Michelle Li v. TD General Insurance Company, 2026 CanLII 2274

Citation: Li v. TD General Insurance Company, 2026 ONLAT 24-005228/AABS

Licence Appeal Tribunal File Number: 24-005228/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:

Michelle Li Applicant

and

TD General Insurance Company Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel

For the Respondent: Noura Bagh, Counsel

HEARD: By way of written submissions

OVERVIEW

1Michelle Li, the applicant, was involved in an automobile accident on June 2, 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, TD 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:

i. Are the applicant’s injuries predominantly minor as defined in section 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 $4,028.56 for chiropractic services, proposed by Uheal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated November 7, 2023?

iii. Is the applicant entitled to $2,144.93 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan dated October 17, 2023?

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

v. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is subject to the MIG.

4As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

5The treatment plans are not payable pursuant to section 38.

6As there are no overdue benefits, the applicant is not entitled to interest.

7The applicant is not entitled to an award under section 10 of Regulation 664 because no payments were unreasonably withheld or delayed.

ANALYSIS

Application of the Minor Injury Guideline

8I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG limit.

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.”

10The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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 submits that she has ongoing pain and psychological injuries as a result of the accident. The applicant’s submissions are focused on the respondent’s failure to comply with section 38(8) and 44(1) of the Schedule. The applicant argues that the respondent’s non-compliance with section 38 should result in the applicant’s removal from the MIG.

12I am not persuaded by the applicant’s submission. I find that, based on Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng, Cai”), an improper denial does not result in an applicant being removed from the MIG for the entirety of the claim. Rather, the respondent is prohibited from taking the position that the impairment falls within the MIG with respect to the non-compliant OCF-18s and must pay the costs incurred under those plans until a compliant notice is given.

13I find the applicant has not established grounds for her removal from the MIG and she remains within the MIG because she has not referred me to evidence on this issue. Further, pursuant to Zheng, Cai, she cannot be removed entirely from the MIG as a result of any contraventions of section 38(8), but rather, the respondent would be subject to the shall-pay provision in section 38(11).

Does the applicant have chronic pain with functional impairment or a psychological impairment that warrants removal from the MIG?

14I find the applicant has not met her evidentiary onus to prove that he suffers from chronic pain or a psychological injury as a result of the accident.

15The applicant relies on the treating practitioner’s notes in the OCF-18s, and the pre-screening psychological consultation report dated October 3, 2023, by Crystal Ka Wun Ng, social worker.

16The pre-screening psychological report notes the applicant self-reported pain in the leg, chest, back and neck, with headache, and sleep disturbance, and the applicant is “suffering from post-accident psychological impairment”. While this may be evidence of the applicant’s symptom reporting, it is out of scope for a social worker to diagnose a psychological impairment.

17The respondent submits that the applicant has not met her onus to demonstrate she requires treatment outside of the MIG, and her injuries are predominantly minor injuries. The respondent relies on the section 44 physiatry report, and section 44 psychology report dated April 16, 2024.

18The section 44 physiatry report, prepared by Dr. Yong-Kyong Michael Ko, physiatrist, includes a physical examination, interview, and clinical observations. Dr. Ko notes the applicant’s injuries are minor including sprain/strain injury of bilateral shoulders and lumbar spine, right calf (healed).

19The section 44 psychology report, prepared by Dr. Shahriar Moshiri, psychologist, includes standardized psychological tests, interview and clinical observations. Dr. Moshiri states the applicant “does not have a formal psychological condition resulting from the motor vehicle accident” and her resulting injuries meet the criteria of a minor injury.

20I place less weight on Ms. Ng’s pre-screening psychological report because the report is based on the applicant’s self-reporting, there are no objective testing measures noted in the report, there is no formal diagnosis of a psychological injury or impairment, and there are no notes of the severity of pain experienced as a result of her accident-related impairment.

21I find on a balance of probabilities that the applicant has not met her onus and is subject to treatment within the MIG limit. In review of the evidence, the applicant’s claim of chronic pain or a functional impairment, or a psychological injury is not supported because it is out of scope for a social worker to diagnose a psychological injury and the medical evidence before me does not corroborate that her accident-related injuries warrant removal from the MIG.

Are the treatment plans reasonable and necessary?

22Having found that the applicant is subject to the MIG. I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

23The applicant also makes arguments that the treatment plans are payable pursuant to section 38 of the Schedule. I will now turn to these arguments.

Are the denials compliant with section 38(8) of the Schedule?

24I find the respondent’s explanation of benefit letters dated November 23, 2023, January 25, 2024, and May 7, 2024 are compliant with the requirements under section 38(8) of the Schedule.

25Section 38(8) and section 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 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

26The applicant submits the denial notices are not compliant because the respondent ignored the injuries noted within the OCF-18 dated November 7, 2023 and did not provide medical reasons for the denial. The applicant relies on the OCF-18s, and the respondent’s denial letters dated November 10, 2023, January 25, 2024, and May 7, 2024.

27The respondent submits the treatment was denied on the basis that the applicant was within the MIG and there is no medical evidence to support the applicant’s injuries require treatment beyond the MIG limit.

28Upon review of the evidence and submissions, I find that the respondent’s denial letters satisfy the requirements set out in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT). In T.F. v. Peel, the Tribunal concluded that the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process. While T.F. v. Peel is not binding upon me, I agree with the reasoning in it and its application.

29The denial letter dated May 7, 2024 refers to the treatment plan and amount. The letter refers to the findings of Drs. Ko and Moshiri and notes “there is no compelling evidence of a pre-existing condition that would prevent you from achieving maximum medical recovery” within the $3,500.00 limit, and “there is no compelling evidence of a pre-existing psychological condition that would prevent you from achieving maximal medical recovery” within the $3,500.00 limit.

30The denial letter dated November 10, 2024 refers to the treatment plan and amount. The letter lists the injuries noted in the proposed OCF-18, and “there is no medical evidence to support the psychological impairments […] and that your impairment is not minor.” The letter also refers to an earlier letter dated June 21, 2023 regarding a request for additional medical information and that this information is outstanding as of the date of the correspondence.

31The denial letter dated January 25, 2024 refers to the treatment plan and amount. The letter lists the injuries noted in the proposed OCF-18, and “there is no additional medical evidence to support the psychological impairments identified” and that the treatment plan is not reasonable and necessary. The letter also requests the applicant to attend for an insurer’s examination.

32I find each denial letter clearly states the benefit in dispute, refers to the applicant’s injuries, and the reason for denial. The respondent made requests for additional information, referred to the section 44 reports, and the letters allow an unsophisticated person to understand the denial and make an informed decision on whether to dispute the denial or not.

33In sum, I find the applicant has not established that the respondent’s denial notices, dated November 23, 2023, January 25, 2024, and May 7, 2024 are non-compliant with section 38(8), and therefore it is not payable under section 38(11).

Interest

34Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As no benefits are owed, no interest is payable.

Award

35The applicant sought an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

36The applicant submits that the respondent unreasonably denied the treatment plans. The applicant relies on the clinical notes and records (“CNRs”) of Dr. James Leung, family doctor, and the pre-screen report by Crystal Ka Wun Ng, social worker.

37There are no benefits that have been withheld unreasonably. I find the applicant has not met the onus to prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed the benefits in dispute, and an award is not appropriate in this case.

ORDER

38The applicant is subject to the MIG.

39As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

40The treatment plans are not payable pursuant to section 38.

41As there are no overdue benefits, the applicant is not entitled to interest.

42The respondent is not liable to pay an award.