then makes recommendations:
Given the severe and acute nature of the client's ongoing pain and psychological impairment as a direct result of the motor vehicle accident, this client should NOT fall under the Minor Injury Guidelines {MIG) category. The accident has materially contributed to the client's impairment, and the motor vehicle accident-related disabilities constitute a significant barrier to recovery and return to pre-accident levels of functioning. Because the client's psychological impairment is acute, [the applicant] needs to undergo a full psychological assessment battery including psychometric testing and a thorough, in-depth clinical interview to determine her clinical diagnosis and psychological treatment needs.
24I give the pre-screen report no weight for the following reasons:
i. it is undated,
ii. it is not signed by anyone,
iii. while the OCF-18 is completed by Dr. Svetlana Gabidulina, Psychologist, the pre-screen report is based on an interview of the applicant conducted on June 28, 2023 by Sherry Jiang, MA., R.P (Qualifying). There is no mention of whether Dr. Gabidulina supervised the interview.
iv. it is unclear from the report who provided the clinical opinion or recommendations,
v. it does not mention a review of any records, completion of any objective testing, and seems to be solely based on the applicant’s self-reporting at the interview,
vi. it states its purpose to uncover potential psychological consequences rather than confirming a psychological condition that may way warrant removal from the MIG,
vii. It is written in the voice of an advocate rather than a neutral medical assessor. For example:
a) It refers to the applicant as a client rather than a patient,
b) It advocates by using language such as “this client should NOT fall under the Minor Injury Guidelines (MIG) category.”,
c) It simultaneously recommends a full psychological assessment battery including psychometric testing and a thorough, in-depth clinical interview while also confirming severe and acute psychological impairment in addition to causation being as a direct result of the subject accident prior to completion of the assessment.
25For the reasons above, I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.
Income Replacement Benefit (IRB)
26To 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.
27To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
28The applicant did not refer me to the essential tasks of his employment, which tasks he is unable to perform and to what extent. The applicant did not refer me to any objective testing or other medical evidence in support of his position that he is entitled to an IRB. The applicant did not make substantive arguments for entitlement regarding either of his claims for pre- or post-104-week IRB. Instead, the applicant is challenging the respondent’s suspension of payment of IRB and my reasons will address the issue from this perspective.
29In this regard, the applicant refers me to an Explanation of Benefits (“EOB”) dated August 16, 2023. This correspondence notifies the applicant that the respondent has forwarded his file to Davis Martindale, chartered professional accountants, to assist it in calculating eligibility and entitlement to an IRB. Further, that the applicant will receive instructions from its accountant if further information is required. By correspondence of the same date from Davis Martindale addressing the applicant, a request for further information was made listing 7 items, in order to calculate the applicant’s income replacement benefit.
30Both parties agree that the applicant did not respond to the accountant’s request. By further EOB dated December 17, 2023, the respondent notified the applicant that since he had not provided the requested information and documents to the accountant by November 20, 2023, he was in non-compliance pursuant to s. 33(6) of the Schedule because the information was reasonably required to assist in determining the applicant’s entitlement to the IRB.
31The applicant argues that it is improper for the respondent to invoke s. 33(6) for a stoppage of payment. The applicant argues that he was not put on notice prior to the EOB dated December 17, 2023 that the information requested on August 16, 2023 was pursuant to s. 33 of the Schedule. Further, that the applicant was not made aware of the consequences of non-compliance. For these reasons, the applicant argues that the IRB continued to be payable from May 23, 2023 until March 5, 2024, when further correspondence was delivered to the applicant advising he was not eligible for an IRB based on multidisciplinary insurer examinations.
32There are two concerns with the applicant’s position that IRB continued to be payable from March 23, 2023 until March 5, 2024. First, the applicant has not referred to any authority for his interpretation that, for a s. 33 request to be proper, it must be identified by referring to s. 33(1)(1) of the Schedule, or that the request must refer to the consequences in s. 33(6) of the Schedule. I did not find such language in s. 33 of the Schedule. Second, even if I accept the applicant’s interpretation, the respondent’s notice dated December 17, 2023 included references to both ss. 33(1) and 33(6).
