Ling Chen v. Pembridge Insurance, 2025 CanLII 13570

Licence Appeal Tribunal

Citation: Chen v. Pembridge Insurance, 2025 ONLAT 23-002318/AABS Licence Appeal Tribunal File Number: 23-002318/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:

Ling Chen Applicant

and

Pembridge Insurance Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Ryan Olson, Paralegal For the Respondent: Diana Oliveira, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Ling Chen, the applicant, was involved in an automobile accident on August 3, 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, 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”) in the amount of $185.00 per week from September 1, 2022, to date and ongoing?

iii. Is the applicant entitled to $4,416.71 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted November 21, 2022?

iv. Is the applicant entitled to $641.00 for dental services, on a claim form (OCF-6) submitted December 19, 2022?

v. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan submitted January 25, 2023?

vi. Is the applicant entitled to $3,701.74 for occupational therapy, proposed by Somatic Assessments & Treatment Clinic in a plan submitted April 17, 2023?

vii. Is the applicant entitled to $96.09 for a prescription, submitted on a claim form (OCF-6) dated April 10, 2023?

viii. Is the applicant entitled to $39.32 for a prescription, submitted on a claim form (OCF-6) dated May 16, 2023?

ix. Is the applicant entitled to $47.53 for a prescription, submitted on a claim form (OCF-6) dated September 5, 2023?

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

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

RESULT

3The applicant has not demonstrated on a balance of probabilities that she sustained injuries as a result of the accident that warrant removal from the MIG.

4The parties made no submissions on whether the MIG limits have been exhausted. The applicant is entitled to treatment up to the MIG limits. It is not necessary for me to consider whether the disputed treatment plans and expenses are reasonable and necessary.

5The applicant is entitled to a NEB pursuant to s.36(6) for the period from September 28, 2022, to November 20, 2022, plus interest.

6The respondent is not liable to pay an award.

7The applicant is not entitled to further interest.

PROCEDURAL ISSUES

8The respondent served and filed a Notice of Motion requesting exclusion of the applicant’s evidence that was not provided to the respondent prior to the final production deadline of December 6, 2023. The respondent seeks to exclude the VCare Rehabilitation file, updated decoded OHIP summary from October 7, 2022, to September 22, 2023, income tax returns for 2021-2022, prescription summary (2nd pharmacy) and complete file from all s.25 assessors.

9The applicant takes no position on the motion.

10I find that the applicant did not file the documents which the respondent seeks to exclude with her written hearing submissions. I further find that the only document the applicant filed with her submissions from VCare Rehabilitation is the NEB questionnaire dated November 22, 2022, completed by Dr. Georgia Palantzas, chiropractor, which the respondent received on November 22, 2022. Therefore, since the NEB questionnaire was provided to the respondent before the production deadline, it is properly admitted into evidence.

11I find that the applicant has not filed the following records with her written hearing submissions: VCare Rehabilitation file, updated decoded OHIP summary, income tax return from 2021 to date, prescription summary from the 2nd pharmacy or the complete file from all s.25 assessors. Therefore, I find against the respondent’s motion to exclude late filed evidence, since the applicant did not file any of the documents which the respondent seeks to exclude from the hearing record.

ANALYSIS

The applicant has not sustained accident-related injuries that warrant removal from the MIG

12I find that the applicant has not proven on a balance of probabilities that she sustained a psychological condition as a result of the accident such that she should be removed from the MIG on this basis.

13Section 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 in accordance with the MIG. 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.”

14An 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 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 lies with the applicant.

15The applicant submits that she should be removed from the MIG on account of her psychological impairments, which include insomnia and driving phobia. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Andy Lai, family physician, and the reports of Dr. Sharleen McDowall, psychologist and Dr. Joseph Wong, physiatrist in support of her position. The applicant submits that she reported nightmares and insomnia to Dr. Lai, Dr. Wong and Dr. McDowall after the accident. The applicant further submits that she reported feeling depressed to Dr. McDowall, and Dr. McDowall diagnosed her psychological impairments as major depressive disorder with anxious distress and specific phobia.

