Licence Appeal Tribunal
Citation: Thai v. Definity Insurance Company, 2026 ONLAT 24-009611/AABS Licence Appeal Tribunal File Number: 24-009611/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:
Thien Van Thai Applicant
and
Definity Insurance Company Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Rakesh Sharma, Counsel
For the Respondent: Elbert Li, Counsel
HEARD: By way of written submissions
OVERVIEW
1Thien Van Thai, the applicant, was involved in an automobile accident on August 10, 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, Definity 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 $2,144.93 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan/OCF-18 submitted on April 3, 2024?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The parties agree that the MIG limits have not been exhausted and that $3,397.25 has been paid to date.
RESULT
4For the reasons below, I find that:
- The applicant's injuries are predominantly minor; thus, the MIG applies.
- Because the applicant is subject to the MIG, it is unnecessary for me to consider whether the treatment plans are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.
- The treatment plans are not payable under s. 38(11) of the Schedule.
- The applicant is not entitled to interest or an award.
ANALYSIS
Are the applicant's injuries predominantly minor?
5I find that the applicant's accident-related impairments are predominantly minor and are therefore subject to the MIG limit.
6Section 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."
7An insured may be removed from the MIG if he can establish that his accident-related injuries fall outside of the MIG or, under s. 18(2), that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if he is 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.
8The applicant states that under s. 38 of the Schedule, a plan that meets s. 38(3) is considered reasonable and necessary unless the respondent disagrees and provides specific medical and other reasons in a denial notice under s. 54. The applicant argues that his only burden at this hearing is to disprove the respondent's reasons for denial on a balance of probabilities, not to address new grounds in the respondent's submissions.
Section 38 of the Schedule
9Section 38(3) of the Schedule sets out procedural requirements for submitting a Treatment and Assessment Plan, including identifying goods and services, stating the clinical rationale, and providing health professional certification.
10Section 38(8) requires insurers to notify applicants in writing of denied treatment plans within the legal timeframe, including the reasons for denial. Section 38(11) provides a remedy for procedural rule breaches: the disputed treatment may be payable during the period of non-compliance.
11The applicant submits that he satisfied s. 38(3) because the disputed OCF-18 was completed by a regulated health professional and included a stated clinical rationale. He argues that, absent meaningful reasons under s. 38(8), the plan should be deemed payable, which, in turn, supports his removal from the MIG. He further says his onus at this hearing is limited to disproving the reasons set out in the insurer's denial.
12The respondent submits that s. 38 does not assist the applicant in exiting the MIG. It argues that the Explanation of Benefits ("EOB") provided timely, clear reasons, namely that the applicant's reported symptoms fall within the minor-injury definition, that there is no medical documentation of a psychological diagnosis, that no pre-existing condition was identified, and that it expressly stated that the MIG applies. The respondent also relies on Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 to emphasize that s. 38(11) does not operate to remove a claimant from the MIG.
13The respondent further argues that an OCF-18 alone does not establish entitlement to a psychological assessment. Tribunal jurisprudence requires corroborating, contemporaneous medical evidence demonstrating the need for the proposed goods and services; treatment plans, standing alone, are not compelling evidence of reasonableness or necessity.
14I accept the respondent's position on the operation of s. 38. Section 38(3) is procedural. It ensures a complete application but does not create a substantive presumption in favour of approval or removal from the MIG. Section 38(8) requires the insurer to give meaningful reasons when denying a plan, and s. 38(11) provides a plan-specific deeming remedy where those reasons are not properly given. Neither provision relieves the applicant of the ultimate onus to demonstrate, with medical evidence, that his impairments fall outside the MIG.
15Applying these principles to the record, I find the insurer's May 2024 EOB is a compliant s. 38(8) notice. It identifies each disputed service, states that the MIG applies, and provides reasons for the denial, including the lack of medical documentation supporting a psychological diagnosis. These reasons were sufficiently clear to allow the applicant to understand the basis for the refusal and decide whether to challenge it; accordingly, s. 38(11) is not engaged.
16The applicant has not presented any medical evidence establishing a non-minor psychological condition, chronic pain with functional impairment, or a pre-existing condition under s. 18(2). Instead, he relies primarily on s. 38 procedural arguments and the treatment plan. The Tribunal has consistently held that a treatment plan, without corroborating medical evidence, is insufficient to warrant removal from the MIG. On this record, the applicant has not met his evidentiary burden.
17Accordingly, on a balance of probabilities, I find that the applicant remains subject to the MIG.
Section 54 of the Schedule
18Section 54 of the Schedule requires an insurer that refuses or reduces a benefit to notify the insured in writing, including the insured's right to dispute. This ensures claimants receive clear, timely notice of denials, helping them understand the insurer's position and pursue disputes if desired.
19The applicant argues that s. 54 requires the insurer to provide all reasons for denial in writing, and that the insured need not respond to new arguments in the respondent's submissions. He cites Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318, stating that boilerplate reasons are no reasons at all, and claims the respondent's vague and speculative reasons violate s. 38(8) and s. 54.
