Ng v. TD General Insurance Company, 2025 CanLII 81408

Citation: Ng v. TD General Insurance Company, 2025 ONLAT 23-012304/AABS

Licence Appeal Tribunal File Number: 23-012304/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:

May-Shan Ng

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel

For the Respondent: Hodson Harding, Counsel Aljosa Alilovic, Counsel

HEARD: By way of written submissions

OVERVIEW

1May-Shan Ng, the applicant, was involved in an automobile accident on October 4, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

[2] The issues in dispute are: i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from October 11, 2022 to January 12, 2023? ii. Is the applicant entitled to $1,534.00 for chiropractic services, proposed by Chiropractic First, in a treatment plan, dated March 30, 2023? iii. Is the applicant entitled to chiropractic services submitted on a claim form (“OCF-6”) as follows: a. $1,063.66 for chiropractic services, in an OCF-6, dated February 7, 2023; b. $5,532.60 for chiropractic services, in an OCF-6, dated March 9, 2023; and c. $2,276.00 for chiropractic services, in an OCF-6, dated September 11, 2023? iv. Is the applicant entitled to attendant care benefits in the amount of $1,107.40 per month from June 1, 2023 to November 30, 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?

3The Case Conference Report and Order (“CCRO”), dated April 18, 2024, lists issue 1 as, “Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 11, 2021, to date and ongoing”. The applicant in her submissions states that the claim for IRBs is for the period from October 11, 2022 to January 12, 2023. I have therefore listed the issue in dispute as, “Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 11, 2022 to January 12, 2023?”

4The CCRO lists issue 3 as, “Is the applicant entitled to $1,063.66 for chiropractic services, submitted on a claim form (OCF-6) February 7, 2022, and denied May 5, 2023. The applicant in her submissions states that the date should be February 7, 2023. I have therefore amended the date in the issues in dispute.

5The CCRO lists issue 4 as, “Is the applicant entitled to $4,547.23 for chiropractic services, submitted on a claim form (OCF-6) March 9, 2023, and denied May 5, 2023?” The applicant in her submissions states that the OCF-6 dated March 9, 2023 is for $4,547.23, however the statement of account of Chiropractic First dated February 8, 2023 indicates the total cost of treatment is $5,532.60. She therefore requests that the amount in dispute be amended from $4,547.23 to $5,532.60. As the respondent did not raise any objection to this amendment, I have amended the amount in dispute to $5,532.60.

RESULT

6I find that the applicant is not entitled to an IRB in the amount of $400.00 per week from October 11, 2022 to January 12, 2023.

7I find that the applicant is not entitled to the treatment plan for chiropractic services, dated March 30, 2023.

8I find that the applicant is not entitled to the OCF-6s for chiropractic services, dated February 7, 2023, March 9, 2023 and September 11, 2023.

9I find that the applicant is entitled to attendant care benefits from June 1, 2023 to June 13, 2023 in the amount of $1,107.40 per month and from June 13, 2023 to September 30, 2023 in the amount of $813.21 per month, plus interest.

10I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.

PROCEDURAL ISSUE

Section 54 of the Schedule

11The applicant in her reply submissions refers to s. 54 of the Schedule. She submits that a hearing is limited to the denial reason served upon the applicant by a notice under s. 54 of the Schedule, and the applicant has the onus to disprove the reasons on the balance of probabilities. The applicant submits that a hearing is not a place for the respondent to introduce new facts in respect of the issues in dispute that were already denied when the denial letters under s. 54 did not incorporate those facts. The applicant submits that a hearing is limited to the denial reasons served upon the applicant by a notice under s. 54 and the applicant’s onus is to disprove the reasons on the balance of probabilities.

12Section 54 of the Schedule states the following:

If an insurer refuses to pay a benefit or reduces the amount of a benefit that a person is receiving, the insurer shall provide the person with a written notice advising the person of his or her right to dispute the refusal or reduction.

13I find that as the applicant first raised this argument in her reply submissions, the respondent was not given an opportunity to respond to these submissions.

