Licence Appeal Tribunal

Citation: Chen v. TD General Insurance Company, 2025 CanLII 58803

Licence Appeal Tribunal File Number: 23-011167/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:

Jian Chen

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Dina Mejalli-Willis

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Kateryna Borodenko, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jian Chen, the applicant, was involved in an automobile accident on July 12, 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.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing for a treatment plan/OCF-18 (“plan”) for physiotherapy services dated May 16, 2023, because the applicant failed to attend an insurer’s examination under section 44 of the Schedule?

SUBSTANTIVE ISSUES

3The substantive issues to be decided are:

i. Is the applicant entitled to $1,765.86 for physiotherapy services, proposed by Easy Health Centre in a plan dated May 16, 2023?

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

4With respect to the preliminary issue, I find that:

i. The applicant is entitled to proceed to a hearing for the plan for physiotherapy services dated May 16, 2023.

5With respect to the substantive issues, I find that:

i. The applicant is not entitled to the plan for physiotherapy services dated May 16, 2023, interest or an award under Reg. 664.

6The application is dismissed.

ANALYSIS

Preliminary Issue

Is the applicant statue-barred from proceeding to the Tribunal?

7I find that the applicant is not barred from proceeding with the physiotherapy plan dated May 16, 2023, because of non-compliance with section 44 of the Schedule.

8Section 44(1) of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an insurer examination. This section stipulates that this must not be done more often than is “reasonably necessary”.

9Section 44(9)(2)(iii) of the Schedule requires an insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.

10The requirements for a Notice of Examination (“NOE”) are set out in section 44(5) of the Schedule:

If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

(a) the medical and any other reasons for the examination;

(b) whether the attendance of the insured person is required at the examination;

(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

11A NOE that is compliant with section 44(5)(a) of the Schedule should provide specific details about the insured’s condition forming the basis for the insurer’s decision, as well as identify information about the insured’s condition that the insurer doesn’t have but that it requires. The notice should be adequate to allow an unsophisticated person to understand the decision and make an informed decision in response. See, e.g., Hedley v. Aviva, 2019 ONSC 5318 (Div. Ct.); B.H. v. Aviva, 2018 CanLII 84051 (ON LAT); and M.B. v. Aviva, 2017 CanLII 87150 (ON LAT).

12Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.

13These provisions of the Schedule make it clear that the applicant has a duty to participate in each insurer examination that is reasonably necessary and for which there is a compliant notice.

Parties’ positions

14The respondent states that it provided NOEs by letters dated May 25 and 31, 2023 but that the applicant did not attend the insurer examination that was scheduled on June 22, 2023, despite that the applicant’s counsel confirmed his attendance by way of correspondence dated June 16, 2023. The respondent further submits that because the applicant did not attend, and did not give an explanation for his absence, the applicant is prohibited from applying to the Tribunal.

15The applicant does not dispute that he did not attend the scheduled insurer examination on June 22, 2023. The applicant further submits that he is prepared to attend a rescheduled insurer examination but that the insurer has not provided notice of a rescheduled examination.

16I find that the respondent’s NOEs are not in compliance with section 44(5)(a) of the Schedule and therefore the applicant is not statute-barred from proceeding to a hearing.

17The Schedule provides that the applicant must participate in an insurer examination for which there is a compliant notice. Therefore, I must determine whether the NOEs comply with section 44(5) of the Schedule before the respondent can rely on such notices as a basis to seek a statute bar under section 55.

18Based on the evidence before me, I find that the NOEs are not compliant with the requirements of section 44(5)(a). The respondent’s NOE dated May 25, 2023, does not provide any details about the insured’s condition nor does it point to any specific medical documentation, and the relevant points therein, to support the basis for the respondent’s decision to deny the treatment plan and seek an insurer examination. I further find that the respondent’s subsequent letter of May 31, 2023, did not cure this deficiency.

19I find that the reasons that were provided in the NOE dated May 25, 2023 were vague and generic in that it simply states that “[b]ased on the clinical notes and records received on file as well as the medical documentation received to date, we are unable to determine if the treatment requested is reasonable and necessary based on the injuries sustained in the motor vehicle accident.” This reason is not specific to the applicant or the applicant’s condition.

20Therefore, I find that the respondent’s letters of May 25 and 31, 2023, would leave an unsophisticated person wondering what it is about their condition that formed the basis for the insurer’s denial. Given that the notices do not comply with section 44(5)(a) of the Schedule, the respondent cannot rely on the remedy available in section 55 to bar the applicant’s plan for physiotherapy services dated May 16, 2023, from proceeding before the Tribunal.

