Citation: Chan v. Security National Insurance Company, 2025 ONLAT 23-002958/AABS

Licence Appeal Tribunal File Number: 23-002958/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:

Hiu Tung Chan

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Matthew Frontini

APPEARANCES:

For the Applicant: Filipe Santos, Counsel

For the Respondent: James Kolumbus, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hiu Tung Chan, the applicant, was involved in an automobile accident on March 14, 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, Security National 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 and therefore subject to treatment within the $3,500 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 22, 2021 to March 14, 2023?

iii. Is the applicant entitled to $1,800.50 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 dated April 5, 2021?

iv. Is the applicant entitled to $2,460.00 for a psychology assessment, proposed by 101 Assessments Center in a treatment plan/OCF-18 dated April 22, 2021?

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

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

RESULT

3The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG. The applicant is not entitled to the disputed treatment plans. The applicant is also not entitled to a NEB, interest, or an award.

ANALYSIS

The applicant is not removed from the MIG

4I find that the applicant has not proven on a balance of probabilities that she has sustained more than a minor injury and, therefore, she is not removed from the MIG.

5Section 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. 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.”

6An 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.

7The applicant claims that she is entitled be removed from the MIG because her physical injuries place her outside the MIG. The applicant asserts that the physical injuries to her mid-back, low-back and her neck pain as well as a feeling of “tightness in her shoulders” warrant removal from the MIG. The applicant also asserts that psychological injuries including nightmares, flashbacks and anxiety also warrant removal from the MIG.

6I find that the applicant has not established that her injuries warrant removal from the MIG. The physical injuries set out in the applicant’s submissions are minor in nature as they fall within the s. 3(1) definition under the Schedule and are consistent with clinically associated sequelae of minor injuries.

7The applicant has also not established that she suffers a psychological injury. The applicant has not identified any medical evidence from a medical professional indicating that she suffers from any psychological injuries. The only evidence of psychological injury that the applicant identifies in her submissions is her self-reporting to Mackenzie Medical Rehabilitation Centre. The actual notes are illegible, do not identify who recorded the information and do not clearly identify the psychological complaints contained in the applicant’s hearing submissions. I find that that applicant’s submissions and evidence have not discharged her evidentiary burden to establish that she suffers a psychological injury that warrants removal from the MIG.

8I also place weight on the respondent’s submissions that the applicant cancelled two psychological assessments scheduled by the respondent and did not seek to reschedule the assessment. In the absence of medical evidence establishing a psychological injury as a result of the motor vehicle accident, the applicant has not established that removal from the MIG is warranted on this ground.

9As I have found that the applicant is not removed from the MIG, but neither party has confirmed whether the MIG limits have been exhausted, the applicant is entitled to treatment up to the MIG limits.

The applicant is not entitled to an NEB

10I find that the applicant has not established that she is entitled to an NEB.

11Section 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, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

12The applicant’s submissions do not argue that she meets the substantive test for an NEB. Rather, the applicant argues that the respondent’s denial is deficient and not in compliance with section 36(4) of the Schedule and therefore the applicant is entitled to NEBs from April 22, 2021 to May 5, 2021 or, in the alternative, from April 22, 2021 to March 14, 2023. The applicant’s submissions do not indicate when her Disability Certificate (“OCF-3”) was sent to the respondent, instead relying on the date of March 24, 2021, when it was completed.

13The OCF-3 states that the applicant was working at the time of the accident and suffers a substantial inability to perform the essential tasks of her employment, which is the test for entitlement to income replacement benefits. It notes that she can return to work on modified hours and/or duties and that she is working with some reported pain. The OCF-3 further notes that she also suffers a complete inability to carry on a normal life, otherwise known as the NEB test.

14The denial in question was contained in an explanation of benefits (“EOB”) that was sent to the applicant on May 5, 2021. The EOB stated that based on the information provided by the applicant in the OCF-3, the respondent had determined that the applicant was entitled to income replacement benefits. The EOB requested the applicant to provide further information so that the quantum of the income replacement benefits could be calculated. With respect to NEB, the EOB stated that because the applicant was entitled to an income replacement benefit, she was not entitled to a NEB.

15The applicant relies on Lopreiato v. Aviva General Insurance, 2023 CanLII 4453 (ON LAT), in which the Tribunal found that the respondent’s initial denial was improper because it did meet any of the requirements of s. 36(4) of the Schedule.¹ In Loprieiato, the Tribunal ordered the payment of the NEB up until the date of a second denial that complied with s. 36(4) of the Schedule.

