Liao v. Pembridge Insurance Company, 2025 CanLII 522

Citation: Liao v. Pembridge Insurance Company, 2025 ONLAT 22-013705/AABS

Licence Appeal Tribunal File Number: 22-013705/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:

Jing Chun Liao

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Aleah H. Thomas, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Jing Chun Liao, the applicant, was involved in an automobile accident on July 7, 2021, 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 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 $112.81 ($1,300.00 less $1,187.19 approved) for a chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OFC-18 (“plan") dated September 29, 2021?

iii. Is the applicant entitled to $4,709.56 for physiotherapy services proposed by Total Recovery Rehab Centre in a plan dated November 12, 2021?

iv. Is the applicant entitled to $2,200.00 for psychological assessment proposed by Somatic assessment & Treatment Clinic in a plan dated July 28, 2021?

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

4As the MIG limits have been exhausted, it is not necessary to consider whether the plans for chiropractic services, physiotherapy services, and a psychological assessment are reasonable and necessary. As a result, there is no entitlement to interest or an award.

5The respondent’s denial of treatment plan dated July 28, 2021, 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.

ANALYSIS

Applicability of the MIG

The applicant has not demonstrated that she suffers from accident-related injuries that warrant removal from the MIG

6Section 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.”

7An 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.

8The applicant submits that she should be removed from the MIG based on the following accident-related physical and psychological injuries:

a. her diagnosis of chronic pain, and.

b. her psychological injuries.

a) Chronic pain

9The applicant has not demonstrated on a balance of probabilities that her accident-related injuries fall outside the MIG on the basis of chronic pain.

10The applicant seeks removal from the MIG on the basis of her chronic pain and functional impairments. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Kenny Zhang, family physician, Mackenzie Health hospital records and the treatment plans in dispute.

11The applicant relies on the Mackenzie Health hospital records and the report dated July 13, 2021, by Dr. Stephen Flindall, emergency specialist. The applicant points to medical evidence which indicates that she sustained “minor injuries” as a result of the accident. Dr. Flindall diagnosed the applicant with a sprain of the right sternoclavicular joint after obtaining a radiological examination which confirmed the absence of a dislocation. The applicant also relies on the CNRs of Dr. Zhang which indicate the applicant’s neck and back issues resolved by July 16, 2021, and the applicant did not mention her right arm, clavicle, and sternum after that date.

12The applicant also relies on the disputed treatment plans; however, I find that the plans include contradictory medical evidence from her treating clinic, Total Recovery Rehab Centre, regarding the extent of her accident-related injuries. I place limited weight on the medical evidence contained in the treatment plans. Despite Dr. Flindall’s diagnosis that there is no shoulder dislocation with intact range of motion, Dr. Georgia Palantzas, chiropractor, and Ahmed Afifi, physiotherapist, lists the applicant’s injuries to include dislocation of the sternoclavicular joint and shoulder girdle. Dr. Palantzas further indicates the goals of treatment are to increase range of motion and return the applicant to her pre-accident work activities, which also contradicts the Application for Accident Benefits (OCF-1) dated July 8, 2021, in which the applicant indicates she returned to work.

13While it is not binding on the Tribunal to follow the American Medical Association’s Guides (the “Guides”), the criteria set out in the Guides can be a useful tool in assessing an applicant’s claim for chronic pain. The Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse or family;

iii. Secondary physical deconditioning due to disuse and/or fear avoidance of physician activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contracts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours.

14Although the applicant submits that Dr. Palantzas indicates in the disputed plan dated September 29, 2021, that the applicant has difficulty standing, sitting, walking and lifting, there are no submissions to explain her pre-accident activities and changes in her activity level after the accident. In addition, the applicant has produced sparse CNRs of her treating physician which do not mention any complaints of chronic pain with functional limitations as a result of the accident.

15In response, the respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent submits that in an Insurer’s Examination (“IE”) report dated March 28, 2022, Dr. Alborz Oshidari, physiatrist, found that the applicant sustained minor injuries to her neck, shoulder and back as a result of the accident. The applicant reported to Dr. Oshidari that her symptoms have improved, she is independent in her activities of daily living, and she does not take any medication for pain.

16The respondent submits that the applicant has not provided medical documentation in support of a claim for chronic pain with functional impairment to warrant removal from the MIG, and I agree.

17I find that the applicant has not proven on the balance of probabilities that she suffers from accident-related chronic pain with functional impairment warranting removal from the MIG. The evidence suggests that the applicant’s functional abilities are inconsistent with chronic pain with functional impairment. For example, Dr. Zhang indicates the applicant’s neck and back issues have resolved and the applicant reported that she has returned to all her pre-accident activities.

b) Psychological impairments

18I 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.

19The applicant submits that she should be removed from the MIG on account of her psychological impairment. The applicant relies on the pre-screen report dated July 12, 2021, by Mandy Fang, social worker, which indicates the applicant self-reported poor sleep, anxiety, poor mood and forgetfulness. The applicant also reported to Mandy Fang that she dislikes driving and she feels frustrated, irritable, and depressed. The applicant does not refer to any notes from her treating physicians regarding a psychological impairment as a result of the accident. The applicant also points to the treatment plans completed by Dr. Palantzus, and Mr. Afifi, as medical evidence in support of her psychological impairment. However, neither Dr. Palantzus nor Mr. Afifi are qualified to make a psychological diagnosis and Dr. Zhang notes on August 23, 2021, that the applicant has no need for a psychologist.

20The respondent submits that, although the applicant may have minor psychological sequelae after the accident, there is no evidence of a specific phobia or psychological impairment. The respondent relies on the report of Dr. Oshidari in which the applicant reported that she obtained her drivers’ licence after the accident.

21I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of a psychological impairment because the medical evidence suggests that she did not suffer a psychological impairment as a result of the accident. Although Dr. Zhang mentions some anxiety associated with drinking coffee and driving, the applicant obtained a driver’s licence after the accident. In addition, Dr. Zhang indicates there is no need for a psychologist.

22Overall, I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of any consistent findings in support of a chronic pain with functional impairment or psychological impairment.

23Since the applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, and the MIG limits are exhausted, it is not necessary to consider whether the plans are reasonable and necessary.

Section 38(8) of the Schedule

24Section 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.

25If 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.

26The 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 28, 2021

27The applicant argues that the plan dated July 28, 2021, 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 October 19, 2021, denying the benefits, within 10 business days of receiving the plan on October 19, 2021.

28The applicant submits that the respondent’s denial was generally improper without providing particulars regarding this plan. I find that the October 19, 2021, was a valid denial letter. It indicates that the respondent had not received any compelling medical evidence of a psychological impairment including any clinical notes and records to support this request for a psychological assessment. It indicates that the respondent requested specific medical documents of Dr. McDowall, the applicant’s family physician and any specialists to determine whether she sustained a psychological impairment or a pre-existing psychological condition that would prevent recovery under the MIG.

29Given that the respondent provided proper notice, I find that the applicant has not met her burden to establish entitlement to this plan.

Interest

30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant has not discharged her burden to demonstrate removal from the MIG or entitlement to the disputed plans for chiropractic services, physiotherapy services and a psychological assessment, there are no benefits owing and interest does not apply.

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. Since no benefits are payable, an award under s.10 of Reg. 664 is not warranted.

ORDER

32For 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 plans in dispute;

iii. The respondent’s denial of the OCF-18 dated July 28, 2021, was proper notice in accordance with s. 38(8) of the Schedule;

iv. Interest is not payable, and an award does not apply, and

v. The application is dismissed.