Licence Appeal Tribunal File Number: 23-006462/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:
Yao Da Gao
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Bryn Copp, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Yao Da Gao, the applicant, was involved in an automobile accident on May 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, 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 $131.51 ($1,290.54 less $1,106.09 approved) for physiotherapy services, proposed by Atlas Physiotherapy & Health, in a treatment plan submitted on August 11, 2022?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic, in a treatment plan submitted on June 27, 2022?
iv. Is the applicant entitled to $12.42 ($177.85 less $165.43 approved) for medication, submitted on a claim form (OCF-6) dated May 30, 2022?
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 he is therefore subject to treatment within the $3,500.00 Minor Injury Guideline.
4The denied portion of the treatment plan for physiotherapy services ($131.51) is payable pursuant to s. 38(11) once incurred and properly invoiced by the applicant, plus applicable interest.
5The applicant is not entitled to the treatment plan for a psychological assessment or the denied amount of $12.42 submitted on the OCF-6.
6The respondent is not liable to pay an award.
ANALYSIS
Application of the MIG
7I find that the applicant has not proven on a balance of probabilities that he should be removed from the MIG.
8Section 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.”
9An 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 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.
10The applicant submits that he suffers from psychological impairments and accordingly does not belong in the MIG. He relies on a note from Dr. Heung-Wing Li, a physician at a walk-in clinic, from May 10, 2022. The applicant reported nightmares and phobia with driving, and Dr. Li indicated a diagnosis of “complex PTSD”. He also prescribed Lunesta and Cymbalta, and encouraged the applicant to talk to his friends, be more active, and participate in group gatherings.
11The applicant also relies on a psychological consultation report, prepared by Mandy Fang, social worker, under the supervision of Dr. Sharleen McDowall, psychologist, on May 16, 2022. The applicant reported a number of psychological symptoms to Ms. Fang including poor sleep, flashbacks and ruminations regarding the accident, anxiety, poor mood, and avoidance behaviour with respect to driving. Her opinion was that the applicant should not fall under the MIG and recommended a full psychological assessment battery with psychometric testing and a thorough clinical interview.
12I am not convinced that the applicant sustained a psychological impairment as a result of the accident. Dr. Li’s note does not explain how he arrived at a diagnosis of “complex PTSD”, or whether he conducted any diagnostic testing. Without further information, I am not persuaded by Dr. Li’s diagnosis. In addition, Dr. Li did not recommend that the applicant receive psychological counselling as a result of that diagnosis and did not recommend further psychological investigations. Further, Ms. Wang’s consultation report appears to have been based entirely on the applicant’s self-report. I question how Ms. Wang came to her conclusion regarding the MIG without a diagnosis, psychometric testing, or a thorough clinical interview.
13Additionally, there is no evidence before me that the applicant complained of psychological difficulties to any practitioner after the consultation with Ms. Fang, which took place less than two weeks after the accident. There are no further records from Dr. Li before me. The applicant obtained a new family physician in July 2022 but never complained to him of any accident-related issues or psychological difficulties.
14For those reasons, I find that the applicant has not proven on a balance of probabilities that he suffered from a psychological impairment that warranted his removal from the MIG.
15I also note that, although the applicant quotes from s. 18(2) in his submissions and argues that he suffers from injuries that prevents him from achieving maximal recovery under the limits of the MIG, he has not adduced any evidence that he suffered from a pre-existing medical condition, nor that any pre-existing condition would prevent him from achieving maximal recovery if he was subject to the limit under the MIG. I accordingly find that he has not proven that he should be removed from the MIG as a result of s. 18(2).
16As the applicant advised that the MIG limits have been exhausted, I need not determine whether the treatment plans are reasonable and necessary pursuant to s. 15 and 16 of the Schedule. However, the applicant submits that the respondent failed to meet the requirements set out in s. 38(8) when denying the treatment plan, and therefore it is payable pursuant to s. 38(11).
17I find that the denied portion of the treatment plan for physiotherapy is payable once incurred and properly invoiced by the applicant.
