Citation: Su v. Pembridge Insurance Company, 2025 ONLAT 23-011732/AABS

Licence Appeal Tribunal File Number: 23-011732/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:

Guang Su

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Harouna Saley Sidibé

APPEARANCES:

For the Applicant: Nicholas Whelan, Paralegal

For the Respondent: Christopher Zhao, Counsel

HEARD: By way of written submissions

OVERVIEW

1Guang Su, the applicant, was involved in an automobile accident on September 1, 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 IN DISPUTE

2The preliminary issue to be decided is:

1. Is the applicant barred from proceeding to a hearing for the following benefits: non-earner benefits, psychological services, psychological assessment and translation services because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

3The substantive issues to be decided are:

1. 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 Minor Injury Guideline (“MIG”) limit?

2. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from May 11, 2022, to date and ongoing?

3. Is the applicant entitled to $2,862.48 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated September 20, 2021?

4. Is the applicant entitled to $2,152.71 for physiotherapy services, proposed by 101 Physio in a plan dated August 3, 2022?

5. Is the applicant entitled to $539.00 for translation services, proposed by 101 Assessments in a plan dated December 14, 2021?

6. Is the applicant entitled to $2,210.00 for psychological services, proposed by 101 Assessments in a plan dated January 31, 2022?

7. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan dated November 15, 2021?

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

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

RESULT

4For the reasons that follow, I find that:

1. The applicant is not barred from proceeding to a hearing for the following benefits: non-earner benefits, psychological services, psychological assessment and translation services.

2. The applicant’s injuries are predominantly minor, and thus, the MIG monetary limit applies.

3. The applicant is not entitled to a non-earner benefit.

4. As the applicant is in the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.

5. The applicant is not entitled to an interest or an award.

ANALYSIS

PRELIMINARY ISSUES

5The applicant is not barred from proceeding to a hearing for the following benefits: non-earner benefits (“NEB”), psychological services, psychological assessment, and translation services.

6Section 44(1) of the Schedule permits an insurer to require an insured person to attend an examination by one or more regulated health professionals or vocational rehabilitation experts, but only if the examination is “reasonably necessary” to determine entitlement to a benefit.

7Section 44(5) of the Schedule requires the insurer to provide a Notice of Examination (“NOE”) that includes: the medical reasons and any other reasons for the examination, whether the applicant’s attendance is required for the examination, the names and titles of the assessors, and the date, time, and location of the examination.

8Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if they fail to attend an examination required under section 44, unless permitted under section 55(2). The onus is on the applicant to provide a reasonable explanation for non-attendance.

9The respondent argues that the applicant is precluded from proceeding to a hearing regarding the NEB, psychological services, and psychological assessment and translation services due to failure to attend an insurer examination (“IE”) scheduled under section 44.

10I must first determine whether the respondent has demonstrated a breach of section 44. This requires showing that a compliant NOE was issued under section 44(5), and that the IE was “reasonably necessary” under section 44(1).

11The respondent asserts that it provided a compliant NOE on February 14, 2022, and rescheduled the IE to August 9, 2022. However, the applicant’s counsel raised concerns about the absence of a Cantonese interpreter, which was first communicated on March 4, 2022, and reiterated in correspondence dated August 3 and 4, 2022. The applicant’s counsel also indicated that the applicant would not attend the IE until proper notice and interpretation were guaranteed.

12I find that the NOE issued to the applicant complies with section 44. It was provided in writing, stating that examinations are scheduled in accordance with section 44, and informs the applicant of their obligation to attend and cooperate, warning of consequences such as benefit suspension. The NOE references and includes the “Notice of Examination by Insurer” forms, which provide details such as the examination type, examiner, date, time, and location, thereby meeting the procedural requirements of section 44(5).

13While the respondent rescheduled the examination, it did not confirm interpreter arrangements, despite repeated written requests. The applicant’s counsel followed up again on January 12, April 26, and May 28, 2024, requesting rescheduling with appropriate interpretation. The respondent acknowledged these requests, but it did not confirm interpreter arrangements.