33In any case, I find that the correspondence from the respondent and the accountants both dated August 16, 2023 are clear that the accountant’s request was for the purpose of assisting in calculating eligibility and entitlement of an IRB on behalf of the respondent. Further, I find that the applicant had plenty of opportunity to, but has not provided, a reasonable explanation for the delay in complying with the request as provided in the December 17, 2023 EOB. There is no reference before me that the applicant complied with the request as of the date of submissions. The respondent argues that there is no reference to any reasonable explanation on the part of the applicant, and I agree.
34On this basis, I find that the applicant remains in non-compliance of the August 16, 2023 request which required the applicant to provide the information within 10 business days.
35Lastly, the applicant argues that the multidisciplinary insurer examinations are flawed. He argues they are flawed because both the psychological examination by Dr. Mor and the physical examination by Dr. Oshidari opine that the applicant does not meet the disability test without identifying the applicant’s essential tasks. He does not, however, provide evidence that meets his onus. Even if I agreed with the applicant that the reports are flawed, giving the reports no weight does not assist the applicant in meeting his evidentiary burden on this issue at this hearing.
36Therefore, I find on a balance of probabilities that the applicant is not entitled to IRBs.
Is the applicant entitled to $2,144.93 for the cost of a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan submitted June 28, 2023?
37As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute is reasonable and necessary. The applicant also makes arguments pursuant to s. 38(8) which I have considered below. I find that the respondent’s denials were compliant with s. 38(8).
38The applicant argues that the respondent’s denial notice dated August 22, 2023 is the equivalent of not providing any reasons at all. The applicant also argues that the denial notice was not provided within 10 business days after submission of the proposed plan for a psychological assessment. While the applicant does not specifically refer me to the Schedule in his submissions regarding this August 22, 2023 denial, in context, I take it that he is arguing the denial notice is not compliant with section 38(8) of the Schedule and that he is claiming payment under s. 38(11) of the Schedule.
39Section 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 an impairment to which the MIG applies, in relation to the treatment plan.
40As to the applicant’s position that the respondent did not provide a notice within 10 business days after receipt of the proposed plan, I am not referred to any evidence establishing when the plan was submitted to the respondent. Since submissions do not lay out any particulars of the dates or refer me to evidence that would assist me in calculating the days between submission of the plan and the respondent’s notice, I find that the applicant has not established this position on the evidence before me.
Denial reasons dated August 22, 2023
41As for the respondent’s notice being deficient in its reasons for denial, the EOB dated August 22, 2023 provides the following reasons, in summary:
i. There is insufficient medical evidence to support a finding of a psychological impairment as a result of the accident.
ii. The applicant’s injuries fall within the definition of a minor injury under the MIG and the $3,500.00 limit applies.
42The applicant argues this is mere conjecture and the notice does not contain meaningful reasons that would permit the applicant to decide whether to challenge the denial. In this context, the applicant refers me to Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318. The applicant contends the respondent’s notice is not meaningful because it does not reference the medical evidence it relied on to conclude that the applicant suffered a minor injury.
43I agree with the respondent that the notice provided sufficient reasons and that citing the MIG is a valid medical reason because it is defined in the Schedule using medical terminology. Also, noting the applicant has not provided sufficient medical evidence to support a finding of a psychological impairment as a result of the accident is a reason that meets the requirements of s. 38(8). In my view, the notice is compliant with s. 38(8). The respondent’s reasons engage the specific details about the applicant’s condition forming the basis for the respondent’s decision and are adequate to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial. Once the requirements of s. 38(8) are met, as above, the plan is not subject to the shall pay provision of s. 38(11). In this regard, the applicant’s arguments that the plan is payable because of insufficient reasons in a subsequent denial dated March 5, 2024 are not supported by the Schedule.
Denial reasons dated March 5, 2024
44I find, on a balance of probabilities, that the respondent’s March 5, 2024 reasons do not trigger the s. 38(11) shall pay provision.
45After denying the proposed plan with reasons dated August 22, 2023, the applicant attended multidisciplinary insurer examinations, a psychological examination by Dr. Mor and a physical examination by Dr. Oshidari. The respondent relies on the resulting reports in confirming the denial of both proposed plans in dispute. The applicant argues that Dr. Mor’s report is inadmissible under s. 15(2)(b) of the Statutory Powers Procedure Act for a number of reasons summarized as follows:
i. The respondent did not provide a notice of insurer examination within 10 days of receipt of the proposed plan for a psychological assessment as required by ss. 38(8) and 38(10).
ii. The respondent’s notice of examination was responding to the proposed plan for chiropractic treatment, so the psychological examination contravenes s. 44(1) of the Schedule.
