Licence Appeal Tribunal File Number: 23-009967/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:
Ruo Chen Li
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Diana Oliveira, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Ruo Chen Li, the applicant, was involved in an automobile accident on December 11, 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, 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $339.82 per week from December 20, 2022, to date and ongoing?
iii. Is the applicant entitled to $4,217.20 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated March 2, 2023?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a plan dated March 9, 2023?
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 his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, it is not necessary to consider whether the treatment plans for chiropractic services and a psychological assessment are reasonable and necessary.
4The respondent’s denials of the disputed plans, dated March 2, 2023, and March 9, 2023, were made in accordance with s.38(8) of the Schedule, and therefore, these plans are not payable pursuant to s.38(11) of the Schedule.
5The applicant is not entitled to an IRB in the amount of $339.82 per week from December 20, 2022, to date and ongoing.
6The applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
The Hubei Provincial Medical Institution record is admitted into evidence
7In its written hearing submissions, the respondent requests that the Hubei Provincial Medical Institution record dated September 4, 2024, not be considered as it was provided to the respondent after the final production deadline of June 13, 2024.
8The applicant’s record from Hubei Provincial Medical Institution is admitted into evidence, but its late disclosure will be considered when determining the weight it will be given.
9The CCRO ordered that, by no later than 90 calendar days after the case conference (i.e., March 15, 2024), the parties needed to disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing.
10The Hubei Provincial Medical Institution record is dated September 4, 2024, and the document was produced after the deadlines, however, the respondent does not indicate when the document was produced. It is unclear whether the applicant introduced it at the earliest opportunity.
11The applicant did not make any submissions regarding the timing of serving this document, or why it should be considered given the missed production deadlines. However, I am exercising my discretion and admitting the record from the Hubei Provincial Medical Institution into the hearing evidence. I am allowing the document to be admitted because the record is relevant to the applicant’s updated medical status. The respondent has not made submissions on prejudice that would result if the applicant’s document was included in the hearing record.
ANALYSIS
The applicant has not sustained accident-related injuries that warrant removal from the MIG
12I find that the applicant has not demonstrated that he suffers from accident-related chronic pain with functional impairments, nor has he demonstrated that he suffers from accident-related psychological impairments. He has not demonstrated that he sustained impairments which warrant removal from the MIG.
13Section 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.”
14An 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.
15I find that the applicant has not met his onus to prove that his accident-related impairments warrant removal from the MIG.
16The applicant submits that he should be removed from the MIG based on the following:
a. His diagnosis of chronic pain; and,
b. His psychological impairments.
a) Chronic pain
17The applicant has not demonstrated on a balance of probabilities that his accident-related injuries fall outside the MIG on the basis of chronic pain.
18The applicant seeks removal from the MIG on the basis of his chronic pain. However, to support his assertion that he suffers from chronic pain, the applicant did not provide substantive submissions on the six criteria under the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”). While not binding, the Tribunal has adopted the six criteria as a tool for assessing chronic pain claims, such as in 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 (ONLAT).
19The applicant relies on the clinical notes and records (“CNRs”) of treatment providers at UHeal Rehab Centre, and a pre-screen report dated December 15, 2022, by Dr. Sharleen McDowall, psychologist. The applicant submits that the CNRs of UHeal Rehab Centre indicate that he sustained sprain and strain type injuries to his neck, shoulders and back, with persistent pain for almost two years after the accident. The applicant submits that his symptoms restrict his ability to work and complete housekeeping tasks.
20The respondent submits that the applicant did not seek medical attention from his doctors at MediOne Physicians until July 20, 2023, which is over seven months after the accident, and the applicant does not mention any accident-related complaints. I note that the applicant did attend UHeal Rehab Centre from the day after the accident. The respondent submits there are no references to chronic pain or ongoing pain complaints in the medical documentation.
21I find that the applicant’s physician, Dr. Martin Tong, of MediOne Physicians notes, on July 20, 2023, that the applicant had complaints of right-sided chest pain from playing basketball, and that he found it painful to lift heavy objects. Dr. Tong also mentioned that the applicant works in a warehouse.
