Licence Appeal Tribunal File Number: 23-013227/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:
Anita Ka Yee Zeng
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Rakesh Sharma, Counsel
For the Respondent:
Diana Oliveira, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Anita Ka Yee Zeng, the applicant, was involved in an automobile accident on February 17, 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, 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:
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?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated September 21, 2022?
Is the applicant entitled to $3,701.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 ("treatment plan") dated October 3, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
3The respondent submits that its preliminary issue with respect to the applicant's non-attendance at s.44 examinations set out in the Case Conference Report and Order ("CCRO") is moot, because the applicant has attended a s.44 examination.
RESULT
4I find that:
The applicant's injuries are predominantly minor and the applicant is subject to the MIG and its $3,500.00 funding limit.
As the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
The treatment plans are not payable under s.38(11).
The applicant is not entitled to an award.
The applicant is not entitled to interest.
PROCEDURAL ISSUES
Applicant's request to strike the s.44 psychological report
Respondent's request to strike parts of the applicant's submissions
5The applicant submits that the s.44 psychological report of Dr. Sharleen MacDowall, psychologist, dated May 28, 2024, should be struck because the respondent did not ask for a s. 44 examination at the time the treatment plans were denied, instead asking for a s.44 examination after the application was filed in order to bolster its case.
6The respondent counters that the applicant did not raise any objections at the time the s.44 examination was first requested on December 18, 2023, in her case conference brief, or at any time before her submissions for this hearing. The respondent argues that paragraphs 5-18 of the applicant's submissions which discuss the applicant's request to strike Dr. MacDowall's s.44 report be striken and not considered by the Tribunal.
7I decline to strike paragraphs 5-18 of the applicant's submissions because the s.44 examination took place after the case conference, and because the respondent had an opportunity to reply in its responding submissions.
8The respondent further argued that the applicant attended the third scheduled instance of the examination without protest on May 16, 2024. The respondent further submits that it has an obligation to continually adjust the applicant's file, and that the respondent may request a s.44 assessment to do so, including in a case where a benefit has been previously denied.
9I am not persuaded by the applicant's argument that s.38(10) of the Schedule requires the respondent to provide an NOE within ten days of a treatment plan being submitted. S.38(10) provides:
If the insurer has not agreed to pay for all goods, services, assessments and examinations described in the treatment and assessment plan or believes that the Minor Injury Guideline applies to the insured person's impairment, the notice under subsection (8) may notify the insured person that the insurer requires the insured person to undergo an examination under section 44.
10As the applicant acknowledges in her reply submissions, the use of the word "may" is permissive, and allows the insurer to notify the applicant that it requires them to attend an examination. Further, the applicant has not directed me to any legislative authority or case law to support her argument that the respondent is precluded from issuing s.44 notices after the ten-day period specified in s.38(8).
11While I agree with the applicant that the April 2, 2024 Notice of Examination ("NOE") was not in compliance with s.44(5) because it did not identify the applicant's injuries or the goods and services sought in the treatment plans in dispute, the applicant has not directed me to any evidence that she found the notices to be unclear or confusing, and the applicant eventually attended the May 16, 2024 s.44 examination without objection.
12In my view, the applicant had the option to refuse to attend the s.44 examination or to raise an objection prior to the examination. As the applicant participated in the s.44 examination on May 16, 2024 without protest, I decline to strike Dr. MacDowall's s.44 report.
ANALYSIS
Applicability of the MIG
13I find that the applicant has not established that her accident-related injuries fall outside of the MIG.
14Section 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. 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."
15An 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 injury or 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.
16The applicant submits that she should be removed form the MIG because she sustained a psychological impairment as a result of the accident. The applicant relies on the treatment plan for a psychological assessment submitted on September 21, 2022, the treatment plan for psychological services submitted on October 3, 2022, and the psychological assessment dated September 6, 2022, all prepared by Bruce Cook, psychological associate.
17The respondent argues that the applicant has not met her onus to prove that she has sustained a psychological impairment as a result of the accident, because the applicant has not provided any objective medical evidence to support Mr. Cook's treatment plans and psychological assessment report. The respondent relies on the clinical notes and records ("CNRs") of the applicant's family doctor, the applicant's OHIP summary report, and the s.44 report of Dr. MacDowall.
18The respondent further argues that Mr. Cook's report should be given no weight, in part because he is has not been designated as an expert for this hearing and is not a medical doctor, and in part because his report does not set out the medical evidence, if any, that was reviewed in preparation of the report, and it relies on statements of the applicant which are not corroborated by objective medical evidence.