1I find that the respondent has not shown it made reasonable efforts to schedule the IE at a day, time, and place that were convenient for the applicant, as required under section 44(9)(2)(i). The Schedule clearly requires the insurer to make reasonable efforts to accommodate the insured person’s convenience when arranging the examination. The evidence does not demonstrate that such efforts were made in this case, as an interpreter was not hired.

14Therefore, I am not convinced that the IE was appropriately scheduled in accordance with section 44. Without demonstrating a breach, section 55(1)2 is not applicable.

15Even if a breach had been established, I would find, under section 55(2), that the applicant provided a reasonable explanation for non-attendance. The applicant’s absence was due to the lack of interpretation services, which hindered meaningful participation. Additionally, the respondent did not demonstrate any prejudice resulting from the missed IE.

16Accordingly, the applicant is not barred from proceeding with the substantive issues.

SUBSTANTIVE ISSUES

Are the applicant’s injuries predominantly minor?

17I find the applicant’s impairments are predominantly minor; thus, the MIG applies.

18Section 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.”

19An 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.

20The applicant submits that the injuries and impairments sustained in the subject accident exceed those of a “minor injury”, and he should, therefore, be removed from the MIG. While the applicant does not explicitly list the grounds for removal, it appears he is relying on chronic pain and a psychological impairment as the basis for his request. Furthermore, the disputed treatment plans are asserted to be reasonable and necessary to aid in his recovery.

21I find that the applicant has not demonstrated, on a balance of probabilities, that he has sustained either chronic pain or a psychological impairment that warrants removal from the MIG.

a) The applicant has not sustained a chronic pain that warrants removal from the MIG

22The Tribunal has determined that chronic pain is established when there is evidence of ongoing pain with a functional impairment.

23To support his claim of chronic pain, the applicant relies on a cervical spine x-ray showing mild height loss at C6-C7, along with records from Toronto Western Hospital prescribing Naproxen. He argues that these findings go beyond a simple "sprain/strain” injury and justify his removal from the MIG. However, I note that the applicant has not provided compelling evidence of functional impairment caused by these conditions, which weakens his case for removal from the MIG based on chronic pain.

24The respondent relies on Dr. Ida Cavaliere’s physiatry assessment, dated March 17, 2022, which found soft-tissue injuries expected to resolve in three to six months and classified the applicant within the MIG. The respondent notes minimal, post-accident medical visits and an absence of prescription medications, submitting that the applicant has not met the onus to exit the MIG.

25I find that the applicant has not demonstrated that he sustained chronic pain that would warrant his removal from the MIG, as he has not directed me to any recent clinical notes and records (“CNRs”) regarding possible ongoing pain.

26Firstly, the CNRs from Toronto Western Hospital, dated September 1, 2021, diagnosed the applicant with neck and shoulder strain and recommended the use of ice and heat massage. This diagnosis falls within the definition of a “minor injury”.

27Secondly, the applicant underwent a cervical spine X-ray on September 1, 2021. The results showed no acute fracture or malalignment in the cervical spine, and the prevertebral soft tissue contour appeared normal. However, the X-ray raised concerns about a mild decrease in height of the C6 and possibly C5 vertebral segments, as well as mild widening of the C6-C7 interspinous distance. The medical practitioner questioned whether the injury was caused by a previous history of cervical trauma. The diagnosis was not associated with the accident.

28Thirdly, the ambulatory nursing records, dated September 1, 2021, indicated that the applicant’s neck pain was rated at 4/10, with no swelling or deformity present, and the range of motion was normal at the musculoskeletal level. The same document noted that the applicant appeared to be generally well.

29In contrast, Dr. Cavaliere, a physiatrist, conducted an in-person assessment under section 44 on March 17, 2022. During the assessment, the applicant reported being advised to rest and was not prescribed pain medications. It was recommended that he take Advil or Tylenol as needed for pain. The applicant also reported during the assessment that a physical examination had been performed during a follow-up visit with his family doctor. He was not referred for additional diagnostic testing and was advised to continue resting and undergoing physiotherapy. The applicant has not maintained follow-up with his family physician.