22I find that there is minimal medical evidence to show that the applicant sustained any accident-related impairments beyond uncomplicated soft tissue injuries with no residual functional impairment. In addition, the applicant does not direct me to any CNRs of his treating physicians which mention any complaints of chronic pain with functional limitations as a result of the accident. I find that neither the CNR’s of UHeal Rehab Centre, or the pre-screen report by Dr. McDowall mention that the applicant has been diagnosed with chronic pain. Although the applicant submits that he is functionally restricted from working, there is evidence to the contrary that he is working and playing basketball.
23Therefore, the applicant has not demonstrated that his accident-related injuries fall outside the MIG on the basis of chronic pain.
b) Psychological impairment
24I find that the applicant has not proven on a balance of probabilities that he sustained a psychological condition as a result of the accident warranting removal.
25The applicant submits that he should be removed from the MIG on account of his psychological impairments, which include nightmares, difficulty sleeping, anxiety, poor mood and fatigue. The applicant relies on the CNRs from the Hubei Provincial Medical Institution, in China; the pre-screen report, dated December 15, 2022, by Dr. McDowall, and the plan dated March 2, 2023, completed by Dr. Richard Tavares, chiropractor. However, a chiropractor is not qualified to determine whether the applicant has a psychological impairment.
26The applicant submits that, on September 4, 2024, he reported to doctors in the neurology department at the Hubei Provincial Medical Institution that for a period of six months he has had symptoms of dizziness, weakness and decreased memory. The applicant submits that in the record from Hubei Provincial Medical Institution, these doctors diagnosed him with neurasthenia, anxiety disorder, sleep disorder and vertigo.
27The applicant also submits that Dr. McDowall indicates in her pre-screen report that he reported difficulty sleeping, nightmares, poor mood, decreased memory and concentration, avoidance behaviours, and vehicular anxiety. The applicant submits that Dr. Tavares mentions neurological and psychological symptoms.
28In response, the respondent submits that the applicant reported symptoms of dizziness, weakness and decreased memory to doctors at Hubei Provincial Medical Institution that began nearly 16 months after the accident and may not be accident related. The respondent further submits that Dr. McDowall did not review any medical documents in preparing her report, and the applicant did not report any psychological symptoms to his treating physicians.
29I agree with the respondent that there is no indication that Dr. McDowall reviewed any documentation as part of her report and that she relied heavily on the applicant’s self-reports without the benefit of interviewing the applicant directly. I place little weight on the pre-screen report by Dr. McDowall in the absence of supporting documentation of an accident-related psychological impairment by the applicant’s treating physician. In addition, I find that the doctors at the Hubei Provincial Medical Institution based their conclusions on the applicant’s self-reports without reviewing any supporting medical documentation, and therefore, I am not persuaded by the report dated September 4, 2024.
30I find that the applicant has not discharged his onus of establishing entitlement to treatment outside the MIG, as the medical evidence does not support the existence of a psychological diagnosis or mental impairment arising from the accident. I find that the presence of psychological symptoms, as mentioned by Dr. McDowall and Dr. Tavares does not necessarily give rise to a psychological impairment to warrant removal from the MIG.
31Overall, I find that the applicant has not met his onus of establishing on a balance of probabilities that he sustained accident-related injuries that warrant removal from the MIG.
The applicant is not entitled to the disputed treatment plans
32Since I have found that the applicant’s accident-related injuries do not remove him from the MIG, and the parties agree that the MIG limit of $3,500.00 has been exhausted, it is not necessary for me to consider whether the plans are reasonable and necessary. The applicant is not entitled to the disputed treatment plans.
Was the respondent’s denial of the treatment plans compliant with s. 38(8) of the Schedule?
33I find that the applicant has not proven, on a balance of probabilities, that the respondent’s denial notices for the treatment plans dated March 2, 2023 and March 9, 2023 did not conform with the requirements of s. 38 of the Schedule.
