Choi v. Economical Mutual Insurance Company, 2025 CanLII 72409

Choi v. Economical Mutual Insurance Company

Citation: Choi v. Economical Mutual Insurance Company, 2025 ONLAT 23-007592/AABS

Licence Appeal Tribunal File Number: 23-007592/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:

Rebecca Choi

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Brent Vallis, Counsel

For the Respondent: Sunjay Mistry, Paralegal

HEARD: By Way of Written Submissions

OVERVIEW

1Rebecca Choi, the applicant, was involved in an automobile accident on August 25, 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, Economical Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant seeks removal from the Minor Injury Guideline (“MIG”) based on her knee pain, chronic pain or psychological impairment. The applicant also seeks payment of the treatment plans in dispute because of the respondent’s deficient notices under s. 38 of the Schedule.

ISSUES

3The 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 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from September 22, 2022 to date and ongoing?

iii. Is the applicant entitled to $2,351,86 for physiotherapy services, proposed by HealthMax Physiotherapy Scarborough in a treatment plan/OCF-18 (“plan”) dated March 23, 2023?

iv. Is the applicant entitled to $2,944.19 for chiropractic and massage services, proposed by HealthMax Physiotherapy Scarborough in a plan dated June 2, 2023?

v. Is the applicant entitled to $1,369.19 for chiropractic and physiotherapy services, proposed by HealthMax Physiotherapy Scarborough in a plan dated October 26, 2023?

vi. Is the applicant entitled to $107.00 for a wheelchair and walker, submitted on a claim form (OCF-6) dated March 7, 2023?

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

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

RESULT

4The 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.

5The applicant is entitled to treatment up to the MIG limits and it is not necessary to consider whether the disputed plans and expenses are reasonable and necessary.

6The respondent’s denial of treatment plans in the amounts of $2,351.86, $2,944.19, and $1,369.19 were proper notice in accordance with s.38 (8) of the Schedule and therefore, those treatment plans are not payable pursuant to s.38(11) of the Schedule.

7The applicant is not entitled to a non-earner benefit, interest or an award.

ANALYSIS

Applicability of the MIG

8I find that the applicant has not met her onus to prove that her accident-related impairments warrant removal from the MIG.

9The applicant submits that she suffers from serious accident-related physical and psychological impairments, which require her removal from the MIG.

10Section 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.”

11An 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.

12The applicant submits that she should be removed from the MIG based on the following accident-related injuries:

a. Her left knee injury;

b. Her diagnosis of chronic pain; and,

c. Her psychological impairments.

13To this end, the applicant relies on a letter dated August 8, 2023, by Dr. Karen Tsin, family physician; and a consultation report dated August 9, 2023, by Dr. Paul Wong, orthopaedic surgeon. The applicant claims that on a balance of probabilities these documents together establish that she sustained a left knee injury with chronic pain and depression as a result of the accident.

14In 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 there is a causation issue regarding the origin of the applicant’s left knee complaints. The respondent relies on the hospital records; the clinical notes and records (“CNRs”) of the applicant’s treating physicians and specialists; and the Insurer Examination (“IE”) report of Dr. Howard Platnick, general practitioner.

The applicant has not established an accident-related left knee injury to warrant removal from the MIG

15The applicant seeks removal from the MIG on the basis of her left knee injury, which required total knee replacement surgery on November 28, 2023.

16The applicant relies on a letter to the applicant’s representative, dated August 8, 2023, by Dr. Tsin stating that she developed left knee symptoms from one week after the accident. The applicant also relies on a consultation report dated August 9, 2023, by Dr. Paul Wong, orthopaedic surgeon, in which she reported difficulty walking due to left knee pain after the accident, and Dr. Wong recommended a total knee replacement. However, neither Dr. Tsin or Dr. Wong explain whether the knee surgery is accident-related, therefore, these documents carry minimal weight. I also find that the applicant did not report left knee pain to Dr. Tsin until five months after the accident.

17The applicant submits that her left knee pain started after the accident, and she refers to diagnostic imaging results dated January 19, 2023 showing osteoarthritis of the left knee with degenerative changes of the medical meniscus. I note that the ultrasound of the left knee report dated January 19, 2023, mentions previous ultrasounds of the left knee dated October 29, 2020, October 25, 2016, and June 28, 2016. I also note that Dr. Tsin indicates on January 9, 2023 that the applicant was diagnosed with osteoarthritis in both her knees in 2009.

18The respondent submits that the Scarborough Health Network - Scarborough Grace hospital records indicate the applicant did not report any left knee symptoms after the accident. The respondent further submits that the applicant did not report accident-related left knee symptoms to her doctor until January 9, 2023, nearly five months after the accident. The respondent submits that the applicant had pre-existing osteoarthritis of her knees since 2009.

