Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-013368/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:
Yan Chun Guo Applicant
and
Security National Insurance Company Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Anil Hampole, Counsel
For the Respondent: Caleb Lee, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yan Chun Guo, the applicant, was involved in an automobile accident on February 12, 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, Security National 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 a non-earner benefit (“NEB”) of $185.00 per week from February 19, 2022 and ongoing? ii. Is the applicant entitled to $4,069.59 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted June 2, 2022? iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to a non-earner benefit.
4The applicant is not entitled to the treatment plan for $4,069.59 for physiotherapy services.
5The applicant is not entitled to interest as there are no overdue payments.
ANALYSIS
Is the applicant entitled to a non-earner benefit?
6I find the applicant has not met her burden to prove her entitlement to a non-earner benefit.
7Section 12(1) of the Schedule provides that an insurer shall pay NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.
8The applicant submits she suffers pain in her back, neck, right collar bone, right hip bone, arms, waist and headaches, and psychological reactivity to stimuli related to the accident. These injuries prevent her from completing daily tasks efficiently. The applicant relies on the OCF-3/Disability Certificate, a psychological consultation report, and a psychological assessment.
9I find that the Disability Certificate does not establish that the applicant was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident because it does not provide details of pre-accident activities performed by the applicant and how they are impacted by her injuries. Mr. Ahmed Afifi, physiotherapist notes in the OCF-3 under Part 6 of the form, the section for “Disability Tests and Information”, the applicant suffered a complete inability to carry on a normal life and the recovery period is listed as more than 12 weeks. The Disability Certificate indicates the applicant was not working, not a primary caregiver, not attending school, and suffers substantial inability to perform housekeeping services normally performed before the accident.
10I place little weight on the psychological consultation report dated March 30, 2022, supervised by Dr. Sharleen McDowall, registered psychologist, because the report does not refer to objective testing and notes the applicant “needs to undergo a full psychological assessment battery including psychometric testing … to determine her clinical diagnosis …”. The report provides no insight of the applicant’s pre-accident activities of daily living, or of the frequency and time commitments of her pre-accident activities as required by Heath.
11The psychological assessment report dated August 15, 2022, also supervised by Dr. McDowall, states the applicant previously completed household chores and gardening. The report states, due to the accident-related injuries she “struggles to do laundry and other tasks”, however, the report does not state how her engagement in these activities has changed as a result of the accident. I find the report provides little value because it does not identify the activities she values or provide evidence of the frequency and the time commitments of her pre-accident activities as required by Heath.
12In the absence of this information, having considered the evidence and submissions, the applicant has failed to meet her burden of proving entitlement to NEB.
13I find the applicant has not met her onus of establishing entitlement to the non-earner benefit.
Denial of Non-Earner Benefits
14I find that the applicant has not established that the non-earner benefit is payable due to non-compliance with s. 36(4) of the Schedule.
[15] Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed OCF-3/Disability Certificate for non-earner benefits, the insurer shall: a) Pay the specified benefit; b) Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or c) Send a request to the applicant under s. 33(1) or s. 33(2).
16Pursuant to s. 36(6), if the insurer fails to comply with subsection (4) within ten business days, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4)(b), on the day the insurer gives the notice.
17The applicant submits the respondent did not meet the requirements of s. 36(4)(b) because they failed to provide clear and sufficient medical reasons in the explanation of benefits letter dated March 17, 2022. The applicant relies on the denial letters as evidence.
18The respondent submits the letters dated March 17, 2022 and March 18, 2022 satisfied the requirements under s. 36(4). The respondent also submits another denial letter dated July 29, 2022 was sent to the applicant.
19I find the letters clearly state the benefits in dispute, refers to the insufficient medical documentation by the applicant, and the denial was based on the applicant’s minor injury. The denial states the applicant is within the MIG, and that a s. 44 insurer’s examination is being scheduled for the applicant. I find the reasons provided by the respondent were clear and allow an unsophisticated person to make an informed decision whether to dispute the decision.
20I find the applicant has not established that the non-earner benefit is payable due to non-compliance with s. 36(4)(b) of the Schedule.
Is the applicant entitled to the treatment plan in the amount of $4,069.59 for physiotherapy services?
21I find on a balance of probabilities the applicant has not demonstrated that the physiotherapy services treatment plan in dispute is reasonable and necessary.
22To receive payment for an OCF-18 under sections 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 the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
23The physiotherapy treatment plan in dispute was submitted June 2, 2022, prepared by Mr. Ahmed Afifi, physiotherapist, with Total Recovery Rehab Centre. The applicant did not submit what the plan intends to address. The provider proposed 32 sessions of 1 hour each for therapy, 16 sessions of a half hour each for therapy, 16 counts of the providers travel time, assessment and documentation, totalling $4,069.56. The applicant only included page eight of the treatment plan in her evidence and did not include the goals of the treatment plan or how progress will be measured.
24The applicant makes no submissions regarding the treatment plan.
25The respondent submits the applicant has not experienced a decline or change in her symptoms and relies on the s. 44 general practitioner report prepared by Dr. Presvelos.
26I find the applicant has fallen short of meeting her onus to establish that she has physiological impairments. Notably, the applicant argues she has physiological and related psychological impairments, however, she has not submitted evidence to support the need for physiotherapy. There is no medical evidence corroborating physiological complaints and I note that Dr. Presvelos indicates in the s. 44 report that the applicant was not presenting any significant accident-related physiological symptoms that warrant the disputed physiotherapy treatment.
27As the medical evidence before me does not corroborate the need for physiotherapy, I find the applicant has not met her burden.
28As a result, I find that the applicant has not established on a balance of probabilities that she is entitled to the disputed treatment physiotherapy treatment plan.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having determined that no benefits are payable, it follows that no interest is payable.
ORDER
[30] For the reasons outlined above, I find that: i. The applicant is not entitled to a non-earner benefit. ii. The applicant is not entitled to the treatment plan in dispute. iii. As no benefits are payable, the applicant is not entitled to interest.
31The application is dismissed.
Released: September 4, 2025
Aric Bhargava Adjudicator