20I do not accept the applicant's interpretation of s. 54. The section requires the insurer to give a clear denial and to inform the insured of the right to dispute it. It does not prevent the respondent from making submissions at a hearing or restrict future submissions to the wording of the denial letter. The applicant has provided no authority for the proposition that an insurer cannot raise additional arguments during the process, and I find none in s. 54's text or purpose. The fairness owed at the hearing is distinct from the insurer's notice obligations.
21Having reviewed the May 9, 2024, denial letter and EOB, I find the respondent complied with s. 54. The denial letter stated the MIG applied, outlined the insurer's reasons, including the lack of medical evidence of psychological impairment, and informed the applicant that he could dispute the refusal at the Tribunal. The respondent was entitled to make further submissions at the hearing, including addressing the applicant's MIG and s. 38 arguments. Nothing in the Schedule limits this entitlement.
22Accordingly, on a balance of probabilities, I find that the respondent met its obligations under s. 54 of the Schedule, and the applicant's procedural objections do not assist him.
Physical or Psychological Impairments
23I find, on a balance of probabilities, that the applicant has not established that his accident-related injuries fall outside the MIG. The record lacks persuasive medical documentation of a major injury or clinical findings from health professionals supporting a psychological impairment.
24The applicant relies primarily on the injuries listed in the disputed plan, including isolated phobia, headaches, nightmares, non-organic sleep disorder, irritability, and anger. He submits that these impairments do not fall within the statutory definition of "minor injury" under s. 3 of the Schedule and further argues that the respondent failed to meaningfully compare them to that definition in its denial.
25The respondent submits that the applicant has failed to meet his burden of proving that his injuries fall outside the MIG. It points to the OCF-3 completed shortly after the accident, which documents injuries consistent with WAD II and with sprains/strains of the thoracic spine, lumbar spine, and shoulder. The respondent further asserts that there is no medical evidence of a psychological injury or condition.
26I accept the respondent's submissions. The OCF-3 dated August 26, 2023, signed by a physiotherapist, identifies WAD II and sprain/strain injuries. These impairments are expressly included in the minor-injury definition. There is no medical evidence before me, from the applicant's family physician, treating providers, or any mental-health professional, demonstrating psychological complaints, diagnosis, functional impairment, or referrals for psychological treatment. The record contains no clinical notes or records, no psychotherapy or counselling records, and no documented psychological diagnosis.
27The applicant's main argument for exiting the MIG is the psychological component set out in the disputed plan and its accompanying pre-screening summary. However, the pre-screening comments appear to be based solely on the applicant's self-report, with no psychometric testing, corroborating records, or documented diagnosis. There is no indication that the assessor reviewed any clinical records or obtained objective data. Without such evidence, this evidence does not establish the presence of a psychological impairment of a nature or severity that would remove the applicant from the MIG.
28The Tribunal has consistently held that treatment plans and self-reported symptoms, standing alone, do not constitute sufficient medical evidence to justify removal from the MIG. Applicants must provide medical documentation demonstrating a non-minor impairment. Here, aside from the disputed treatment plan, the applicant has submitted no medical evidence to corroborate psychological symptoms, chronic pain, or any other basis for MIG removal.
29On this record, I am not persuaded that the applicant has established a psychological impairment. There is no evidence of post-accident psychological treatment, family doctor involvement, referrals, or diagnoses. The plan at issue seeks funding for an assessment, not treatment, and the mere request for an assessment does not, in and of itself, demonstrate the existence of an impairment outside the MIG. The applicant must first meet the evidentiary burden of proving a non-minor injury, which he has not done.
30Accordingly, on a balance of probabilities, I find that the applicant's impairments are predominantly minor and that he remains subject to the MIG limit.
Is the applicant entitled to the disputed treatment plan?
31Given my finding that the applicant has not established injuries outside the MIG, it is unnecessary to assess the psychological assessment's substantive reasonableness and necessity under s. 15.
32To be thorough, I address the applicant's procedural submission that the plan is nevertheless payable under s. 38(11) because the insurer failed to comply with s. 38(8).
33I do not accept this submission. The insurer's May 9, 2024, EOB constitutes a compliant s. 38(8) Notice: it identified each disputed good and service, stated that the insurer did not agree to fund the psychological assessment, expressly indicated that the MIG applies, and provided the medical and other reasons for the determination, including the absence of medical documentation supporting a psychological diagnosis and the absence of a pre-existing condition. These reasons were sufficiently clear to allow the applicant to understand the basis of the refusal and decide whether to challenge it. Because the s. 38(8) Notice is compliant, s. 38(11) is not engaged, and the plan is not deemed payable on procedural grounds.
Interest
34Interest applies to the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to the disputed benefit and remains in the MIG, no overdue payment arises from this decision. Therefore, no interest is payable.
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.
36An award requires a finding that the insurer unreasonably withheld or delayed payment. Where no disputed benefits are payable, the Tribunal generally does not grant an award. Because I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.
ORDER
37For the above reasons, it is ordered that:
i. The applicant's injuries are predominantly minor; thus, the MIG applies.
ii. Because the applicant is subject to the MIG, it is unnecessary for me to consider whether the treatment plans are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.
iii. The treatment plans are not payable under s. 38(11) of the Schedule.
iv. The applicant is not entitled to interest or an award.
Released: February 10, 2026
Harouna Saley Sidibé Adjudicator