Licence Appeal Tribunal File Number: 23-004970/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:
Ying Pang
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Ryan Olson, Paralegal
For the Respondent: James Kolumbus, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Ying Pang, the applicant, was involved in an automobile accident on March 5, 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, TD General 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 limit and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic (“SATC”) in a treatment plan/OCF-18 (“plan”) submitted July 20, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG.
4As the applicant is subject to the MIG, it is not necessary to consider whether the disputed plan is reasonable and necessary. The applicant is subject to treatment up to the MIG limits.
5The respondent’s denial of treatment plan dated July 20, 2022 was a proper notice in accordance with s.38 (8) of the Schedule, and therefore, this treatment plan is not payable pursuant to s.38(11) of the Schedule.
6As there are no overdue benefits, there is no entitlement to interest or an award.
ANALYSIS
The applicant has not demonstrated on a balance of probabilities that she suffers from accident-related injuries that warrant removal from the 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 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.”
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 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.
9The applicant submits that she should be removed from the MIG based on her accident-related psychological injuries.
Psychological impairment
10I find that the applicant has not demonstrated on a balance of probabilities that she has an accident-related psychological impairment that warrants removal from the MIG.
11The applicant submits that she should be removed from the MIG on account of her accident-related psychological injuries. The applicant points to the clinical notes and records (“CNRs”) of Dr. Shabana Rana, family physician and a pre-screen interview, conducted by Sherry Jiang, qualifying psychologist under the supervision of Dr. Sharleen McDowall, psychologist. In a June 9, 2022 pre-screen report, Dr. McDowall indicates that the applicant has returned to her self-employment at a bubble tea shop, and she continues to drive with caution. Dr. McDowall further indicates that the applicant has difficulty sleeping due to discomfort.
12Although Dr. McDowall recommends a psychological assessment, I find there is no indication in the medical evidence that the applicant has an accident-related psychological impairment. The applicant does not refer to any notes from Dr. Rana regarding a psychological impairment as a result of the accident. On March 19, 2022, two weeks after the accident, Dr. Rana indicates the applicant’s sleep is good and she has resumed driving despite her fear.
13The respondent submits that the applicant has not provided medical documentation in support of a claim for a psychological impairment to warrant removal from the MIG, and I agree. The respondent relies on the CNRs of Dr. Rana and the June 9 2022 report of Dr. McDowall. The respondent submits that the applicant has not reported any psychological issues to her doctor other than insomnia and fear of driving. The respondent further submits that on April 25, 2023, Dr. Rana indicates that for the past year, the applicant has insomnia due to stress of marital issues and marriage counselling is recommended.
14I find that Dr. McDowall did not review the CNRs of Dr. Rana and relies solely on the applicant’s self reports in completing her report. I agree with the respondent, and I place little weight on the diagnosis of a psychological impairment by Dr. McDowall in the absence of supporting documentation of an accident-related psychological impairment by the applicant’s treating physician.
15Overall, I find on a balance of probabilities that the applicant has not met her onus of establishing she has a psychological impairment that warrants entitlement to treatment beyond the MIG.
16I find the applicant is subject to the MIG.
The disputed treatment plan
17Since the applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plan is reasonable and necessary.
Section 38(8) of the Schedule
18Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
19If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8). See: Aviva General Insurance Company v. Catic, 2022 ONSC 6000.
20The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.
Sufficiency of the Respondent’s Denial of OCF-18 dated July 20, 2022
21The applicant argues that the plan dated July 20, 2022 for a psychological assessment by Dr. Sharleen McDowall, submitted by Somatic Assessments in the amount of $2,200.00 was improperly denied by the respondent. The respondent wrote to the applicant on August 15, 2022 denying the benefits, 17 business days after receiving the plan on July 20, 2022. I find that the respondent, therefore breached the 10 business day timeline in s. 38(8) of the Schedule. Pursuant to s.38(11), the insurer shall pay for all goods and services described in the plan starting on the 11th business day until it gives proper notice.
22The applicant submits that the respondent’s denial was generally improper without providing particulars regarding this plan. I find that the August 15, 2022 was a valid denial letter. It indicates that the applicant’s injuries fall under the MIG, and the respondent had not received any objective medical information to support an injury to warrant removal from the MIG. It further indicates that the respondent requested compelling medical information to determine whether she sustained a non-minor injury or a pre-existing condition that would prevent recovery under the MIG.
23I find that the August 15, 2022 letter was a valid denial letter albeit seven days late. I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.
24I am bound by the Divisional Court decision of Aviva General Insurance v. Catic, 2022 ONSC 6000. The Court found that s.38(11)2 compels the insurer to pay for all items in the treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. The applicant has not provided evidence that the treatment plan in dispute was incurred prior to August 15, 2022. As such, I find that the plan dated July 20, 2022 is not payable by operation of s.38(11).
25I find on a balance of probabilities that the applicant has not met her burden to establish that this plan is payable under section 38.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, interest does not apply.
Award
27The 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 no benefits were delayed, an award under s.10 of Reg. 664 is not warranted.
ORDER
28For the reasons outlined above, I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit;
ii. The applicant is not entitled to the treatment plan in dispute;
iii. The applicant is not entitled to interest or an award, and;
iv. The application is dismissed.
Released: February 25, 2025
Lisa Holland
Adjudicator