30Dr. Cavaliere concludes that, after examining the applicant, he has sustained soft tissue pain in the right posterior neck and right periscapular region due to the accident, with no evidence of intrinsic shoulder pathology. She also found it is probable that he is experiencing soft tissue pain in the lumbosacral spine; however, the physical examination results were benign.

31I place greater emphasis on Dr. Cavaliere’s report, as it is the only medical expert evaluation of the applicant’s physical condition. Dr. Cavaliere conducted objective testing and found no abnormalities, be it range of motion, neurological, or orthopedic. These findings outweigh the X-ray notation of mild height reduction, which lacks clinical correlation to the accident.

32Accordingly, I conclude, on the balance of probabilities, that the applicant has not sustained a chronic pain that justifies a removal from the MIG.

b) The applicant has not sustained a psychological impairment that warrants removal from the MIG

33To support the existence of an accident-related psychological impairment, the applicant relies on Dr. Konstantinos Papazoglou, psychologist, who conducted a telephone assessment, dated December 10, 2021, which diagnosed adjustment disorder with anxiety, depressed mood, and specific isolated phobia of driver/passenger. He argues that these conditions warrant removal from the MIG.

34The respondent asserts that there is no psychological impairment resulting from the accident and contends that ongoing treatment is unnecessary. The applicant is required to demonstrate a psychological impairment that is “separate and distinct” and not a sequelae. Furthermore, the absence of an IE opinion does not affect the MIG issue.

35Dr. Papazoglou's opinion is the only evaluation of the applicant’s psychological state. However, I place less weight on Dr. Papazoglou’s report because it lacks psychometric testing and relies primarily on the applicant’s self-reports. Although Dr. Papazoglou noted that the psychological issue “appears to have developed” as a consequence of the accident, this statement is speculative and not supported by objective clinical measures. The report also does not clearly establish a causal connection between the psychological symptoms and the accident.

36Furthermore, there are no corroborating records from the applicant’s family doctor regarding any psychological concerns, and the applicant did not report such complaints to any of his treating practitioners. This lack of contemporaneous documentation and objective assessment undermines the reliability of Dr. Papazoglou’s conclusions.

37Weighing the totality of the evidence, I find the applicant has not proven that his psychological symptoms fall outside the definition of a minor injury.

38Consequently, on a balance of probabilities, I find the applicant’s impairments are subject to the MIG.

Is the applicant entitled to the disputed treatment plans?

39Since I have determined that the applicant has not shown that his accident-related impairments require treatment beyond the MIG limits, it is unnecessary for me to assess the reasonableness and necessity of the disputed treatment plans.

40While the applicant raises concerns regarding the sufficiency of the denial notices, I do not find that the insurer failed to comply with section 38(8) of the Schedule. In particular, the insurer’s notices dated October 4, 2021, November 29, 2021, December 23, 2021, February 20, 2022, and August 17, 2022, clearly identified the medical and other reasons for denying the treatment plans, as required by the section. The notices were provided within the prescribed time frame and included sufficient detail to allow the applicant to understand the basis for the denial and to respond meaningfully. I have considered the adequacy of the insurer’s explanation and find that it meets the statutory requirements. Therefore, the remedial provisions under section 38(11), which prohibit the insurer from relying on the MIG and require payment for the treatment plan during a specified period, do not apply. Consequently, the applicant must still demonstrate that the disputed treatment plans are reasonable and necessary, which has not been shown in this case.

Is the applicant entitled to an NEB?

41I find that the applicant has not established that he is entitled to an NEB.

42The applicant’s own statements to the assessors indicate minimal disruption, with independence in personal care, mobility, and driving, as well as a near-immediate return to work. A note from Toronto Western Hospital, dated September 1, 2021, confirms a 7- to 10-day absence from work.

43Section 12(1) of the Schedule 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 for Ontario 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.

44Section 36(4) of the Schedule requires that, within 10 business days of receiving a completed application and disability certificate, the insurer must either pay the benefit, provide a notice explaining the medical and other reasons for denial, or request additional information.

45The applicant argues that the respondent failed to provide sufficient medical and other reasons in its denial, and, therefore, the NEB should be considered payable.