21Accordingly, the applicant is not barred from proceeding to a hearing for the plan for physiotherapy services dated May 16, 2023.

Substantive Issues

22To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

Is the applicant entitled to the plan for physiotherapy services?

23I find that the applicant is not entitled to physiotherapy services proposed by Easy Health Centre in the amount of $1,765.86 because the applicant has not demonstrated, on a balance of probabilities, that such plan is reasonable and necessary.

24The May 16, 2023, plan was completed by Hadi Fateh Nemati, Physiotherapist at Easy Health Centre and sought 7 sessions of physical rehabilitation, acupuncture and massage therapy each as well as documentation. Mr. Nemati described the applicant’s limitations to include range of motion deficiencies and associated pain in the regions of the cervical, thoracic and lumbar spine impairing the applicant’s ability to grip, lift, bend and perform certain flexion and adduction/abduction. The goals of the plan were to reduce pain, increase strength and range of motion, and a return to activities of normal living.

25The applicant refers to the insurer examination report of Dr. Ida Cavaliere, Physical Medicine and Rehabilitation Specialist dated January 5, 2023, as support for this plan. Dr. Cavaliere diagnosed the applicant with myofascial pain syndrome of the cervical and lumbar paraspinals and bilateral periscapular musculature.

26The respondent submits that Dr. Cavaliere found the applicant’s injuries to be minor in nature, that the applicant reported to be independent with respect to personal care and housekeeping/maintenance, and that he returned to work full hours and duties. The respondent points to the section 25 Attendant Care Needs Assessment of Raymond Wong, dated March 10, 2023, to submit that the applicant’s reported physical abilities subsequently changed but that there is no independent documentation to support these changes as the clinical notes and records (“CNRs”) of the applicant’s General Practitioner, Dr. Ing Je Chen, do not reference the subject accident or any resulting physical injuries.

27I find that the medical evidence does not support a finding that the treatment plan is reasonable and necessary because the reporting by the applicant of his injuries, limitations and need for treatment is inconsistent.

28I find that when Dr. Cavaliere assessed the applicant for the insurer on December 20, 2022, six months post-accident and before the submission of this plan, the applicant reported a 40-50% improvement as well as independence with his care, mobility, and housekeeping/maintenance at reduced frequency, slower pace and taking breaks with pain. The applicant also reported that he saw Dr. Chen within days of the collision and that Dr. Chen conducted a physical examination and recommended that the applicant initiate physiotherapy.

29By or around March 10, 2023, the applicant was now reporting a significant increase in symptomology and limitations to Raymond Wong. The applicant reported that he was unable to prepare or cook meals and to wash dishes due to agonizing pain in his lower back, as well as decreased mobility/stability, standing tolerance, lower back range of motion, feelings of fatigue and the onset of headache/dizziness symptoms. The applicant also reported that he is unable to clean the bathroom after use due to pain in his neck, lower back and left/right shoulders and is dependent on his wife to provide assistance with bedroom clean-up and changing linens due to pain in his neck, lower back and left/right shoulders.

30Despite such reporting, I find that the preponderance of medical evidence does not corroborate the applicant’s reported accident caused injuries, symptoms, limitations, and the worsening of same. Of note, the CNRs of Dr. Chen reference at least 7 attendances by the applicant with his physician in the aftermath of the accident. The accident is not mentioned at all in any of these 7 entries. There is also no mention of Dr. Chen conducting a physical examination of the applicant or a recommendation to initiate physiotherapy, as the applicant reported to Dr. Cavaliere. In fact, none of the injuries, symptoms or limitations that the applicant states he has suffered as a result of this accident are mentioned at all in the CNRs of Dr. Chen.

31For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that the plan for physiotherapy services dated May 16, 2023 is reasonable and necessary.

Interest

32As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

Award

33The applicant sought an award under section 10 of Reg. 664. The Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

34As no benefits were unreasonably withheld or delayed, no award is payable.

ORDER

35With respect to the preliminary issue, I find that:

i. The applicant is not barred from proceeding to the Tribunal with the plan for physiotherapy services dated May 16, 2023, in the amount of $1,765.86 under section 55(1)2 of the Schedule.

36With respect to the substantive issues, I find that:

i. The applicant is not entitled to the plan for physiotherapy services dated May 16, 2023, in the amount of $1,765.86 nor interest.

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

37The application is dismissed.