34Section 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.
35If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer 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 is an insurer must pay for all 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).
36The 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.
Denial of OCF-18 dated March 2, 2023
37The applicant argues that the plan dated March 2, 2023, for chiropractic services, was improperly denied by the respondent. The respondent wrote to the applicant on March 15, 2023, denying the benefit, i.e., within 10 business days after receiving the plan. The applicant argues that the respondent’s denial does not provide medical and other reasons for the denial.
38The applicant also submits that the respondent’s denial was generally improper and does not provide particulars regarding this plan.
39I find that the March 15, 2023 letter was a valid denial letter. It indicates that the applicant’s injuries fall under the MIG, and the respondent had not received any compelling medical information to support an injury to warrant removal from the MIG. It further indicates that the respondent requested additional medical evidence to determine whether he sustained a non-minor injury or a pre-existing condition that would prevent recovery under the MIG.
40Here, the respondent has requested information about the applicant’s pre-existing conditions and accident-related injuries that it does not have but requires to determine whether these injuries fall outside the MIG. As such, I find the respondent’s reference to the MIG and request for additional information in the denial letter was a valid denial of the plan.
41In sum, I find that the March 15, 2023 letter was a valid denial letter. I find that 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. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid. The respondent identified the services which it did not agree to pay for, as well as the medical and other reasons why it considered the services to not be reasonable and necessary. In this case, the respondent stated that the applicant sustained minor injuries, which is a valid medical and other reasons.
42I find on a balance of probabilities that the applicant has not met his burden to establish that this plan is payable under s. 38(11).
Denial of OCF-18 dated March 9, 2023
43The applicant argues that the plan dated March 9, 2023, for a psychological assessment was improperly denied by the respondent. The respondent wrote to the applicant on March 10, 2023, denying the benefit, i.e., within 10 business days after receiving the plan. The applicant argues that the respondent’s denial of this plan does not comply with s.38(8) of the Schedule because it does not provide medical and other reasons for the denial.
44The applicant also submits that the respondent’s denial was generally improper and does not provide particulars regarding this plan.
45I find that the March 10, 2023 letter was a valid denial letter. It indicates that the applicant’s list of injuries falls under the MIG definition, and the respondent had not received any compelling medical information to support a psychological condition to warrant removal from the MIG. As such, I find the respondent’s reference to the MIG in the denial letter was a valid denial of the plan.
46I find that 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. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.
47I find, on a balance of probabilities, that the applicant has not met his burden to establish that this plan is payable under s. 38(11).
The applicant is not entitled to an IRB
48The applicant seeks an IRB for the period of December 20, 2022, to date and ongoing. This claim covers periods that are both pre-104 -weeks and post-104 weeks after the accident.
a) Pre-104 Week IRB
49I find the applicant is not entitled to pre-104-week IRBs.
50I find that the applicant has not met his onus to demonstrate that he is substantially unable to perform the duties of his pre-accident job as a warehouse worker within 104-weeks after the accident, because he advised his doctor, Dr. Tong, on July 20, 2023, that he is working in a warehouse.
51To receive payment for pre-104-week IRB under s. 5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
52The applicant submits that he was employed as a warehouse worker at Winnec Inc. on the date of the accident, and he was unable to return to his duties of loading and unloading delivery vehicles after the accident. The applicant submits that his pre-accident job duties required stamina, concentration, and prolonged sitting, standing, lifting, and walking. The applicant submits that he is unable to work due to his accident-related injuries. The applicant relies on a Disability Certificate (“OCF-3”) dated December 12, 2022, completed by Ahmed Afifi, physiotherapist at UHeal Rehab Centre; and the records of Dr. Richard Tavares, chiropractor, of UHeal Rehab Centre, which indicates he is unable to perform the essential tasks of his pre-accident employment. However, the applicant does not provide details to explain how his injuries prevent him from performing the essential tasks of his pre-accident employment.
