Huasimeng Li v. TD General Insurance Company, 2025 CanLII 28456

Citation: Li v. TD General Insurance Company, 2025 ONLAT 23-008936/AABS

Licence Appeal Tribunal File Number: 23-008936/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:

Huasimeng Li

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Nathan Prince

APPEARANCES:

For the Applicant: Ryan Olson, Paralegal

For the Respondent: Alanna Pink, Counsel

HEARD: By way of written submissions

OVERVIEW

1Huasimeng Li, the applicant, was involved in an automobile accident on June 16, 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. Is the applicant entitled to a non-earner benefit (“NEBs”) of $185.00 per week from July 15, 2022 to date and ongoing?

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

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

RESULT

3The applicant is not entitled to NEBs.

4As no benefits are payable, the applicant is not entitled to interest or an award.

ANALYSIS

5The applicant submits that she meets the test for NEBs, and further, that the respondent’s denial letters do not comply with the requirements of section 36 of the Schedule.

6The respondent submits that its denial letters are compliant with section 36 of the Schedule and that the applicant has not demonstrated that she is entitled to NEBs.

7For the reasons that follow, I find that the applicant has not demonstrated on a balance of probabilities that she is entitled to NEBs and further find that the respondent’s denial letter is compliant with section 36 of the Schedule. As such, I find that the applicant is not entitled to NEBs.

The applicant has not demonstrated that she is entitled to NEBs

8Section 12(1) 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. Section 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.” The 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.

9The applicant relies on the OCF-3 completed by Mr. Santhosh Michael, physiotherapist; the clinical notes and records (“CNRs”) of Easy Health Centre; and psychological pre-screen report completed by Dr. Sedigheh Naisi, psychologist.

10The OCF-3 completed by Mr. Michael on June 21, 2022 indicates that the applicant suffers from a complete inability to carry on a normal life due to the pain and suffering she is experiencing. The OCF-3 lists the applicant’s injuries as whiplash associated disorder; sprain/strain injuries to the back, shoulder, wrist, knee, and ribs; contusion of the knee; headaches; neck pain; and non-organic sleep disorders. The OCF-3 notes that the applicant is unable to continue with her pre-accident activities including housekeeping, cooking, laundry, grocery, shopping, going for walks, and contacting relatives.

11I find that the applicant’s OCF-3 is insufficient to demonstrate entitlement to NEBs. The OCF-3 indicates that the applicant’s condition is expected to last 9-12 weeks and no further OCF-3 was submitted to indicate that the applicant’s symptoms continued beyond this point. Furthermore, the functional impairment described by the applicant is not supported by any other contemporaneous medical record. Moreover, I find the OCF-3 lacks detail as to the level of functional impairment or the frequency of impairment to conduct a comparison of the applicant’s pre- and post-accident activities as outlined in Heath.

12On October 22, 2022, Dr. Naisi conducted a pre-screen assessment which indicated that the applicant has had trouble with the onset and maintenance of sleep since the accident. The applicant reported to Dr. Naisi that she was experiencing persistent sadness, passenger and pedestrian anxiety, reduced social interaction, increased worry and stress, poor appetite, and flashbacks. Dr. Naisi further noted that the applicant reported having difficulty resuming her daily responsibilities and handling personal hygiene due to her physical and psychological impairments and that she had reduced social interactions and difficulty engaging in her pre-accident recreational activities.

13While I acknowledge the applicant’s reporting of limitations to Dr. Naisi, I find that these self-reports do not meet the high bar of demonstrating that the applicant suffers from a complete inability to carry on a normal life. Again, I find that the applicant’s reports do not have the requisite level of detail for me to conduct a comparison of the applicant’s pre- and post-accident activities as outlined in Heath. The report does not address what daily responsibilities that applicant is struggling with, how her personal hygiene has been affected, or what the applicant’s pre-accident recreational activities entailed. As such, I find that Dr. Naisi’s pre-screen report is not persuasive in demonstrating that the applicant suffers from a complete inability to carry on a normal life.

14Finally, the applicant relies on the CNRs of Easy Health Centre which indicate that the applicant attended for physiotherapy treatment between July 28, 2022 and May 9, 2023. The CNRs indicate that the applicant was experiencing neck, back, shoulder, and elbow pain in addition to headaches; however, the applicant reported improvement of her symptoms on several occasions. While I appreciate that the CNRs report ongoing pain, I find they are of little assistance in determining the applicant’s entitlement to NEBs as they do not address the applicant pre- and post-accident activities nor do they identify the activities that the applicant valued most and how her impairments have affected her ability to complete them, as contemplated by Heath.

15I find on a balance of probabilities that the applicant does not suffer from a complete inability to carry on a normal life and therefore the applicant is not entitled to NEBs.

The respondent’s denial letter is compliant with section 36(4) of the Schedule

16I find that the respondent’s denial letter dated November 7, 2022 is compliant with section 36(4) of the Schedule.

17Section 36(4) of the Schedule provides that:

(1) Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,

i. pay the specified benefit;

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

iii. send a request to the applicant under subsection 33 (1) or (2). O. Reg. 34/10, s. 36 (4).

18Section 36(6) provides that 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.

19The applicant submits that the respondent’s denial is not compliant with section 36(4) because it does not provide any medical reason for the denial as required by section 36(4)(ii).

20The applicant relies on M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (“M.B.”) in which the adjudicator found that “medical and any other reasons” 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.

21The applicant further relies on Wu v Aviva General Insurance Company, 2023 CanLII 50592 (“Wu”) which confirmed that the reasons for denial must include information relating directly to the applicant’s claim and medical condition in order to allow the applicant to make an informed decision about accepting or disputing the insurer’s denial.

22I agree with the reasoning in M.B. and Wu in that the denial letter must include specific reference to the applicant’s medical condition. At the same time, I find that these authorities do not assist the applicant in this case because I find that the respondent’s denial sufficiently addresses the applicant’s specific medical condition.

23The respondent’s denial letter dated November 7, 2022 states:

…..The diagnosis of whiplash, sprain and strain of multiple body parts, contusions, and pain as described in your disability certificate does not appear to be consistent with an inability to engage in substantially all of your activities.

In order to assist us in determining your eligibility to the Non-Earner benefit, we require you to attend an Examination Required by Insurer under section 44 of the SABS.….

24I find that the language of the respondent’s denial letter specifically addresses the applicant’s medical condition. It highlights the applicant’s purported injuries as listed in her disability certificate and notifies the applicant that it will be scheduling a section 44 examination. I find that this language is sufficient to meet the requirements of section 36(4)(ii) of the Schedule, and therefore find that the respondent’s denial letter is compliant with the Schedule.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

26As no benefits are payable, the applicant is not entitled to interest.

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.

28As I have found that the applicant is not entitled to any of the benefits in dispute, and there is no evidence of any other benefits being unreasonably denied or delayed, there is no basis for an award under s. 10 of Reg. 664.

ORDER

29For the reasons outlined above, I find:

i. The applicant is not entitled to NEBs;

ii. As no benefits are payable, the applicant is not entitled to interest or an award; and

iii. The application is dismissed.