46I am not referred to any statute or regulation that expressly prohibits the admission of this report at a hearing before this Tribunal. Further, I am not referred to any evidence that the applicant objected to the examination in advance of his attendance. I find it unnecessary to assess at length whether the second notice relying on the insurer examination reports was improper. There is nothing in s. 44 of the Schedule suggesting a deficient notice of examination results in the report being inadmissible in a hearing before this Tribunal. Even if I was to agree with the applicant that the notice of examination was not compliant with s. 44, there is no shall pay provision under s.44 of the Schedule that could support the applicant’s conclusion that he is entitled to this payment.
47Further, I note that ss. 38(8), 38(10) or 44(1) of the Schedule do not require a notice of examination to be provided to the applicant within 10 days of receipt of a proposed plan. Rather, I agree with the respondent that s. 38(10) states the respondent may include a s. 44 notice of examination within a s. 38(8) denial notice, but this is not a requirement. Further, the respondent did not contravene the Schedule when it denied the psychological assessment based on application of the MIG and subsequently requesting a psychological examination to continue adjusting the applicant’s file.
48I also note that this decision does not turn on the strength or weakness of the respondent’s evidence, including any of the insurer examination reports, on any of the issues in dispute. The evidentiary onus is on the applicant and he has not met it based on the evidentiary record.
49For the reasons above, I find, on a balance of probabilities, that the applicant is not entitled to payment $2,200.00 for a psychological assessment under s. 38(11).
Is the applicant entitled to $4,393.90 for chiropractic services and to $2,144.93 for the cost of a psychological assessment?
50I find that the respondent’s denial notice complies with the Schedule.
51The applicant seeks “an order that the denial of this proposed plan is flawed, arbitrary and statutorily deficient, therefore the denied treatment plan is reasonable and necessary and the applicant is entitled to treatment payable other than the MIG.” Since the applicant remains subject to the MIG, it is unnecessary to conduct a reasonable and necessary analysis of the plans.
52The core of the applicant’s argument can be summarized as follows:
i. The respondent ignored the information contained in the proposed plan to make a determination on whether it was reasonable and necessary.
ii. The respondent contradicted itself by first stating that it is denying the plan because the applicant is within the MIG and subsequently scheduling an insurer examination to determine if the MIG applies.
iii. The insurer examination report of Dr. Oshidari is statutorily deficient because it did not apply legal tests within the report.
53While the applicant does not specifically refer me to the Schedule in his submissions that would entitle him to payment of this plan, in context, I take it that he is arguing the denial notice is not compliant with section 38(8) of the Schedule and that he is claiming payment under s. 38(11) of the Schedule.
54It is well settled that a treatment and assessment plan is not medical evidence. The applicant has not provided any authority that there is a requirement for the respondent’s denial notice to address every claim made in the proposed plan. Further, it is not a contradiction when the respondent denies a plan based on the MIG and subsequently sends a notice of examination to continue adjusting the file. Lastly, the applicant has not referred me to any authority that requires an insurer examination report to assess the applicant by applying legal tests.
55The respondent’s reasons engage the specific details about the applicant’s condition forming the basis for the respondent’s decision and are adequate to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial.
56For these reasons, I find, on a balance of probabilities, that the applicant is not entitled to payment for this plan proposing chiropractic treatment under s. 38(11).
Interest
57The applicant is not entitled to interest because there are no overdue benefits to which interest would apply pursuant to s. 51 of the Schedule.
Award
58The 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 there are no payments of benefits that the applicant is entitled to that were unreasonably withheld or delayed, the respondent is not liable to pay an award.
ORDER
59For the reasons above, I make the following orders:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG limit.
ii. As the applicant is in the MIG, it is not necessary to assess the reasonableness and necessity of the plans in dispute. The applicant is not entitled to payment of the proposed plans under s. 38(8) of the Schedule.
iii. The applicant is not entitled to an IRB, or to interest.
iv. The respondent is not liable to pay an award.
v. The application is dismissed.
Released: December 18, 2025
__________________________
Amar Mohammed
Adjudicator