14I find that the applicant is attempting to assert that the respondent is not allowed to make new submissions in this hearing, that were not specifically noted in the respondent’s denial letters of the benefits in dispute. I do not find that s. 54 of the Schedule states that the respondent in a hearing before the Tribunal can only make submissions based on its denial letters and is not permitted to make new submissions. Section 54 requires that the respondent provide a clear and unequivocal denial and advise the applicant of her right to dispute the refusal. It says nothing about the respondent’s right to make submissions at a hearing.

15I find that the respondent has complied with s. 54 of the Schedule and provided the applicant with clear and unequivocal denials. It further advised the applicant of her right to dispute the refusal within these denials. I further find that the respondent is entitled to make submissions on its position and respond to the applicant’s submissions, in this hearing. I have therefore reviewed the entirety of the respondent’s submissions in reaching my decision.

ANALYSIS

The applicant is not entitled to IRBs

16I find that the applicant is not entitled to IRBs from October 11, 2022 to January 12, 2023.

17Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

18Section 11 of the Schedule provides that a person receiving IRBs may return to or start employment at any time during the first 104 weeks for which they are entitled to receive the benefit without affecting their entitlement to resume receiving the benefit if they are unable to continue the employment.

19The applicant claims entitlement to an IRB in the amount of $400.00 per week from October 11, 2022 to January 12, 2023, in the amount of $6,369.73.

20At the time of the accident, the applicant was an employee at Good Sniff Spaws Inc. and worked as a mobile groomer since February 6, 2020. Her last day worked was September 29, 2021. She returned to work following the accident on October 25, 2021. The applicant submits that her return to work was temporary, gradual and was not full-time. She therefore is claiming entitlement to an IRB based on the shortfall of income that she earned during the relevant period based on s. 11 of the Schedule. She relies upon the Employer’s Confirmation Form (“OCF-2”) dated December 17, 2021, a statement of the shortfall of income, her pay stubs, and her T1 General for 2002, to support her IRB claim.

21The applicant submits that her onus is to prove on a balance of probabilities that the Insurer Examination (“IE”) reports referred to in the respondent’s denial letter dated October 17, 2022, are flawed and statutorily deficient. The applicant submits that the IE reports dated October 6, 2022, of Dr. Syed, psychologist, Dr. David Berbrayer, and physiatrist, Dr. Nagib Yahmad, neurologist, are flawed and statutory deficient. She argues that the assessors arrived at the conclusion that she does not suffer a substantial inability to perform the essential tasks of her pre-accident employment, without first establishing the essential tasks of the employment and failing to address the impairments identified in the IE report of Luigi Grimaldi, kinesiologist.

22The respondent submits that the applicant has incorrectly stated her onus. The respondent submits that her onus is to prove under s. 5(1) of the Schedule that she suffers a substantial inability to perform the essential tasks of her pre-accident employment. The respondent submits that the applicant has submitted very little evidence by way of clinical notes and records (“CNRs”) and that there is no mention in any of these CNRs, specifically from Kingsbridge Medical Centre, of any issues related to work or any difficulties related to her performing her employment tasks. The respondent further submits that the applicant has not provided any evidence to support that she was unable to engage in her pre-accident employment duties. In addition, she has not provided sufficient employment or income tax records to get an accurate depiction of whether or not she remains employed.

23The respondent further submits that on July 21, 2022, the respondent advised the applicant that she was required to attend IE assessments to determine her eligibility of IRBs. In all three assessments, the IE assessors opined that the applicant did not sustain clinically significant impairments that would result in a substantial inability to engage in the essential tasks of her pre-accident employment.

24I find that the applicant has not established that she is entitled to an IRB for the following reasons.

25First, I agree with the respondent that the applicant is arguing the wrong test for entitlement to an IRB. The onus is on the applicant to prove on a balance of probabilities that she suffers a substantial inability to perform the essential tasks of her pre-accident employment. I find that the applicant is incorrect in her submission that her onus is to prove that the IE reports are flawed and statutory deficient.

26Second, I find on review of the applicant’s submissions that she has not referred to any medical evidence that supports her entitlement to an IRB. The entire focus of the applicant’s submissions is on the flaws of the IE reports. While the applicant is entitled to dispute the findings of the IE reports, it is still her onus to provide medical evidence to support her own entitlement. I find that the applicant has not done this.

