Citation: Kuo v. Security National Insurance Company, 2025 ONLAT 23-007392/AABS

Licence Appeal Tribunal File Number: 23-007392/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:

Chia Lien Catherine Kuo

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Sareena Samra

For the Respondent: Matthew Dugas

HEARD: By way of written submissions

OVERVIEW

1Chia Lien Catherine Kuo, the applicant, was involved in an automobile accident on November 23, 2018, 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, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the case conference held on January 10, 2024, two separate applications with file numbers 23-005640/AABS and 23-007392/AABS were combined. Both applications are now proceeding under file no. 23-007392/AABS.

PRELIMINARY ISSUE

3The preliminary issue to be decided in the hearing is:

i. Is the applicant barred from proceeding with her claim for income replacement benefits (substantive issue 1 below) because she was driving without a valid driver’s licence pursuant to s. 31(1)(a)(ii) of the Schedule? If so, is the respondent entitled to a repayment of $9,483.76 of income replacement benefits for the period of May 10, 2021, to May 10, 2022?

SUBSTANTIVE ISSUES

4The substantive issues to be decided in the hearing are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $364.78 per week from June 1, 2019, to date and ongoing?

ii. Is the applicant entitled to $6,774.40 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan (“OCF-18”) dated March 7, 2023?

iii. Is the applicant entitled to $6,603.44 for physiotherapy services, proposed by Total Recovery Rehab Centre in an OCF-18 dated May 1, 2023?

iv. Is the applicant entitled to $172.46 for naturopath therapy submitted on expenses claim form (“OCF-6”) dated August 21, 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

5With respect to the preliminary issue, the applicant is barred from proceeding with her claim for IRBs pursuant to s. 31(1)(a)(ii) of the Schedule. Pursuant to s. 52, the respondent is entitled to repayment of IRBs in the amount of $9,483.76, plus applicable interest.

6With respect to the substantive issues:

i. The applicant is not entitled to the OCF-18s in dispute or interest;

ii. The applicant is not entitled to payment of $172.46 for naturopath therapy submitted on the OCF-6 dated August 21, 2023; and

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

PRELIMINARY ISSUE

Law

7Section 52 of the Schedule concerns the repayment of benefits. Under s. 52(1)(b), a person is liable to repay any IRB paid to them if the person was disqualified from receiving the benefit under Part VII of the Schedule. In particular, under s. 31(1)(a)(ii) of the Schedule an insurer is not liable to pay an IRB to a person who was driving without a valid driver’s licence at the time of the accident.

8The onus is on the insurer which seeks to bring itself within an exclusion in s. 31.

The applicant was driving without a valid driver’s licence

9The applicant does not dispute that she was driving with a suspended licence at the time of the accident. The Ministry of Transportation Driver’s Licence History indicates that the applicant’s driver’s licence status is “Suspended/Cancelled/Unlicensed/Unrenewable” and the “Expiry Date” was identified as September 21, 2018, more that two months before the subject accident. The Police Motor Vehicle Accident report from the date of the accident also identified the applicant as a “Suspended Driver”.

10The respondent submits that the wording of s. 31(1)(a)(ii) of the Schedule is clear and direct, that if the driver was driving without a valid driver’s licence, then the insurer is not required to pay an IRB. It argues that unlike other subsections of s. 31(1)(a), a “knowledge requirement” is not required for subsection (ii). For example, s. 31(1)(a)(i) and (iv) have the added language “if the driver knew or ought reasonably to have known”. As such, s. 31(1)(a)(ii) holds that the fact that the applicant was driving without a valid driver’s licence is sufficient to eliminate any IRB payment obligations from the respondent, regardless of the applicant’s knowledge or other contextual factors. The respondent cites a number of Tribunal decisions which held that a suspended licence was not a valid driver’s licence.

11The applicant submits that she had no “ill intention” to drive without a licence and that her driver’s licence was only suspended. She argues that she was not aware that her licence had been suspended and that there is no definition of driver’s licence in the Schedule. The applicant further submits that she has been found to be catastrophically impaired, and as such, should be treated with care. Finally, the applicant argues that her suspension was during the height of the COVID-19 pandemic and that the renewal processes were restricted during these unprecedented times.