18Section 38(8) of the Schedule requires an insurer to provide its medical and all other reasons for a denial within 10 business days after receipt of a treatment plan. If an insurer fails to provide the requisite denial, under “s. 38(11)2”, it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11th business day after the treatment plan was submitted until the proper denial is given.
19The “medical and all other reasons” provided 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. The reasons provided 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.
20The respondent provided the applicant with a denial letter on August 25, 2022, partially approving this treatment plan up to the monetary limit under the MIG. The letter states that based on the respondent’s review of the treatment plan in conjunction with other file material provided to date, it believed that the applicant’s injuries were covered under the MIG. It also indicated that it had no compelling evidence to support that the injuries the applicant suffered were not predominantly minor in nature.
21I find that this letter was not compliant with s. 38(8), as it failed to provide details about the applicant’s condition or what documentation was reviewed in order to make that determination. Although I agree with the respondent that it is not required to invent medical reasons when no medical documentation is available, the respondent did not advise in its letter that it could not determine whether the applicant belonged in the MIG; it relied on unidentified file material to make that determination. Due to this lack of information, I find that an unsophisticated person reviewing this letter would not understand why the MIG applied and why the treatment plan was being denied.
22While the parties did not refer me to the case of Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200, I am bound by it. The Divisional Court ruled that where an insurer fails to provide a proper s. 38(8) notice and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to consume the disputed OCF-18. The insurer shall pay for that disputed OCF-18 in accordance with s. 38(15) and cannot cure their defective denial.
23The respondent has not pointed me to a subsequent denial letter that complied with s. 38(8). I accordingly find that the denied portion of the treatment plan is payable pursuant to s. 38(11), once incurred and properly invoiced by the applicant.
24I find that this treatment plan is not payable.
25The treatment plan was denied on July 8, 2022, as a result of the MIG limits, however it was also denied because the respondent had insufficient medical evidence to support a finding that the applicant suffered a psychological impairment as a result of the accident. The respondent requested additional documentation from Somatic Assessments & Treatment Clinic Inc. and advised that it would review its determination upon receipt of the documentation.
26I find that this letter was compliant with s. 38(8). The respondent requested information about the applicant’s condition that it did not have, identified that condition, and specified the documentation it required. In my view, an unsophisticated person would understand what information the respondent required and why the treatment plan was not payable in the absence of that information. As such, this treatment plan is not payable by operation of s. 38(11).
OCF-6 for Medication
27I find that the denied amount of the OCF-6 is not payable.
28The amount of $12.42 denied by the respondent pertains to a prescription for Betaderm, a medication used to relieve eczema symptoms. The applicant submits that Dr. Li prescribed this medication because he had an increase in eczema symptoms due to the stress of the accident.
29The note from Dr. Li dated May 10, 2022, states that the applicant was complaining about more eczema since the accident. The note subsequently states: “stress related”. It is unclear whether this comment was based on the applicant’s self-report that it was stress-related or was based on Dr. Li’s opinion. However, Dr. Li’s ultimate diagnoses did not include stress-related eczema, and there is no other medical evidence before me that indicates the applicant had a stress-related eczema condition. I find that there is insufficient evidence to compel me that the applicant’s eczema was related to the accident, and as such, the cost of the eczema medication is not payable.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest is applicable on the payment of the denied portion of the treatment plan for physiotherapy.
Award
31The 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.
32The applicant submits generally that an award should be granted but does not explain why he believes the respondent acted unreasonably. It is well established that an “award should not be ordered just because an insurer made an error or an incorrect decision. In order to attract a s. 10 award, an insurer’s conduct must rise to the level of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I have not been directed to evidence that respondent acted in such a manner, and therefore I find that the applicant has not proven his entitlement to an award.
ORDER
33The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule, and he is therefore subject to treatment within the $3,500.00 Minor Injury Guideline.
34The denied portion of the treatment plan for physiotherapy services ($131.51) is payable pursuant to s. 38(11) once incurred and properly invoiced by the applicant, plus applicable interest.
35The applicant is not entitled to the treatment plan for a psychological assessment or the denied amount of $12.42 submitted on the OCF-6.
36The respondent is not liable to pay an award.
Released: February 26, 2025
Rachel Levitsky
Adjudicator