46I find that the evidence on file includes denial letters dated February 14, 2022, and July 18, 2022, referencing the respondent’s reliance on the OCF-3 and the applicant’s return to work shortly after the accident. They also reference medical documentation and the applicant’s functional status. I conclude that the denial meets the minimum threshold required under section 36(4), and the applicant has not established a breach.

47The applicant also relies on the OCF-3, dated October 5, 2021, which supports the NEB and indicates that he can return to modified duties, as noted in Dr. Papazoglou’s report.

48The respondent notes that the applicant was employed as the owner/operator of a restaurant, missed only one week of work, and resumed regular duties. Both the OCF-3 and the IE evidence indicate that he was employed for 26 of the 52 weeks preceding the accident, and he continued to drive and manage daily tasks.

49I find that the applicant is not entitled to the NEB because he did not prove, on the balance of probabilities, that he suffers from a complete inability to carry on a normal life.

50First, the OCF-3 states that he can return to work as tolerated and attempt tasks with modifications. It also notes that his physical capacity and active lifestyle are hindered by pain and apprehension. However, there are no corroborating medical records to support a complete inability to engage in substantially all pre-accident activities.

51Second, I find that Dr. Papazoglou’s report does not support the applicant’s entitlement to the NEB. The report provides a compelling comparison of the applicant’s pre- and post-accident activity levels, highlighting that while the applicant previously engaged in physically demanding tasks, such as standing, lifting, bending, cooking, cleaning, and grocery shopping as part of his work as a self-employed restaurant owner, he continues to maintain independence in self-care following the accident. Although he reports increased difficulty and reliance on family support for some tasks, the evidence does not establish a complete inability to engage in substantially all of his pre-accident activities, which is the threshold for NEB entitlement.

52The report lacks objective clinical measures and does not establish that the impairments fall outside the definition of a “minor injury” under the MIG. As such, I did not find it compelling for the purposes of MIG removal. Conversely, for the NEB analysis, the report was more relevant, as it offered a comparative account of the applicant’s pre- and post-accident functioning, which is central to the NEB test. Nonetheless, even in that context, the evidence did not rise to the level of demonstrating a complete inability to carry on a normal life.

53Third, Dr. Cavaliere’s report provides a comprehensive overview of the applicant’s post-accident functional capacity and daily activities. Notably, the applicant resumed his pre-accident employment within a week of the accident, indicating a relatively swift return to his regular work routine. However, his work duties have been significantly modified to accommodate ongoing physical limitations. Specifically, he no longer engages in heavy lifting; instead, he delegates such tasks to hired staff responsible for deliveries. While he occasionally attempts to lift heavier items, these efforts exacerbate his neck and right shoulder pain, indicating persistent physical impairment.

54Despite these limitations, the applicant remains actively involved in the operation of his restaurant. His current role emphasizes non-physical responsibilities, including administrative tasks, customer service, and managerial oversight. Notably, he retains control over his work schedule, allowing him to manage his symptoms more effectively. This level of continued engagement in both professional and social spheres suggests that, while his activities have been altered, he has not sustained a complete inability to carry on a normal life, as he has not been continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident. There is no medical or observational evidence indicating a total inability to participate in everyday activities, which is a key consideration in assessing the extent of his functional impairment.

55I find that the applicant did not demonstrate a complete inability to lead a normal life.

56Therefore, I conclude, on a balance of probabilities, that the applicant is not entitled to a NEB.

Interest

57Interest applies to the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, interest does not apply.

Award

58The applicant seeks an award under section 10 of Regulation 664. Under this section, 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. However, since there are no benefits due to the applicant, there is no basis for an award under Section 10.

ORDER

59For the above reasons, it is ordered that:

i. The applicant is not barred from proceeding to a hearing for the following benefits: non-earner benefits, psychological services, psychological assessment and translation services.

ii. The applicant’s injuries are predominantly minor, and thus, the MIG monetary limit applies.

iii. The applicant is not entitled to an NEB.

iv. As the applicant is in the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.

v. The applicant is not entitled to an interest or an award.

vi. The application is dismissed.

Released: June 26, 2025

Harouna Saley Sidibé Adjudicator