12I find that the respondent has met its onus of proof to establish that the applicant was driving without a valid driver’s licence at the time of the accident, and as such, the conditions of s. 31(1)(a)(ii) are met.

13Although the applicant argues that her driver’s licence was only “suspended” and that there is no definition of driver’s licence in the Schedule, the respondent has tendered caselaw where a suspended licence was found to be an invalid licence, see Harsanyi v. The Co-operators General Insurance Company, 2021 CanLII 35592 (ON LAT). Further, in Joseph (Bruce) Leduc v. Aviva Canada Inc., 2014 ONFSCDRS 104 the definition of “valid driver’s licence” in O. Reg. 340/94 – Drivers’ Licences was considered, and it was identified as a licence that is “not expired, cancelled or under suspension”. I find the decisions cited by the respondent persuasive on the point that a suspended licence is not a valid driver’s licence. The applicant has provided no authority or caselaw to support her position that a suspended licence is still a valid driver’s licence.

14Further, I am not persuaded by the applicant’s argument that she was unaware of the suspension or unable to renew her licence due to COVID delays and closures. I agree with the respondent and its cited caselaw that whether or not the applicant knew of her suspension is not a relevant consideration under s. 31(1)(a)(ii). This subsection does not provide for a defence of reasonable explanation or driver’s knowledge unlike s. 31(1)(a)(i) and (iv) which expressly include a “knew or ought reasonably to have known” requirement. I agree with the Tribunal’s reasoning in Harsanyi that the Legislature clearly turned its mind to the knowledge issue and decided not to include it for a driver driving an automobile without a valid driver’s licence. Section 31(1)(a)(ii) also does not contemplate the consideration of contextual factors, such as whether the applicant was catastrophically impaired.

15Finally, I am not persuaded by the applicant’s argument that her suspension occurred during the height of the COVID pandemic and that renewals were restricted during these times. The date of the accident was November 23, 2018, more than a year before any COVID related restrictions or delays were put in place. For example, O. Reg 73/20 which put in place COVID-related extensions began in March 16, 2020 more than a year after the accident.

16Given that the conditions of s. 31(1)(a)(ii) are met and that the applicant was disqualified from receiving IRBs, the respondent further requests repayment of IRBs pursuant to s. 52 of the Schedule.

The respondent is entitled to repayment of IRBs pursuant to s. 52

17I find that the respondent is entitled to repayment of IRBs in the amount of $9,483.76, plus interest.

18Under s. 52(1)(b) of the Schedule, a person is liable to repay any IRB paid to them if the person was disqualified from receiving the benefit under Part VII of the Schedule. This would include the exclusion in s. 31(1)(a)(ii) considered above. The respondent further cites s. 52(1)(a) of the Schedule, which allows for repayment as a result of an error on the part of the insurer or the insured person.

19Sections 52(2) and (3) establish timelines for repayment requests if a “person is liable for repayment”. The insurer is required to give the person notice of the amount that is to be repaid within 12 months after the payment of the amount to be repaid.

20The respondent has established that it provided the applicant a notice that was compliant with s. 52 of the Schedule. The letter dated May 10, 2022, specified the amount of IRBs to be repaid being $9,483.76, and that repayment of IRBs paid for the previous 12 months was being requested pursuant to s. 52. The applicant has not provided any submissions on the issue repayment or whether the notice was deficient. I find that it was compliant with s. 52.

21As such, I find that the respondent is entitled to repayment of IRBs in the amount of $9,483.76. Interest applies to the overdue amounts pursuant to s. 52(5) of the Schedule.

SUBSTANTIVE ISSUES

22Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

23The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

OCF-18s for chiropractic and physiotherapy services are not reasonable and necessary

24The applicant submitted two OCF-18s for physical treatment. The first OCF-18 dated March 7, 2023, in the amount of $6,774.40 proposed 20 sessions each of chiropractic treatment, active therapy and acupuncture treatment. The second OCF-18 dated May 1, 2023, in the amount of $6,603.44 proposed 20 sessions each of physiotherapy, active therapy and massage treatment.