27As I have found that the applicant has not provided any submissions or evidence to support that she suffers a substantial inability to perform the essential tasks of her pre-accident employment, it is not necessary for me to provide an analysis of the IE reports.

28Finally, I find that the OCF-2, the statement of shortfall in income, the pay stubs, and the T1 Generals for 2022 and 2023, are not sufficient to support that the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment, without corroborating medical evidence in support.

29For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to an IRB from October 11, 2022 to January, 2023.

The applicant is not entitled to medical and rehabilitation benefits

30To receive payment for a treatment and assessment plan under s. 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

The applicant is not entitled to the treatment plan for chiropractic services dated March 30, 2023

31The applicant is not entitled to the treatment plan for chiropractic services dated March 30, 2023.

32The applicant claims entitlement to $1,534.00 for chiropractic services, proposed by Chiropractic First, in a treatment plan, dated March 30, 2023.

33The applicant relies upon a letter from the respondent dated June 16, 2023, which acknowledges receipt of an OCF-21 from Chiropractic First, dated June 1, 2023, in the amount of $1,534.00 for chiropractic treatments from March 2, 2023 to June 1, 2023. She submits that the OCF-21 was denied as the treatment dates on the OCF-6 did not match the dates on the OCF-21, and the treatment was incurred before the submission of the treatment plan.

34The applicant further relies upon a letter from the respondent dated October 26, 2023, which she claims approves the treatment plan dated March 30, 2023. Upon review of this letter, it appears that the respondent states the following:

Please note that to date, we have only received and approved one Treatment and Assessment Plan completed by Chiropractic First dated March 30, 2023 in the amount of $2,966.00. We will not consider payment of the approved goods and services until such a time that your service provider submits the corresponding invoices (OCF-21) via HCAI to the invoices you submitted.

35The applicant submits that there has been a mix up, as the denied OCF-21 was submitted on HCAI in the amount of $1,534.00 against the approved treatment plan in the amount of $2,966.00. Therefore, the applicant submits that the respondent is liable to pay the incurred amount against the approved treatment plan.

36The respondent submits that the applicant has failed to submit a treatment plan and the submission date of March 30, 2023, has not been substantiated. The respondent further submits that the applicant has failed to provide an OCF-21 signed by the applicant confirming the appropriate dates pertaining to this treatment plan. The respondent submits that by letter dated June 16, 2023, it acknowledged the OCF-21 from Chiropractic First in the amount of $1,534.00. It advised the applicant that the OCF-21 was not payable as the goods, services, and/or assessments were incurred before the submission of a completed and approved treatment plan.

37I find that a copy of the treatment plan dated March 30, 2023, has not been provided by the applicant in her submissions. Therefore, I do not know what the treatment plan recommends, the goals of the treatment plan, or the cost of the treatment proposed.

38I further find that the applicant has not provided me with any correspondence from the respondent confirming that a treatment plan dated March 30, 2023, was approved by the respondent. I find that while the respondent’s letter dated October 26, 2023, refers to a treatment plan dated March 30, 2023, in the amount of $2,966.00, this is not the same amount that is being claimed by the applicant. As the applicant has not provided the Tribunal with a copy of the treatment plan in dispute, there is no way of decerning whether this is the same treatment plan now being claimed.

39For the reasons set out above, I find on a balance of probabilities that the applicant has not proved that she is entitled to the treatment plan dated March 30, 2023, in the amount of $1,543.00.

The applicant is not entitled to the OCF-6s for chiropractic services dated February 7, 2023, March 9, 2023

40The applicant is not entitled to the OCF-6s for chiropractic services dated February 7, 2023 and March 9, 2023.

41The applicant claims entitlement to the OCF-6, dated February 7, 2023, in the amount of $1,063.66 and to the OCF-6, dated March 9, 2023, in the amount of $5,532.60. The applicant submits that the respondent’s denial letter dated May 5, 2023, acknowledges receipt of the two OCF-6s and denies both OCF-6s on the ground that the amounts were incurred before the submission of a completed and approved treatment plan. The applicant submits that the respondent did not cite the relevant sections of the Schedule in its denial letter. The applicant therefore submits that the denial is statute deficient because the applicant did not know the case to be met.

