Licence Appeal Tribunal File Number: 23-010606/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:
Junsheng Luo
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Bruce Stanton
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Jodie Therrien, Counsel
Heard by:
By way of written submissions
OVERVIEW
1Jungsheng Luo, the applicant, was involved in an automobile accident on March 13, 2023, 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, Allstate Insurance Company of Canada, 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. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from March 21, 2023, and ongoing?
ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan/OCF-18 (“plan”) submitted on May 2, 2023?
iii. Is the applicant entitled to $1,726.54 for physiotherapy services, proposed by Easy Health Physio, in a plan submitted on May 2, 2023?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3The respondent removed the applicant from the MIG and therefore this issue is no longer in dispute. I have adjusted the list of issues in dispute set out above accordingly.
4I take notice that the Case Conference Report and Order of April 2, 2024 listed issue iii. above in the amount of $1,736.54. The issue was added at the case conference. The copy of the related OCF-18 in evidence for the hearing reflects an amount of $1,726.54. Accordingly, the amount for issue 3 above has been corrected.
RESULT
5The applicant is not entitled to an income replacement benefit (“IRB”) nor the two disputed treatment plans. The respondent is not liable to pay an award under s. 10 of Reg. 664. The applicant is not entitled to interest.
ANALYSIS
The applicant is not entitled to Income Replacement Benefits
6I find the applicant is not entitled to IRBs.
7To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be 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.
8The applicant submits that, due to his accident injuries, he was unable to resume work as a dealer at Woodbine Casino (full-time) until April 29, 2023. He submits that he continued working through to August 28, 2023, at which point he stopped working and remained off until April 30, 2024. He submits he returned to work full-time on May 8, 2024.
9The applicant did not make submissions on the reasons for stopping work on August 28, 2023, and not resuming until May 2024, but submits that he is entitled to IRBs for this period, leaving me with the impression that he contends that this second absence from work, August 29, 2023 to April 30, 2024, was occasioned by his accident injuries.
10Accordingly, the applicant submits that he is entitled to IRBs for two distinct periods following the accident, as follows:
| Claimed Periods of IRB Entitlement | Duration | Amount* |
|---|---|---|
| March 21 to April 28, 2023 | 5 weeks and 4 days | $2,228.57 |
| August 29, 2023 to April 30, 2024 | 35 weeks and 2 days | $14,114.28 |
*Based on $400.00/week
11The applicant submits that his entitlement to IRBs was satisfied by the submission of a Disability Certificate (“OCF-3”) completed by Easy Health Centre dated March 16, 2023 and filed with the respondent April 12, 2023, and the accompanying OCF claim forms, the Application for Accident Benefits (“OCF-1”) and the Employer Confirmation Form (“OCF-2”) and pay stubs for the four weeks prior to the accident.
12The OCF-3 was authored by Santosh Michael, physiotherapist. It declared that the applicant was substantially unable to perform the essential tasks of his employment and suffered a substantial inability to perform housekeeping and home maintenance services, for an anticipated period of 9 to 12 weeks.
13The applicant submits that in the respondent’s Explanation of Benefits (“EOB”) letters of April 21 and June 6, 2023, the respondent sought health records (physician’s clinical notes and OHIP Summaries) that were not reasonably required to determine his entitlement to IRBs. The applicant submits that such health records are not referred to in s. 36 of the Schedule, in relation to claims for IRBs, and are therefore not reasonably required pursuant to s. 33(1).
14The applicant submits, further, that in its EOB of August 2, 2023, after receiving the applicant’s OCF-2, the respondent sought the complete Short-Term and Long-Term Disability (“STD/LTD”) documents from the applicant’s extended health carrier, Sun Life. The subject EOB made no further requests for medical and OHIP records.
15The applicant submits that his application for IRBs was complete pursuant to s. 36 of the Schedule and ought to have compelled payments from the respondent upon him filing his OCF-1, OCF-3, OCF-2 and pay stubs, all of which were filed by July 4, 2023.
16The applicant submits that determination of IRB entitlement is not contingent on the receipt of STD/LTD documents pursuant to s. 47(1)1 of the Schedule, which permits the insurer to deduct temporary disability benefits from an insured’s IRB. The applicant submits that the respondent ought to have begun IRB payments to him based on the documents he filed up to July 4, 2023 (OCF forms and pay stubs) and could have informed him that any IRB overpayment occasioned by STD/LTD payments, could be repaid to the insurer pursuant to s. 52 of the Schedule.
17The applicant submits that the respondent wrongly withheld and denied the payment of the IRB claim and seeks an IRB payment of $16,342.85 ($2,228.57 plus $14,114.28) as noted above.