19The respondent further submits that the applicant reported to Dr. Platnick that she had left knee pain before the accident. The respondent submits that there is evidence suggesting that the applicant had pre-existing conditions related to problems with her knee. The respondent submits that the applicant experienced impaired balance from excess weight, leading to falls before and after the accident on May 3, 2022, and October 4, 2023. The respondent further submits that on February 15, 2023, Dr. John Wan rheumatologist diagnosed the applicant with advanced degenerative changes in both knees, and inflammation of the collateral ligament in the left knee related to excess weight and deterioration of her knee. The respondent further submits that Dr. Wan attributes the applicant’s symptoms to repetitive strain to the knee from activities; he recommended weight loss, and he administered a cortisone injection.

20I find the applicant’s submissions that she sustained a left knee injury during the accident are contradictory in view of her report to Dr. Platnick that she struck her left knee inside the car during the accident, however, she did not report left knee pain to the hospital, or Dr. Tsin until January 2023. In addition, the radiological findings of her left knee dated January 19, 2023, indicate there had been several radiological studies of her left knee over a period of several years before the accident. However, these earlier radiological reports are not in evidence. I find that the applicant did not report knee pain until five months after the accident, and Dr. Tsin’s records indicate that the applicant was diagnosed with osteoarthritis in her knees in 2009. I am not persuaded by the evidence of Dr. Tsin and Dr. Wong that the applicant’s knee replacement is as a result of the injuries she sustained in the accident.

21Therefore, I find on a balance of probabilities that the applicant has not demonstrated that she has an accident-related left knee injury that warrants removal from the MIG.

The applicant has not established chronic pain with a functional impairment to warrant removal from the MIG

22The applicant submits that that her level of dysfunction caused by her injuries is sufficient to remove her from the MIG on the basis of chronic pain since she requires the use of a cane or walker and medication after the accident. The CNRs of the applicant’s treating physicians do not mention any complaints of chronic pain or functional limitations as a result of the accident.

23The respondent submits there is no diagnosis of chronic pain in any of the applicant’s medical records. The respondent points to the IE report of Dr. Platnick dated June 19, 2023, which indicates the applicant has the functional ability to return to her pre-accident housekeeping tasks. Dr. Platnick found that the applicant sustained soft tissue injuries as a result of the accident.

24The applicant has not directed me to any evidence or complaints of chronic pain. The applicant’s treating physician did not make a diagnosis of chronic pain or refer the applicant to a specialist. The medical evidence provided by the applicant, a letter dated August 8, 2023, by Dr. Tsin indicates that she sustained uncomplicated soft tissue injuries to her neck and left knee with no residual functional impairment.

25Therefore, I find on a balance of probabilities that the applicant has not demonstrated that she has chronic pain with a functional impairment that warrants removal from the MIG.

The applicant has not established psychological impairments to warrant removal from the MIG

26The applicant submits that she should be removed from the MIG on account of her depression. The applicant submits that she has depressed mood, she is fearful in a motor vehicle and her social contacts are reduced. The applicant does not indicate whether she has a psychological impairment to remove her from the MIG.

27The respondent submits that the applicant has not provided medical evidence of an accident-related psychological impairment or psychological treatment.

28The onus is on the applicant to provide evidence in support and I have not been directed to any medical evidence in support of her submissions that she developed depression after the accident. As a result, I find that the applicant has not demonstrated an accident-related psychological impairment to warrant her removal from the MIG.

29Since the applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the disputed plans and expenses are reasonable and necessary.

30Further, the applicant makes no submissions as to the reasonableness or necessity of the treatment plans and expenses in dispute. The applicant’s focus in her submissions is on alleged procedural errors made by the respondent and it is submitted that these procedural errors should result in finding the disputed benefits are payable.

Section 38 (8) of the Schedule

31Section 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.

32If 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.

33The Tribunal in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT), 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 March 23, 2023

34The first plan in the amount of $2,351.86, for physiotherapy services, completed by Dr. Dinna Icatar, chiropractor of HealthMax Physiotherapy Scarborough. The respondent wrote to the applicant on May 4, 2023, denying the benefits, within 10 business days of receiving the plan on April 21, 2023.

35The applicant submits that it was an improper denial as it was based only on the MIG, and so the denial lacked a specific medical reason. I find that the May 4, 2023 was a valid denial letter. It indicates that the respondent has reviewed the applicant’s hospital records and decoded OHIP summary. The respondent further stated that on review of the documents on file, the applicant’s injuries appeared to be minor and subject to the $3,500.00 limit. I accept that a “minor injury” as defined in the Schedule is a medical reason.

36Therefore, I find on a balance of probabilities that the applicant has not met her burden to establish that this plan is payable under section 38.

Sufficiency of the Respondent’s Denial of OCF-18 dated June 2, 2023

37The second plan in the amount of $2,944.19, for chiropractic and massage services by Dr. Icatar. The respondent wrote to the applicant by letter dated June 28, 2023 denying the benefits, within 10 business days of receiving the plan on June 15, 2023. The applicant submits that it was an improper denial as it was based only on the MIG, and so the denial lacked a specific medical reason. I find that the June 28, 2023 was a valid denial letter. It indicates that based on multiple IE’s, the applicant has no ongoing accident-related physical injury or impairment. The respondent further stated that the applicant’s injuries fall under the MIG limit.