16The respondent submits that the applicant reported nightmares and insomnia to Dr. Lai on two occasions and Dr. Lai did not make a psychological diagnosis. I find that the applicant did not advise Dr. Lai that she had nightmares and insomnia until January 22, 2023, and February 28, 2023, five and six months after the accident respectively. Similarly, the applicant also did not report she was suffering from insomnia to Dr. Wong until June 29, 2023, ten months after the accident. Dr. Lai does not mention an accident-related psychological impairment in his CNRs. Although Dr. Lai referred the applicant to the Mental Health Outpatient Program at Scarborough General Hospital, she did not receive any treatment. I accept that the applicant made infrequent complaints to her doctors regarding her psychological symptoms of nightmares and insomnia, and there is no actual diagnosis. The evidence does not support that the applicant has a psychological impairment.

17The applicant also relies on a psychological assessment conducted by Mandy Fang, social worker/psychometrist on February 7, 2023, under the supervision of Dr. McDowall, to support that she has psychological impairments. During the assessment with Ms. Fang, the applicant reported continuous symptoms of poor sleep, low mood, lack of motivation, difficulty controlling her emotions and avoidance behaviour since the accident. In addition, although the applicant reported a diagnosis of concussion to Ms. Fang, there is no mention of a concussion diagnosis in the CNRs of Dr. Lai. However, I don’t find this evidence persuasive because in the psychological report dated February 9, 2023, by Dr. Sharleen McDowall, Dr. McDowall did not review any medical documentation in rendering her diagnosis of major depressive disorder, anxious distress, and specific phobia. Dr. McDowall’s diagnosis is based solely on the applicant’s self-reported inability to function in her pre-accident activities.

18The respondent further submits that although Dr. Wong mentions insomnia and some anxiety, as a physiatrist, Dr. Wong is not qualified to make a psychological diagnosis. On review of Dr. Wong’s report dated June 29, 2023, I find that the applicant self-reported frequent insomnia to Dr. Wong and there is no mention of anxiety symptoms. I accept that Dr. Wong’s opinion does not support the applicant’s position that she suffered a psychological impairment as a result of the accident.

19I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of a psychological diagnosis because the medical evidence suggests there is no mental impairment as a result of the accident.

20Since the applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plans are reasonable and necessary. However, the parties make no submissions whether the MIG limit has been exhausted, and the applicant is entitled to treatment up to the MIG limits.

Non-Earner benefits (“NEBs”)

21The applicant has not established entitlement to NEBs. However, I find that NEBs are payable for the period from September 29, 2022, to November 20, 2022, due to the respondent’s non-compliance with s.36(4) of the Schedule.

Substantive entitlement to NEBs

22Section 12(1) of the Schedule 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.

23Section 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.”

24The 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.

25On the evidence before me, I am unable to engage in the analysis required by Heath to determine if the applicant suffers from a complete inability to carry on a normal life. The applicant relies on the Disability Certificate (“OCF-3”) dated September 3, 2022, completed by Dr. Palantzas, and the report of Dr. McDowall in support of her entitlement to a NEB, but she does not further address the test. The evidence does not provide any details of her pre-accident activities or demonstrate how her participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to the applicant, how she is prevented from engaging in the activities she normally engaged in pre-accident or evidence of the frequency and time commitments of her pre-accident activities. In the absence of this information, it is not possible to compare the applicant’s pre- and post-accident capabilities with respect to the activities she ordinarily engaged in or valued.

26I agree with the respondent that the medical evidence does not establish that the applicant suffers from a complete inability to carry on a normal life as a result of the accident.

27For the reasons set out above, I find that the applicant has not established on a balance of probabilities that she suffered from a complete inability to carry on a normal life as a result of the accident from September 1, 2022, to date and ongoing. As a result, I find that the applicant has not established substantive entitlement to NEBs.

Procedural requirements of s.36(4) of the Schedule

28I find that the applicant has established that a NEB is payable for the period from September 29, 2022, to November 20, 2022, due to non-compliance with section 36(4) of the Schedule.

29As an alternative argument, the applicant submits that she is entitled to a NEB based on the respondent’s non-compliance with s.36(4) of the Schedule.

30Section 36(4) of the Schedule states that within 10 business days after an insurer receives an application and a completed Disability Certificate (“OCF-3”), the insurer shall:

i. Pay the specified benefit;

ii. Give the applicant a notice explaining the medical and other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires and examination under s.44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

iii. Send a request to the applicant under s.33(1) or s.33(2).