18The respondent submits that the applicant did not meet his burden in demonstrating that he suffered a substantial inability to perform the essential tasks of his employment. It submits that he has presented no evidence that he is incapable of post-accident employment.
19The respondent submits that the applicant’s OCF-3, is not compelling. The respondent questions the OCF-3’s credibility because its author, Mr. Michael, diagnosed the applicant with post-concussion syndrome. It submits that no other practitioner diagnosed this condition, and such a diagnosis is far outside a physiotherapist’s area of expertise. The applicant did not make submissions on the reported post-concussion injury but submits the OCF-3 supports his entitlement to IRBs.
20The respondent submits that the applicant took a leave of absence between August 27 and September 4, 2023, for the birth of his son (born on August 28, 2023), and then began parental leave on September 13, 2023. The respondent directed me to the applicant’s EI file dated March 18, 2024, noting that the Record of Employment (“ROE”) issued on September 9, 2023 indicates the reason for issuing the ROE was for a leave of absence starting August 28, 2023. A subsequent ROE issued September 29, 2023 stated the reason for the ROE was parental leave. Further, the respondent submits that in the applicant’s application for EI benefits for parental leave dated September 15, 2023, the applicant responded “No” to the question of whether, during the last two years, the applicant was at any time unable to work for medical reasons.
21The applicant’s application for EI benefits did not specify an expected date of return to work however it did indicate the applicant chose the Standard Option for parental benefits, being 35 weeks based on 55% of weekly insurable earnings, the same length of time as the second interval being sought for IRBs in the table above.
22The respondent submits that the OCF-2 demonstrates that short-term disability (“STD”) benefits were available to the applicant for the period March 13 to May 7, 2023, and sick leave benefits were also available. In its August 29, 2023 EOB, the respondent requested that the applicant contact Sun Life for consideration of any STD benefit available to him as they were the primary payor pursuant to s. 47(2) of the Schedule. The appellant disagrees with the respondent’s reliance on s. 47(2) in concluding Sun Life is the priority payor because that provision allows an insurer to withhold only payments of a medical, rehabilitation, attendant care benefit, or a benefit under Part IV, when collateral benefits are available to an insured person. It submits, s. 47(2) does not apply to IRBs.
23The respondent submits that the applicant is obliged to pursue other income provisions and exhaust collateral benefits and to date, has not met that obligation against Sun Life, which it considers to be the priority payor.
24I find that the applicant has not established that he suffered a substantial inability to perform the essential tasks of his employment, as a result of his accident injuries. He did not identify the essential tasks of his employment that he was unable to perform, nor did he provide any insights into the extent to which his accident injuries affected his ability to work, as required by s. 5(1) of the Schedule for entitlement.
25I agree with the applicant’s submissions that the OCF-3, OCF-1, OCF-2 and pay stubs should be sufficient to demonstrate entitlement to an IRB, and trigger the commencement of IRB payments, subject to any adjusting and provision of medical information to support the IRB claim, or any collateral benefits that may be available to an insured person. However, the applicant has not directed me to any evidence that his time off of work in those first five weeks after the accident was due to accident-related injuries. I find the applicant is relying mostly on what he considers to be an unjustified denial of IRBs by the insurer, rather than demonstrating his entitlement to them, which is his burden in this appeal.
26The Tribunal has consistently found that an OCF-3, on its own, is not sufficient medical evidence to prove entitlement. To be persuasive on an issue of entitlement to an IRB, an OCF-3 must be corroborated by objective medical evidence from other sources.
27As noted above, the applicant must also identify the essential tasks of his employment, which tasks he is unable to perform and to what extent they are unable to perform them. He has not provided any evidence in relation to his ability or inability to perform employment tasks as occasioned by his accident injuries.
28By contrast, I am persuaded by the respondent’s submissions and the employment records that the applicant’s absence from work for the second IRB period (August 29, 2023 to April 30, 2024) being claimed, was not accident related. The applicant has not provided me with any evidence to persuade me otherwise.
29I find that the applicant’s claim for IRBs for the first five weeks, is not supported by evidence that he sustained a substantial inability to perform the essential tasks of this employment. I find, based on the evidence before me, that the second IRB period, the 35-weeks following August 28, 2023, was unrelated to the applicant’s accident injuries, and the applicant has not provided any evidentiary basis to believe this second absence was the result of an inability to perform his employment tasks.
30For the reasons discussed above, I find on a balance of probabilities that the applicant did not suffer a substantial inability to perform the essential tasks of his employment and is therefore not entitled to IRBs.
