Citation: Xie v. Co-operators General Insurance Company, 2026 ONLAT 24-009859/AABS

Licence Appeal Tribunal File Number: 24-009859/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:

Yiting Xie

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel

For the Respondent: Peter Durant, Counsel

HEARD: In Writing

OVERVIEW

1Yiting Xie, the applicant, was involved in an automobile accident on August 7, 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, Cooperators General 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:

1. 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 (“the MIG”) limit?
2. Is the applicant entitled to a non-earner benefit of $185.00 per week from September 4, 2023, to date and ongoing?
3. Is the applicant entitled to $4,348.56 for chiropractic services, proposed by Uheal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated June 6, 2024?
4. Is the applicant entitled to $2,144.93 for a Psychiatric Assessment, proposed by Somatic Assessment and Treatment Clinic in a treatment plan dated January 24, 2024?
5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries are within the MIG.

4As the applicant remains within the MIG it is not necessary to determine if the treatments plans are reasonable and necessary.

5The applicant is not entitled to a non-earner benefit.

6Neither interest nor an award are payable.

7The application is dismissed.

ANALYSIS

Is the applicant removed from the Minor Injury Guideline and the $3,500 treatment limit?

8The applicant is held to the MIG.

9Section 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.”

10An 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.

11The applicant has chosen not to make submissions “on the applicability of MIG, but will dispute applicability of the MIG with respect to the denied substantive issues.”

12The onus is on the applicant to prove she should be removed from the MIG. Without any specific submissions on which ground she seeks removal and as I have not been directed to medical evidence supporting non-minor impairments, I find she has not, on the balance of probabilities, established entitlement to be removed.

13As I have found the applicant to be held within the MIG, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.

Is the applicant entitled to a non-earner benefit?

14The applicant is not entitled to a non-earner benefit.

15Section 12(1) provides that an insurer shall pay an 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) 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, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

16The applicant has chosen to make a sole submission regarding a substantive entitlement to a non-earner benefit, and that would be because the applicant has filed an OCF-3 from a medical professional which indicates the applicant is disabled, this should be sufficient for the insurer.

17The respondent counters that the only evidence received by the respondent was the OCF-1 and OCF-3, completed by Chiropractor Dr. Tavares three days post-accident. No medical records have been produced.

18I find the applicant has not provided evidence nor submissions as to the applicant’s complete inability to carry on a normal life. An OCF-3 alone does not establish whether the applicant has sustained a complete inability to lead a normal life, nor is it medical evidence on its own of injuries sustained in the accident.

19In summary, although the onus does remain with the applicant, I find that the applicant has not provided any medical evidence to support her claim for eligibility for a non-earner benefit. Therefore, I find the applicant has not, on the balance of probabilities, met her onus to establish entitlement to a non-earner benefit.

Is the applicant entitled to the issues in dispute on procedural grounds?

20The applicant states, in paragraph 3 of her submissions, that “a trial by written hearing is limited to the applicant’s onus to disprove on the balance of probabilities that the reasons provided by the respondent in section 54 statutory denial notices were flawed.”

21The applicant states that the denials offered by the insurer in denying the issues in dispute are insufficient. The applicant argues that the medical professionals submitting the OCF-18’s in dispute have ticked the box indicating that the injuries suffered were non-minor injuries, and therefore not subject to the MIG.

22The applicant further argues that the denial reasons are flawed, arbitrary, statutory deficient and mere conjectures.”

23The respondent argues that the applicant has “completely misstated the law in her written submissions” and that the onus is on the applicant to prove her entitlement to benefits. “She does not need to disprove reasons, she needs to prove entitlement.”

24Examining first the denial letters regarding issues 3 and 4, I have reviewed the denial letters offered by the insurer to the applicant. I find the letters to be compliant with s. 38(8) of the Schedule.

25The respondent sent two letters, dated June 20, 2024 and October 18, 2024, clearly outlining the treatment plan in dispute (issue 3 and 4), the amount that the insurer was willing to fund (none), and the medical reasons and other reasons for the denial. In these letters, they further pointed out that the respondent believed the applicant’s injuries to be minor, and they have not received further medical records identified in the letters above.

26I find the denial letters of June 20, 2024 and October 18, 2024, regarding issues 3 and 4, compliant with the Schedule.

27Turning to issue 2, the insurer sent a letter March 6, 2024 requesting Clinical Notes and Records from 3 years preceding the accident to that date, and a decoded OHIP summary from 3 years preceding the accident to that date. The respondent submits the applicant has not submitted the requested information.

28The respondent further submits that they have made s. 33 requests for medical evidence of the applicant, and those requests have been ignored. Therefore, as per s. 33(6) the insurer is not liable to pay a benefit in respect during which the injured person fails to comply.

29Section 33(1)(1) of the Schedule says the applicant shall, within 10 days after receiving a request from the insurer, provide the insurer with any information reasonably required to assist the insurer in determining entitlement.

30Section 33(6) outlines the penalty for non-compliance, where the Schedule says “the insurer is not liable to pay a benefit in respect of any period during which the injured person fails to comply.”

31On April 5, 2024, the respondent sent a follow up letter saying “We have not received the information requested.” They informed the applicant that medical and rehabilitation benefits would not be paid until the applicant complies with the document request.

32The respondent submits that they are still waiting for medical evidence to support the applicant’s claim. The applicant has not made submissions indicating medical records were provided.

33In summary, I find the insurer has acted in compliance with the Schedule, and that the applicant has an obligation to submit medical evidence if she wants to receive a non-earner benefit.

34While the applicant may disagree with the reasons provided for the denials, I note that the applicant has not provided any medical evidence to either the respondent or this Tribunal to support their claim.

35In summary, the applicant has not provided any medical evidence to the respondent, nor to the Tribunal, in support of her claims. I find the denial letters to the applicant were compliant with the Schedule.

36I do not agree with the applicant that to prove entitlement to benefits, the applicant’s onus is merely to disprove the reasons provided by the respondent. The applicant has provided no authority to support this interpretation, nor do I find that it is remotely accurate based on a plain reading of the Schedule.

37For these reasons, I find the applicant has not met her onus to establish entitlement to the issues in dispute on the basis of procedural errors by the respondent.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

39The 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.

40The applicant has not made submissions regarding an award, and I do not find that the insurer has unreasonably withheld or delayed the payment of benefits. Therefore, no award is payable.

ORDER

41The application is dismissed.

i. The applicant’s injuries are within the MIG.

ii. As the applicant remains within the MIG it is not necessary to determine if the treatments plans are reasonable and necessary.

iii. The applicant is not entitled to a non-earner benefit.

iv. Neither interest nor an award are payable.