53The applicant submits that he had no pre-existing conditions that would impact his ability to complete the essential tasks of his employment, and he was unable to return to work due to his physical and psychological accident-related injuries. The applicant submits that Dr. Tavares has documented in OCF-18’s dated February 3, 2023, and March 2, 2023, that he has radicular, neurological, and psychological symptoms, with functional limitations and difficulty performing his full work duties. However, the applicant does not indicate what duties he was unable to perform, or the length of time he was unable to return to his pre-accident duties.
54The respondent submits that the applicant was employed as a warehouse maintenance delivery person before the accident. The applicant completed an Application for Accident Benefits (“OCF-1”), dated December 12, 2022, and an Employer’s Confirmation of Income form (“OCF-2”), dated December 17, 2022, indicating he was employed as warehouse staff at Winnec Inc., earning $44,926.00 gross in the 52-weeks before the accident. Further, the respondent submits that the evidence is unclear regarding the date the applicant returned to work after the accident. Although the applicant submits that he has not returned to work, it is the respondent’s position that he has not produced tax records or income documentation to show his post-accident income.
55The respondent relies on the IE reports, both dated June 12, 2023, by Dr. Ida Cavaliere, physiatrist, and Dr. Marjan Saghatoleslami, psychologist. Dr. Cavaliere concluded that the applicant’s physical symptoms were 85% improved and would not prevent him from returning to his pre-accident job. Dr. Saghatoleslami determined that the applicant had no psychological impairments as a result of the accident, and the applicant reported to Dr. Saghatoleslami that since he forgets information in five to ten seconds, he cannot return to work. It is unclear what essential tasks of the applicant’s employment he is unable to perform due to forgetfulness, or whether his forgetfulness is accident related. I note that the applicant reported to Dr. Cavaliere that his pre-accident duties included operating a forklift, lifting forty to fifty pounds on average, and preparing orders for shipping on trucks. In addition, the applicant reported to Dr. Cavaliere that he was eventually terminated from his employment, after he didn’t return to work and modifications were not offered. Both Dr. Cavaliere and Dr. Saghatoleslami concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.
56I find that the applicant has not met his burden to establish that he has suffered a substantial inability to perform the essential tasks of his employment as a warehouse worker within 104 weeks after the accident. I find that although the applicant has produced evidence that he was receiving an income based on employment as a warehouse worker at the time of the accident, he has not identified the essential tasks of his pre-accident duties other than loading and unloading trucks, and that his job requires prolonged sitting, standing, lifting and walking. I find that the applicant does not explain whether the duties of loading and unloading delivery vehicles are the only essential tasks of his pre-accident employment, and if so, how his accident-related injuries prevent him from performing these duties or any other essential duties.
57I find that the applicant has not pointed to medical evidence to support his inability to return to his pre-accident position at Winnec Inc. after the accident. I find that Dr. Tong indicates on July 20, 2023, that the applicant is working in a warehouse and the applicant does not refute this. As a result, the applicant has not established his entitlement to an IRB based on his pre-accident employment as a warehouse worker at Winnec Inc.
58For the foregoing reasons, I find on a balance of probabilities that the applicant has not met his burden of establishing entitlement to an IRB for the pre -104-week period. The applicant has not demonstrated that he was substantially unable to perform the essential tasks of his pre-accident employment as a warehouse worker from December 20, 2022 to December 11, 2024.
b) Post-104 weeks after the accident
59To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.
60The applicant makes no submissions to explain how he meets the test in support of his entitlement to post-104-week IRBs.
61I find that since the applicant has not met his burden of establishing entitlement to an IRB to the pre-104-week period, there is no need to address his entitlement to post-104-week IRBs.
Interest
62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest.
Award
63Under s. 10 of O. Reg. 664, 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 O. Reg. 664 is not warranted.
ORDER
64For the reasons set out above, I find that:
i. The applicant has not demonstrated that removal from the MIG is warranted;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to an IRB;
iv. The applicant is not entitled to interest, or an award; and,
v. The application is dismissed.
Released: July 22, 2025
Lisa Holland
Adjudicator