Issue 3: Psychological Assessment, $2,200.00
31I find the applicant has not demonstrated that this treatment plan is reasonable and necessary.
32The Tribunal has found that to receive payment for a treatment and assessment plan under s. 15 and s. 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.
33To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
34The applicant submits that he need only meet the requirements of s. 38(3) of the Schedule in submitting a completed treatment and assessment plan, to oblige the respondent to pay the claim. Section 38(3)(c) sets out what the treatment and assessment plan must include. This includes a statement by a health practitioner approving the plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in it and the proposed costs for it are reasonable and necessary. The applicant seems to suggest that the reasonable and necessary test can be met simply by the health practitioner who authored the OCF-18 attesting to its reasonableness and necessity.
35The applicant submits that he is under no obligation to provide clinical notes and records (“CNRs”) from his family doctor to support his claim for the benefits identified in the OCF-18, in this case a psychological assessment. He suggests there is no provision under any part of the OCF-18 requiring him to attach CNRs to his claim for benefits.
36The applicant relies on the OCF-18 to support his contention that the psychological assessment is reasonable and necessary. He cites the description of his injuries listed in Part 6 which includes specific phobias, headaches, nightmares, sleep disorders, irritability and anger. He also refers me to the Additional Comments section which declares he had no history of mental health issues before the accident. He submits that the goal of the treatment plan is to determine the extent of his psychological impairment.
37I find that the applicant has not met his onus in demonstrating that the psychological assessment is reasonable and necessary.
38The applicant provided no indication of how the goals of the proposed treatment would be met to a reasonable degree or that the overall costs of achieving them were reasonable.
39I am not persuaded by the applicant’s submissions suggesting the satisfactory completion of an OCF-18 is all that is statutorily required for an insurer to be obligated to pay the proposed benefit(s). I agree that the language of s. 38(3) is clear in noting what a treatment and assessment plan must include, but it is not the only provision of the Schedule having a bearing on the insurer’s obligation to pay a claim. As noted above, s. 15 and s. 16 require the insurer to pay for all reasonable and necessary (medical and rehabilitation) expenses incurred by or on behalf of an insured person, as a result of an accident. It is well established that the burden of demonstrating a claim meets the “reasonable and necessary” test rests with the applicant.
40In this case, the applicant has provided no supporting objective corroborating medical evidence of a psychological injury nor offered submissions on the reasonableness and necessity of the assessment. Accordingly, I find that he has not met his burden in proving the psychological assessment is reasonable and necessary.
41I find on a balance of probabilities that the treatment plan is not reasonable and necessary.
Issue 4: Physiotherapy Services, $1,726.54
42I find the applicant has not proven that the disputed treatment plan for physiotherapy services is reasonable and necessary.
43Much like the previous treatment plan, the applicant submits that he need only meet the requirements of s. 38(3) of the Schedule in submitting a completed treatment and assessment plan, to receive payment for the claim.
44The applicant did not make submissions or refer me to any objective medical evidence to support the reasonableness and necessity of this treatment plan, nor did he provide any indication of the goals of treatment or how those goals would be achieved to a reasonable degree.
45Sections 15 and 16 of the Schedule establish that applicants seeking payment for medical and rehabilitation treatments must demonstrate that they are reasonable and necessary.
46In this case, the applicant has provided no supporting objective corroborating medical evidence of the need for the recommended treatment plan for physiotherapy. Accordingly, I find that he has not met his burden in proving the proposed treatment is reasonable and necessary.
47I find on a balance of probabilities that the applicant has not met his onus in demonstrating that the proposed physiotherapy services are reasonable and necessary.
Section 38
48As an alternative argument, the applicant submits that the respondent’s denial notices failed to comply with s. 38(8) of the Schedule and are payable pursuant to s. 38(11). I find that the notices issued by the respondent denying the two disputed treatment plans discussed above ($2,200.00 dated May 15, 2023 and $1,726.54 dated September 13, 2023) were compliant with section 38(8) of the Schedule.
49Section 38(8) stipulates that an insurer must notify an insured person, within 10 business days after it receives a treatment plan, of the goods and services in the plan it agrees to pay for, and not pay for. In the case of those it disagrees to pay for, the insurer must provide the insured party with the medical and all of the other reasons why it considers the proposed services to not be reasonable and necessary.
50Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
51The Tribunal has found in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 29373 (ON LAT) (“T.F. v. Peel”) that as part of the “medical and all of the other reasons” required in a denial letter, the insurer should engage specific details about the insured’s medical condition that inform its decision, and it must do so in a way that would allow an unsophisticated person to understand the reasons for the denial so as to make an informed decision. T.F. v. Peel provides guidance on the question of whether a denial notice meets an insurer’s obligations in s. 38(8) noting that a compliant denial letter ought to include a principled rationale based fairly on an insured person’s file.