42The respondent submits the applicant is not entitled to the two OCF-6s. The respondent submits that the expenses in the OCF-6s were incurred before the submission of a completed and approved treatment and assessment plan. As per s. 38(2) of the Schedule, an insurer is not liable to pay an expense in relation to a medical benefit that the insurer incurred before submitting a treatment plan compliant with s. 38(3).

43I find upon review of the respondent’s letter dated May 5, 2023, that the respondent clearly sets out that the OCF-6s were not payable because they were incurred before the submission of a completed and approved treatment and assessment plan. It further advised that it would not consider payment of the approved goods and services, until such time that the service provider submits the corresponding invoices (OCF-21) via HCAI to the invoices submitted.

44While I note that the respondent does not refer to any section in the Schedule in its denial, I do not find that this is sufficient to conclude that the denial is statute deficient. The applicant has not pointed me to any authority or case law that states that the respondent must provide the relevant statute when making its denial of a benefit. I further find that there is no evidence before me that following receipt of this denial letter, that the applicant then provided the requested corresponding invoices.

45I find that as the applicant did not submit a treatment plan and had already incurred the services in dispute, I agree with the respondent that s. 38(2) applies.

46For the reasons set out above, I find on a balance of probabilities that the applicant has not proved that she is entitled to the OCF-6s dated February 7, 2023 and May 5, 2023.

The applicant is not entitled to the OCF-6 for chiropractic services dated September 11, 2023

47The applicant is not entitled to the OCF-6 for chiropractic services dated September 11, 2023.

48The applicant claims entitlement to the OCF-6, dated September 11, 2023, in the amount of $2,276.00. The applicant submits that the respondent’s denial letter dated October 26, 2023, acknowledges receipt of the OCF-6 and denied it on the ground that the amounts were incurred before the submission of a completed and approved treatment plan. The applicant submits that the respondent refers to s. 38(2) of the Schedule as a reason for the denial. The applicant submits that the respondent’s denial is incomplete as it does not clarify why the respondent does not agree to cover the said expenses, as the incurred expense is essential for the treatment or rehabilitation of the applicant, the services provided to the applicant are referred to in section 15(1)(h) and the cost of per service is less than $250.00 per service. The applicant claims entitlement to the OCF-6 based on s. 38(2)(d) of the Schedule.

49The respondent submits the applicant is not entitled to the OCF-6. The respondent submits that the expenses in the OCF-6s were incurred before the submission of a completed and approved treatment and assessment plan. As per s. 38(2) of the Schedule, an insurer is not liable to pay an expense in relation of a medical benefit that the insurer incurred before submitting a treatment plan compliant with s. 38(3).

50I find that s. 38(2)(d) of the Schedule states that an insurer is not required to pay for a medical and rehabilitation benefit when an expense is incurred before the submission of a treatment plan, unless the insurer agrees that the expense is essential for the treatment or rehabilitation of the insured person for services referred to in clause 15(1)(h) or 16(3)(l) with a cost of $250 or less per item or service, as the case may be.

51I find that the applicant was in non-compliance with s. 38(2), because she incurred the expenses in dispute prior to submitting a treatment plan. I further find, that despite the applicant’s submissions, she has not provided any evidence to support that she meets any of the criteria for an exception under s. 38(2)(d). I find that the applicant has not provided any medical evidence or submissions to support that the incurred expenses are essential for the treatment or rehabilitation of the applicant. I find that simply citing the exceptions in her submissions is not sufficient to prove she meets the criteria for the exception in (d).

52I find that as the applicant did not submit a treatment plan and had already incurred the services in dispute, I agree with the respondent that s. 38(2) applies.

53For the reasons set out above, I find on a balance of probabilities that the applicant has not proved that she is entitled to the OCF-6 dated September 11, 2023.

Entitlement to Attendant Care Benefits

54I find that the applicant has established entitlement to attendant care benefits from June 1, 2023 to September 30, 2023.

55The applicant claims entitlement to attendant care benefits from June 1, 2023 to November 30, 2023, at the rate of $1,107.50 per month.