19I agree with the respondent. Mr. Cook's qualifications and experience are particularly relevant in the present case, because he is referred to by both parties as "Dr. Cook," and a "psychologist," while Mr. Cook refers to himself as a "psychological associate" and "psychotherapist." Further I find the summary paragraph of Mr. Cook's qualifications to be insufficiently detailed to consider him an expert for the purposes of this hearing.
20Additionally, as the respondent notes, Mr. Cook does not indicate whether the clinical interview was conducted in person or virtually, or identify which, if any of the applicant's medical records were reviewed. He noted that the assessment was not an "independent medical examination", rather an "assessment for treatment" to identify the applicant's current psychological state and whether certain treatment options would be appropriate. Finally, the applicant's reports of her physical injuries, pain, and functional limitations are not corroborated by any medical or other evidence available for this hearing.
21For these reasons, I assign Mr. Cook's report little weight.
22I assign more weight to the s.44 report of Dr. MacDowall, dated May 28, 2024, because she conducted an in-person clinical interview and reviewed the applicant's medical records, in addition to administering psychometric testing. Dr. MacDowell opined that the applicant did not present with an accident-related psychological condition, and that her psychological symptoms fell within the sub-clinical range.
23The applicant argues that she should be removed from the MIG because she submitted two treatment plans which comply with s.38 of the Schedule in which Mr. Cook checked the box marked "no" in response to whether the applicant's injuries can be treated within the MIG. The first, dated October 4, 2022, seeks a psychological assessment, and the second, dated October 10, 2022, for psychological services, which also contained a pre-screening assessment in which Mr. Cook opined that the applicant met the diagnostic criteria for a moderate depressive episode and specific phobia.
24I agree with the respondent that the applicant has not provided any medical evidence to corroborate her claim. I find that the evidence reveals that the applicant's first visit to her family physician, Dr. Grace Hue Co Trinh, after the accident, was more than 18 months later on September 29, 2023, which is corroborated by the applicant's OHIP summary. Further, there are no references to the accident or complaints of psychological symptoms in Dr. Trinh's CNRs and the applicant did not direct me to any evidence from any other treatment provider to corroborate her claim.
25The applicant takes the position that the applicant should be removed from the MIG because the treatment plans are compliant with s.38(3) and should therefore be deemed reasonable and necessary. However, s.38(3) merely sets out the procedural requirements and the Schedule contemplates that approval of a treatment plan is not automatic, and an insurer may deny treatment plans, as evidenced by the provisions in s.38(8) setting out the requirements for an insurer to notify the applicant of its decision to deny benefits.
26As noted above, the onus is on the applicant to prove on a balance of probabilities that she has sustained a psychological impairment which would warrant her removal from the MIG. In the present case, absent any medical or other evidence to corroborate the applicant's self-reports to her assessors, I find insufficient basis for a finding that the applicant has sustained an accident-related psychological impairment that warrants her removal from the MIG.
27Accordingly, the applicant is subject to the MIG and its $3,500.00 funding limit.
28As I have found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
S.38
29Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services tonot be reasonable and necessary.
30If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall 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 a notice described in subsection (8).
31The applicant argues the treatment plans are payable under s.38(11) because the October 4, 2022 Explanation of Benefits ("EOB") denying the treatment plan for a psychological assessment, and the October 10, 2022 EOB denying the treatment plan for psychological services, do not comply with s.38(8) because they do not provide sufficient medical reasons for the denial. The respondent argues that the denial letters are compliant with s.38(8).
32The EOBs contain identical wording, and I find that they are both compliant with s.38(8). I find the EOBs to be clear and unequivocal denials. They set out the specific benefit that is being denied, reference the MIG, and while they do not identify the applicant's injury, both EOBs contain requests for specific medical records to assist the respondent in determining whether the applicant's injury is outside of the MIG. As such, I find that the EOBs contain sufficient information to allow an unsophisticated person to decide whether to dispute the denial.
33Therefore, I find that the applicant is not entitled to $2,200.00 for the treatment plan for a psychological assessment submitted on September 21, 2022, nor is she entitled to $3,701.88 for the treatment plan for psychological services, submitted on October 3, 2022.
Interest
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.
Award
35The 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. As no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
36I find that:
The applicant's injuries are predominantly minor and the applicant is subject to the MIG and its $3,500.00 funding limit.
As the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
The treatment plans are not payable under s.38(11).
The applicant is not entitled to an award.
The applicant is not entitled to interest.
Released: September 15, 2025
__________________________
Kathleen Wells
Adjudicator