52In relation to the two disputed treatment plans, the applicant submits that the respondent failed to provide adequate notice pursuant to section 38(8) and it is therefore obliged to pay the full amount of the treatment plans pursuant to s. 38(11).
OCF-18 - $2,200.00
53The applicant submits that in the notice denying this treatment plan, the respondent does not mention what it reviewed and how it concluded his psychological complaints were not severe enough to warrant a formal assessment. He submits the denial notice does not provide any medical reasons and all other reasons for reaching that conclusion. The applicant submits that the denial is arbitrary and mere conjecture because the adjuster offered no comment on his injuries stated in Part 6 of the associated OCF-18, or the evaluation under Part 9 (Goals, Outcome Evaluation Methods and Barriers to Recovery). He submits that the adjuster is not a psychologist and is therefore not competent or qualified to provide an opinion on his psychological needs.
54The respondent submits that its denial notices for each issue in dispute were clear, unequivocal and valid denials. It contends that each denial explicitly detailed medical reasons which referenced the applicant’s medical condition as well as the submitted and outstanding documentation. It submits that the respondent is not expected to rise to the medical expertise of a physician for these purposes.
55I find the respondent complied with its obligations under section 38(8) in the subject denial notices. The applicant did not identify or describe how the explanation in the notice came short of providing the medical and all of the other reasons for the denial. The notice stated that, based on the medical documentation provided, and the injuries listed in the OCF-18, the insurer concluded the applicant’s injuries could be treated within the MIG. The notice then outlined the definition of minor injury as set out in s. 3 of the Schedule. I find that the notice engaged the details of the applicant’s medical condition that informed its decision and did so in understandable, unsophisticated language. Although the respondent subsequently removed the applicant from the MIG, I nonetheless find the explanation was sufficient for the applicant to make an informed decision, whether in following up with the insurer or in considering whether he should dispute the decision. I find that the denial notice provided a principled rationale based on the medical documentation of the applicant that was then in possession of the respondent.
OCF-18 - $1,726.54
56The applicant submits that the only reason offered by the respondent for the denial of this treatment plan was that it was not reasonable and necessary. He submits that the notice did not provide the medical reasons and all other reasons that formed the basis of the respondent’s conclusion that the proposed treatments were not reasonable and necessary.
57The respondent submits that its denial notices for each issue in dispute were clear, unequivocal and valid denials. Each denial explicitly detailed medical reasons which referenced the applicant’s medical condition, as well as the submitted and outstanding documentation. It submits that the respondent is not expected to rise to the medical expertise of a physician for these purposes.
58I find the notice denying this treatment plan complies with the requirements of s. 38(8). In the Additional Comments section of the denial notice, the respondent references the applicant’s medical condition, in particular that his injuries are within the MIG. The notice reveals that the respondent’s conclusion was based on a review of the clinical notes and records provided by Trillium Health Partners and all other medical information it then had on file. It informed the applicant that his claim was not subject to the necessity of a s. 44 insurer’s examination, and it invited the applicant to provide any additional medical evidence for its consideration.
59I do not accept the applicant’s submission that the denial notice listed only that the treatment plan was not reasonable and necessary because the insurer engaged with the applicant’s medical condition in the notice’s Additional Comments Section and provided a principled rationale in plain language. Although the respondent subsequently removed the applicant from the MIG, I nonetheless find the explanation was sufficient for the applicant to make an informed decision on whether to challenge the denial.
60Accordingly, I find on a balance of probabilities that the notices sent to the applicant denying the treatment plans above were compliant with s. 38 of the Schedule. The treatment plans are not payable.
Interest
61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payment of benefits is overdue, the applicant is not entitled to interest.
Award
62The 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.
63Since I have found that no payment of benefits is owing, and there is no evidence before me to suggest that the respondent unreasonably withheld or delayed the payment of any benefits, I find that the respondent did not unreasonably withhold or delay the payment of benefits. The respondent is not liable to pay an award under s. 10 of Reg. 664.
ORDER
64Accordingly, I order the following:
i. The applicant is not entitled to income replacement benefits;
ii. The applicant is not entitled to the claimed psychological assessment;
iii. The applicant is not entitled to the claimed physiotherapy services;
iv. As no benefits are owing, the applicant is not entitled to interest or an award.
Released: August 12, 2025
Bruce Stanton
Adjudicator