56The applicant submits that the respondent in its letter dated December 29, 2022, acknowledged receipt of the Form 1 dated November 28, 2022, and agreed to pay attendant care benefits in the amount of $1,107.50 per month. The applicant submits that a new Form 1 dated June 14, 2023, in the amount of $813.21 was submitted to the respondent. The applicant submits that by letter dated September 13, 2023, the respondent advised the applicant that she was not entitled to attendant care benefits based on the IE report and Form 1, prepared by Andrew Phillips, occupational therapist, dated August 30, 2023, and that her benefits would be terminated on September 30, 2023.

57The applicant submits that she does not contest the stoppage of benefits as of September 30, 2023, but asserts that the respondent is liable to pay $1,107.50 per month from June 1, 2023 to September 30, 2023, in the total amount of $4,429.60.

58The respondent submits that the applicant has not proven that attendant care benefits are reasonable and necessary and has not provided any evidence of incurred attendant care.

59Pursuant to s. 42(1) of the Schedule, the applicant submitted a Form 1, dated June 14, 2023. Pursuant to s. 42(6) of the Schedule, within 10 business days after receiving the Form 1, the respondent was required to begin paying attendant care benefits to the applicant and pending receipt of a report of an examination under s. 44 of the Schedule, the respondent was required to calculate the amount of the benefit based on the Form 1 dated June 14, 2023.

60Upon review of the respondent’s letter to the applicant dated December 29, 2022, I find that the respondent agreed to pay the monthly attendant care benefit of $1,107.68. I find that on June 14, 2023, an updated Form 1 was prepared by Mr. Wong recommending a monthly attendant care benefit of $813.21. I find that neither party has provided me with a copy of this Form 1 or any correspondence from the respondent denying the Form 1 or arranging a s. 44 assessment. Upon review of the respondent’s letter to the applicant dated September 13, 2023, I find that the respondent advised the applicant based on the IE report of Mr. Phillips, that she was not entitled to the Form 1 prepared by Mr. Wong dated June 14, 2023. The letter states that the applicant’s attendant care benefit will be terminated effective September 30, 2023.

61I therefore agree with the applicant that she is entitled to an attendant care benefit from June 1, 2023 to September 30, 2023, the date of stoppage by the respondent. I find that the respondent approved attendant care benefits on December 29, 2022, in the amount of $1,107.68. I find that the applicant is entitled to attendant care benefits in the amount of $1,107.68 per month from June 1, 2023 to June 13, 2023. On June 14, 2023, the updated Form 1 was submitted in the amount of $813.21. Therefore, the applicant is entitled to attendant care benefits in the amount of $813.21 per month from June 14, 2023 to September 30, 2023, the date of stoppage.

62With respect to the respondent’s submission that attendant care benefits have not been incurred, I find that pursuant to s. 19(1) of the Schedule, the respondent is only obligated to pay attendant care benefits that were incurred. The applicant has provided invoices from Somatic Assessments for June 2023, July 2023, August 2023, and September 2023. I therefore find that the applicant has proved that the attendant care benefits have been incurred.

63For the reasons set out above, I find that the applicant is entitled to attendant care benefits from June 1, 2023 to June 13, 2023 in the amount of $1,107.68 per month and from June 14, 2023 to September 30, 2023, in the amount of $813.21 per month.

Interest

64Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to attendant care benefits, interest is payable in accordance with s. 51 of the Schedule, from the date payment became overdue to the date that payment was made.

Award

65The applicant sought an award under s. 10 of Reg. 664. Under s. 10, 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.

66I find that the applicant has not provided any submissions with respect to an award. Therefore, I find that the respondent is not required to pay an award under s. 10 of Reg. 664.

ORDER

[67] For the reasons set out above, I find: i. The applicant is not entitled to an IRB in the amount of $400.00 per week from October 11, 2022 to January 12, 2023; ii. The applicant is not entitled to the treatment plan for chiropractic services, dated March 30, 2023; iii. The applicant is not entitled to the OCF-6s for chiropractic services, dated February 7, 2023, March 9, 2023 and September 11, 2023 iv. The applicant is entitled to attendant care benefits from June 1, 2023 to June 13, 2023 in the amount of $1,107.40 per month and from June 13, 2023 to September 30, 2023 in the amount of $813.21 per month, plus interest; and v. The respondent is not liable to pay an award under s. 10 of Reg. 664.