38I find that the June 28, 2023 letter was a valid denial letter. It indicates that the respondent has received IE reports which do not support the applicant’s entitlement to medical and rehabilitation benefits beyond the MIG. I find the respondent’s reference to the MIG or minor injury is a valid medical reason.

Sufficiency of the Respondent’s Denial of OCF-18 dated October 26, 2023

39The next plan in the amount of $1,369.19, for chiropractic and physiotherapy services, completed by Dr. Venous Salehi, chiropractor of HealthMax Physiotherapy Scarborough. The respondent wrote to the applicant by letter dated November 24, 2023, within 10 business days of receiving the plan on November 17, 2023.

40The applicant submits that it was an improper denial based on non-specific medical conditions and the MIG. I find that the November 24, 2023 letter was a valid denial letter. It indicates that on the respondent’s review of the medical documents on file, the applicant’s injuries appear to be minor as defined in the Schedule and it was unable to determine if the recommendations on the plan are reasonable and necessary, and an insurer’s examination was scheduled in accordance with s. 44 of the Schedule.

41The respondent stated that the IE report dated June 19, 2023, by Dr. Platnick indicates that applicant reported left knee pain and osteoarthritis before the accident; she reported striking her left knee inside the car on the door, which is not consistent with a rear-end type collision; and she did not report any left knee injury to emergency responders or specialists at the hospital. The respondent further stated that Dr. Platnick concluded that the applicant sustained soft tissue type injuries in the accident, which have resolved, and her left knee symptoms are related to a pre-existing condition, which is not causally connected to the accident.

42I find that the November 24, 2023 denial is compliant since it provides a summary of medical and other reasons to explain to the applicant that her injuries fall under the MIG. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.

43Therefore, I find on a balance of probabilities that the applicant has not met her burden to establish that this plan is payable under section 38.

The applicant is not entitled to a non-earner benefit (“NEB”)

44I find that the applicant has not established entitlement to an NEB as the evidence regarding her pre- and post-accident functional abilities does not support this claim.

45Section 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.

46Section 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.”

47The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (“Heath”) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

48The applicant submits that she has suffered a complete inability to carry on a normal life due to her accident-related injuries. The applicant does not point to any medical evidence in support of her submissions that she has not returned to her activities of daily living, including shopping, housework, socializing or mobility.

49On the evidence before me, I am unable to engage in the analysis required by Heath to determine if the applicant suffers from a complete inability to carry on a normal life. The evidence in reference to the applicant’s activities of daily living, including shopping, housework, socializing and mobility does not provide any details of the applicant’s pre-accident activities or demonstrate how her participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to the applicant, how she is prevented from engaging in the activities she normally engaged in pre-accident or evidence of the frequency and time commitments of her pre-accident activities. In the absence of this information, it is not possible to compare the applicant’s pre- and post-accident capabilities with respect to the activities she ordinarily engaged in or valued.

50The respondent relies on IE report dated June 19, 2023 by Dr. Howard Platnick, general practitioner and IE report dated June 19, 2023 by Tony Jung, occupational therapist. The respondent submits that the applicant reported to Dr. Platnick and Tony Jung that she returned to her pre-accident activities of knitting classes, driving, and socializing after the accident. The respondent further submits that the applicant reported to Tony Jung that she is leaving on a cruise with her husband.

51The respondent argues that the applicant has not addressed the factors set out in Heath v. Economical Mutual Insurance, Company, 2009 ONCA 391, which include a comparison of the applicant’s activities and life circumstances before and after the accident.

52I agree with the respondent that the medical evidence does not establish that the applicant suffers from a complete inability to carry on a normal life as a result of the accident because I find this evidence does not address the elements of the legal test and I find that the applicant reported to Dr. Platnick and Tony Jung that she has returned to her hobbies, driving and social activities.

53For the reasons set out above, I find that the applicant has not established that she suffered from a complete inability to carry on a normal life as a result of the accident. As a result, I find on a balance of probabilities that the applicant has not established entitlement to NEBs.

Interest

54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have found that there are no benefits owing, interest does not apply.

Award

55The 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 there were no benefits withheld or delayed, an award under s.10 of Reg. 664 is not warranted.

ORDER

56For the reasons set out above, I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit.

ii. As the applicant is in the MIG limits, it is not necessary to consider whether the disputed plans and expenses are reasonable and necessary;

iii. The applicant is not entitled to a NEB;

iv. The respondent’s denials of the OCF-18’s dated March 23, 2023, June 2, 2023, and October 26, 2023 were proper in accordance with s. 38(8) of the Schedule;

v. Interest is not payable and the respondent is not liable to pay an award; and,

vi. The application is dismissed.