31Should the requirements outlined in s.36(4) of the Schedule not be met, s.36(6) of the Schedule states:

If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate, and ending, if the insurer subsequently gives a notice described in subsection (4)(b), on the day the insurer gives the notice.

32Section 36(5) of the Schedule provides that if the insurer sends a request to the applicant under s.33(1) or (2), the insurer shall within 10 business days after the applicant complies with the request, pay NEB, or give the applicant notice described in s.36(4)(b).

33The applicant submits that she submitted an OCF-3 dated September 3, 2022, supporting her entitlement to a NEB to the respondent. She further submits that the respondent provided an Explanation of Benefits (“EOB”) dated November 20, 2022, requesting further information, including a NEB questionnaire, decoded OHIP summary from August 3, 2021, to November 20, 2022, and CNRs of the family physician from August 3, 2021, to November 20, 2022.

34The applicant further submits that the decoded OHIP summary from August 3, 2021, to October 7, 2022, was provided on October 17, 2022, the completed NEB questionnaire was provided on November 22, 2022, and the CNRs of Dr. Lai were provided after that date, (there is no mention of the date these records were provided in the applicant’s written submissions). The applicant argues that the respondent never subsequently denied the NEB after all the requested documents were provided. However, the applicant does not indicate when the CNRs of her family physician were provided to the respondent.

35The respondent made no submissions regarding its non-compliance with s.36(4).

36The respondent did not respond to the applicant’s application for a NEB until November 20, 2022, which exceeds 10 business days after receiving the OCF-3 on September 28, 2022.

37The respondent provided a compliant denial in EOB dated November 20, 2022, in which it made requests for medical documentation under s.33 to be provided by December 12, 2022. Since the respondent made a request pursuant to s.33 of the Schedule, the NEB was suspended under s.36(4).

38I find that the respondent is liable to pay a NEB for the period of non-compliance from September 29, 2022, to November 20, 2022. I further find that the respondent is not liable to pay a NEB beyond November 20, 2022, as the applicant did not respond to the request for the CNRs of Dr. Lai within 10 business days, in contravention of s.33(1). Since there is no evidence before me to suggest when the applicant provided the requested CNRs of her family physician to the respondent, the respondent is not required to pay the benefit for the duration of non-compliance pursuant to s.33(6).

39I further find that the applicant is not owed a NEB as a result of s.33(8) of the Schedule. Section 33(8)(a) of the Schedule states that if an applicant who does not initially comply with s.33(1) subsequently complies with that subsection, the insurer “shall resume payment of the benefit, if a benefit was being paid.” As there were no benefits being withheld due to the applicant’s non-compliance with s.33(1) of the Schedule, the applicant cannot be entitled to a resumption of payment of the NEBs pursuant to s.33(8) as the payments were never started.

40Therefore, I find that since the respondent did not comply with s.36(4) of the Schedule until their denial of a NEB on November 20, 2022, the applicant is entitled to a NEB for the period from September 29, 2022, to November 20, 2022.

The applicant is entitled to interest for the period of non-compliance

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

42Since I have found that the applicant is entitled to a NEB at a rate of $185.00 per week from September 29, 2022, to November 20, 2022, she is also entitled to interest on overdue benefits.

The applicant is not entitled to additional interest or an award

43Under s.10 of Reg.664, 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. Although the applicant points to the respondent’s procedural non-compliance with s.36(4) of the Schedule, the punitive remedy for such non-compliance is already provided in s.36(6) of the Schedule. The applicant has not established that an additional award is warranted, in addition to the payment of the benefit mandated by s.36(6).

44Since there are no additional benefits owing, there is no further interest payable to the applicant.

ORDER

45For the reasons set out above, I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit. The applicant is entitled to treatment up to the MIG limits and, it is not necessary to consider whether the disputed plans for chiropractic services and occupational therapy, and expenses for dental services and prescriptions are reasonable and necessary;

ii. The applicant is entitled to a NEB in the amount of $185.00 per week for the period from September 29, 2022, to November 20, 2022, plus interest;

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

iv. As there are no additional benefits owing, the applicant is not entitled to further interest, and;

v. The application is dismissed.