Seung Hwan Song v. Economical Mutual Insurance Company, 2025 CanLII 97763

Licence Appeal Tribunal File Number: 23-015369/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:

Seung Hwan Song

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Ivy So, Paralegal

For the Respondent: Lora Castellucci, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Seunh Hwan Song was involved in an automobile accident on September 21, 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 Economical Mutual 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 $1,187.25 for physiotherapy services, proposed by Toronto Medical Centre in a treatment plan/OCF-18 (“plan”) dated December 22, 2021?

iii. Is the applicant entitled to $1,384.70 for physiotherapy services, proposed by Toronto Medical Centre in a plan dated February 23, 2022?

iv. Is the applicant entitled to $2,144.93 for psychological services, proposed by Toronto Medical Centre in a plan dated March 30, 2022?

v. Is the applicant entitled to $1,748.05 for a biopsychosocial assessment, proposed by Toronto Medical Centre in a treatment plan dated February 9, 2022?

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The plans from ii-v are payable, once incurred, pursuant to s.38(11) of the Schedule to the applicant because the respondent did not comply with section 38(8) of the Schedule.

4Issue iii. has been partially approved by of the respondent for $1,046.24. The remaining amount is payable to the applicant once incurred.

5The applicant is entitled to interest in accordance with s. 51 of the Schedule.

6The respondent is not liable to pay an award.

ANALYSIS

7The applicant’s hearing submissions focus almost exclusively on the sufficiency of the respondent’s reasons for denying the disputed OCF-18’s.

8The applicant argues that the denial notices issued by the respondent do not comply with the requirements of section 38(8) of the Schedule, because they fail to provide the required medical reasons. Due to the deficiency of the denials, the applicant argues that all the disputed plans must be funded, relying on s. 38(11) of the Schedule.

9I find that the respondent’s submissions regarding the sufficiency of its denial are broad, vague, and highly generalized. They did not specifically address the medical or any other reasons given for the denial of each of the OCF18’s in dispute. Essentially, the respondent asserts that the denials are compliant with the Schedule. The respondent argues that it is sufficient for the denials to say that the applicant’s injuries fall within the MIG, particularly because it had little medical documentation to refer to or base its reasons on. The respondent points out the applicant only submitted 1 OCF-3, the disputed OCF-18s and no clinical notes and records to support his claim. As a result, of the limited amount of medical documentation provided by the applicant, the respondent submits that its medical reasons were sufficient. I do not agree.

10The standard for sufficient notice is contained in T.F. v. Peel Mutual Insurance Company. In her decision, Executive Chair Lamoureux states, at paragraph 19:

[…] an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

11I have reviewed each of the denials provided by the respondent and find they do not meet the standard set in T.F. v Peel Mutual Insurance Company. The January 7, 2022 denial of the OCF-18 for physiotherapy services in the amount of $1,187.25 states “we are unable to contact you and have not received your application for accident benefits as such we were unable to request from you to support your claim we have made our request for information including medical documentation outlining your accident related injuries as such we are unable to determine if the treatment outlined in the subject OCF 18 is reasonable and necessary for recovery of impairments that are accident related.”

12The May 3, 2022 denial of the OCF-18s for a biopsychosocial assessment in the amount of $ 1,748.05, $1,384.70 for physiotherapy services, and , 2,144.93 for psychological services states “after reviewing the medical file there does not appear to be any pre-existing condition that would prevent the claimant from achieving maximal medical recovery if subjected to the $3,500.00 limit”. The respondent also stated that it “awaits clinical notes records on behalf of your practitioner to address if further assessment or treatment necessary to assist with your medical recovery”.

13The October 6, 2022, letter from the respondent states that it has re-adjudicated the plan in issue iii dated February 23, 2022, agreeing to pay the applicant $1,046.24 namely, chiropractic therapy for $507.72, chiropractic therapy for $338.52 and the documentation preparation of $200.00.

14I find that the respondent’s denials related to issues ii-v do not comply with s. 38(8) of the Schedule. The denials state that the applicant’s injuries fall within the MIG but fail to explain how the respondent came to that conclusion. The denials do not clearly refer to the medical documents the respondent reviewed in reaching its decision. They also fail to identify any information about the applicant’s condition despite this information being provided in the initial OCF-3 submitted by the applicant. For these reasons, I find that the denials do not meet the minimum standard required by the Schedule.

15The May 3, 2022, denial states that the applicant does not have a pre-existing condition that would remove her from the MIG. This is a conclusion rather than a medical reason. The respondent failed to provide any context or explanation for how it came to this conclusion or provide any context as it why it was relevant to its decision. The information provided by the respondent was therefore not sufficient to enable an unsophisticated person to understand the denial or to decide whether to dispute it.

16The respondent also fails to tell the applicant what information it needs to properly assess whether the applicant’s injuries fall outside the MIG. The denial letter of May 3, 2022, states that it awaits CNRs from the applicant’s medical practitioner, it does not however make a specific request for those records or provide an explanation as it why the CNRs are relevant or necessary for the respondent to makes it determination. Again, I find this does not meet the minimal standard set out by Executive Chair Lamoureux in T.F. v. Peel Mutual Insurance Company, as it is something that an unsophisticated person would not be able to understand.

17In summary, I find that the OCF-18s listed in issues ii-v are payable once incurred, due to the respondent’s non-compliance with s. 38(8) of the Schedule.

Interest

18Pursuant to s. 51 of the Schedule, interest is payable on the overdue payment of benefits once incurred.

Award

19The applicant seeks an award because of the respondent withheld , deprived and intentionally withheld benefits from the applicant. I am not willing to grant an award to the applicant because there is no evidence that the respondent withheld intentionally any benefits to the applicant in this case.

ORDER

20The treatment plans are payable pursuant to s. 38(11) of the Schedule to the applicant because the respondent did not comply with section 38(8) of the Schedule. I order that the plans identified as issues ii- v are payable once incurred.

21The plan issue iii has been partially approved of the respondent for $1,046.24. The remaining amount is payable to the applicant once incurred.

22Interest is payable in accordance with s. 51 of the Schedule.