25The applicant submits that both treatment plans are reasonable and necessary to address her ongoing chronic pain, reduced range of motion and functionality as a result of the accident. She argues that she has met the burden of a catastrophic determination, and that all of her treating practitioners have said that the treatment is necessary. The applicant further submits that the records confirm that treatment has assisted in her pain and level of functionality, and that the applicant’s treating practitioners should be given greater deference than the respondent’s insurer’s examination (“IE”) assessors.

26The respondent argues that both OCF-18s propose an excessive amount of repetitive treatment rather than specialized or uniquely formulated treatment. The respondent relies on the s. 44 orthopaedic assessments of Dr. Safir, who found that no further facility based physical rehabilitation, either active or passive, was clinically indicated. Rather, Dr. Safir recommended self-management strategies and an exercise program. With respect to the applicant’s argument of catastrophic impairment, the respondent submits that she was deemed catastrophically impaired on psychological grounds, not due to physical impairments.

27I find that the applicant has not met her onus to prove that the OCF-18s are reasonable and necessary. The treatment plans in dispute propose physical treatment four to five years after the subject accident. Particularly in the case of ongoing therapeutic treatment, evidence is required to establish the efficacy of continued treatment, years after the accident. The applicant argues that her records establish that treatment has improved her pain and functionality. However, she does not direct me to any specific medical record, report or clinical notes and records (“CNR”) entry in support of this claim. Rather, the applicant provides the general submission that “the records” confirm improvement.

28The Case Conference Report and Order expressly specified that the parties’ submissions must make “specific reference to the evidence by tab and page number.” The applicant has not made any specific reference to evidence supporting her claim of improvement in symptoms as a result of treatment. The Tribunal’s role is that of a neutral arbiter, not an advocate for any party. The Tribunal cannot presume to know which evidence or portion thereof, if any, that a party intends to rely on in advancing her case.

29Further, the applicant reported to all of her assessors that she has been consistently attending facility-based treatment in the years post-accident. However, no treatment records have been provided from the applicant’s prior clinics, to establish whether she saw any improvement in her pain or functional restrictions with the years of treatment. The applicant has provided inconsistent reports as to the benefits of prior treatment. Although she reported “some” improvement with prior physiotherapy, she reported to both her own and the respondent’s CAT psychological assessors that her physical improvement since the accident was 0%, if anything her pain has worsened, and that nothing helped her pain, including physiotherapy.

30To the extent that the applicant did not sustain improvement with her prior treatment, no explanation has been provided by the applicant as to how the treatment proposed in the new OCF-18s differs from her earlier treatment. With respect to the applicant’s argument that her treating practitioners should be given more deference than the respondent’s IE assessors, she does not specify which treating practitioners are recommending the proposed treatment. The applicant does not direct me to any CNR from her family physician or specialist around the time of the OCF-18 submission, to establish whether further physiotherapy or chiropractic treatment was being recommended by her treating doctors.

31As such, I find that the applicant has not met her onus to prove that the OCF-18s for physiotherapy and chiropractic treatment are reasonable and necessary.

The OCF-6 for $172.46 of naturopathic therapy is not reasonable and necessary

32I find that the applicant has not established entitlement to the OCF-6 for naturopathic treatment. The applicant has not provided any submissions or details of the naturopathic treatment or why it is reasonable and necessary. The respondent further submits that it denied the claim form on the basis that it was not submitted on an OCF-18. The applicant has not provided any response to the denial.

33The applicant bears the onus to prove that proposed treatment is reasonable and necessary. Without any specific submissions from the applicant on the OCF-6, I find that she has not met her burden in this regard.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits owing to the applicant, no interest is payable by the respondent.

Award

35The 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. I find that the applicant has not established that any payment of benefits was unreasonably withheld or delayed. As such, the respondent is not liable to pay an award.

ORDER

36The applicant is barred from proceeding with her claim for IRBs pursuant to s. 31(1)(a)(ii) of the Schedule.

37The respondent is entitled to repayment for IRBs pursuant to s. 52 of the Schedule, in the amount of $9,483.76, plus applicable interest.

38The applicant is not entitled to the OCF-18s, the OCF-6 or interest.

39The respondent is not liable to pay an award.

40The application is dismissed.