16The respondent argues that the denial was not improper and that it has complied with the statutory requirements. The respondent also notes that the completed OCF-3, dated March 24, 2021, was not received until April 30, 2021.²

17I find that the respondent has complied with the statutory requirements of s. 36(4) and that the applicant is not entitled to an NEB. First, the 10-day statutory timeline for the respondent to respond to an insured seeking an NEB only starts once the insurer receives a completed application and OCF-3. The evidence demonstrates that the respondent received the completed OCF-3 on April 30, 2021. Accordingly, the respondent’s denial of May 5, 2021 was within the 10-day statutory timeline prescribed by s. 36(4) of the Schedule.

18I also find that the respondent’s denial complied with s. 36(4). Lopreiato is distinguishable from this case. In Lopreiato, the insurer’s first EOB did not deny the NEBs, or provide reasons for a denial because it was not denying the benefit. Rather, the EOB requested further information and required that the OCF-3 be completed by a specific healthcare professional. As such, this first EOB did not provide a medical reason or any other reason for the denial of the NEB - in contravention of s. 36(4).

19In this case, the respondent provided its reason for denying the applicant’s entitlement to an NEB; the respondent had determined that the applicant qualified for an IRB. This is consistent with s. 12(1)1 of the Schedule, which provides:

The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

(emphasis added)

20The Tribunal considered this exact issue in Ekefre v TD Home and Auto Insurance Company, 2024 CanLII 115416 (ON LAT) (“Ekefre”). In that case, the applicant also sought payment of an NEB on the sole basis that the respondent’s denial was improper and not in compliance with s. 36(4) of the Schedule. That denial was identical to this case: the applicant was not eligible for an NEB because he was eligible for an IRB. As here, the applicant in Ekefre did not argue that they met the substantive test for entitlement to an NEB. I find the reasoning in Ekefre persuasive, and I find that the denial was not contrary to s. 36(4) of the Schedule.

21I note that the OCF-3 states that the applicant suffered both a substantial inability to engage in his pre-accident employment and a complete inability to carry on his pre-accident activities. Therefore, the respondent was required to address entitlement to both benefits which it did. The respondent’s EOB explained that it had determined that the applicant was entitled to an income replacement benefit and therefore was not entitled to a NEB. Since the applicant was employed at the time of the accident, this was the correct determination.

22Finally, I am not persuaded by the applicant’s argument that because the respondent’s determination was legally incorrect, the respondent’s denial was deficient. The applicant’s basis for this argument is that the respondent was incorrect in its determination that the applicant qualified for an income replacement benefit. The applicant’s argument is to the effect that a legally incorrect reason for a denial is the same as not providing a reason at all, and thereby renders the denial deficient and contrary to s. 36(4) of the Schedule.

23The Court of Appeal, in Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA), held that a denial must provide a reason for the refusal, however the reason does not need to be legally correct.

24The EOB stated that the applicant was not entitled to a NEB because she was entitled to an income replacement benefit. As a reason was provided, regardless of it’s alleged legal correctness, I find that this does not mean that the respondent is non-compliant with s. 36(4) of the Schedule. A denial does not need to be legally correct.

25Accordingly, I find that the respondent’s denial contained in the EOB complied with s. 36(4) and the applicant has not established that she is entitled to a NEB.

The applicant is not entitled to the disputed treatment plans

26As I have found that the applicant is not removed from the MIG, but neither party has confirmed whether the MIG limits have been exhausted, the applicant is entitled to treatment up to the MIG limits.

Interest

27As I have found that the applicant is not entitled to any of the disputed treatment plans or an NEB, she is not entitled to interest in respect of these treatment plans or an NEB.

Award

28I find that the applicant has not established that she is entitled to an award.

29The 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.

30The applicant’s written submissions do not point to any specific facts or make any specific arguments as to why an award is warranted in this application. Furthermore, I have found that the applicant is not entitled to any of the disputed benefits. I find that the applicant has not established that she is entitled to an award.

ORDER

31I find that:

a. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

b. Given the applicant’s is subject to the MIG, a determination of whether the disputed treatment plans are reasonable and necessary is not required;

c. The applicant is not entitled to the disputed treatment plans;

d. The applicant is not entitled to an NEB;

e. the applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule;

f. The applicant is not entitled to an award under s. 10 of O. Reg 664; and

g. The application is dismissed.

Footnotes

1. 1Lopreiato v. Aviva General Insurance, 2023 ONLAT 20-015088/AABS at para 17: In its explanation of benefits letter dated July 12, 2018 regarding NEBs, Aviva indicated that A.L. may be entitled to a NEB, that it required an OCF-3 to be completed by the treating practitioner (Aviva’s emphasis) and an OCF-5 (for disclosure of health information).
2. 2Despite being dated March 24, 2021, the fax confirmation information indicates that it was not sent to the respondent until April 30, 2021.