Citation: He v. Co-operators General Insurance Company, 2026 ONLAT 24-009815/AABS

Licence Appeal Tribunal File Number: 24-009815/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:

Manqiu He

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Ryan Olson, Paralegal

For the Respondent:

Peter Durant, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Manqiu He, 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, Co-operators 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 (“MIG”) limit?

2. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from November 1, 2023, to date and ongoing?

3. 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?

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

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

RESULT

3After reviewing both parties’ submissions and evidence, I find as follows:

1. The applicant sustained a minor injury and is subject to treatment within the MIG limit. He is not entitled to the OCF-18 in dispute.

2. The applicant is entitled to payment of an IRB in the amount of $400.00 per week from November 1, 2023, to March 20, 2024, plus interest because I find the respondent did not comply with s. 36(4) of the Schedule.

3. The applicant is not entitled to an award.

ANALYSIS

The applicant sustained a minor injury which is treatable in the MIG.

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”

5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on a balance of probabilities that his accident-related impairments fall outside of the MIG.

6The applicant argues that he should be removed from the MIG because he sustained a psychological impairment as a result of the accident. He relies on a disability certificate (“OCF-3”) dated August 22, 2023, completed by Dr. Tavares, a CNR of a walk-in-clinic dated September 8, 2023, and a psychological consult report completed by Crystal Wun, social worker dated September 28, 2023.

7The respondent submits that the applicant has not met his onus in proving that he sustained any impairments which would remove him from the MIG. It asserts that the single CNR relied upon by the applicant is insufficient to support that he sustained a psychological impairment as a result of the accident which would warrant MIG removal. It submits that the applicant has not seen a single doctor since September 8, 2023. Finally, the respondent requests that I draw an adverse inference from the applicant’s failure to comply with the Tribunal’s case conference report and order which ordered him to produce various records.

8I find the applicant has not established that he sustained a psychological impairment as a result of the accident for the following reasons.

9First, I find the single CNR of the doctor at the walk-in clinic dated September 8, 2023, insufficient evidence to support that the applicant sustained a psychological impairment as a result of the accident which warrants removal from the MIG. The CNR establishes that the applicant reported issues with sleep and nightmares which resulted in daytime fatigue post-accident. He also reported driving anxiety, which did not prevent him from driving and that his back pain had improved. Under diagnosis it stated “PTSD” and the doctor prescribed Zopiclone and suggested psychotherapy. Although the CNR establishes that the applicant was experiencing psychological symptoms following the accident, I find the CNR lacking in detail as far how the doctor came to the diagnosis of PTSD based on the applicant’s reports on this initial visit. Further, there were no follow ups following this date supporting any ongoing psychological impairment.

10Second, I do not find the consult report of Ms. Wun, social worker dated September 28, 2023, persuasive because it was solely based on the applicant’s self-reports about his symptoms. For example, the applicant reported severe neck and shoulder pain which was impacting his quality of life and ability to work. Of significance, the only other CNR relied upon by the applicant does not mention neck or shoulder pain and the applicant reported to the doctor at the walk-in-clinic that his back pain had improved. The applicant also reported having problems with sleeping, nightmares and issues with memory and concentration. Ms. Wun concluded that given the acute nature of the applicant’s ongoing pain and psychological impairment his injuries do not fall under the MIG. I find Ms. Wun rendered this opinion in the absence of any objective evidence regarding the applicant’s reported physical pain symptoms which were not referenced in the medical record before me. Further, the assessment was brief, there was no diagnosis, and it is unclear whether Ms. Wun reviewed any medical records in rendering her opinion.

11While the CNR from the doctor at the walk-in-clinic and consult report of Ms. Wun may support that the applicant experienced some psychological symptoms, I find that it is insufficient evidence to support that the applicant sustained a psychological impairment as a result of the accident which warrants removal from the MIG because there were no further visits to any doctor after one-month post-accident.

12Finally, I do draw an adverse inference from the applicant’s failure to comply with the Tribunal’s order which ordered him to produce the employment file, CNRs of his family doctor and Uheal rehab, his treating clinic. The applicant provided no explanation in his reply submissions for why he did not comply with the Tribunal’s order. I conclude that he did not produce these records either because they do not exist or because they would not support his position.

13For the above-noted reasons, I find the applicant has not met his onus in proving on a balance of probabilities that he is removed from the MIG as a result of an accident-related psychological impairment.

14Contrary to the instructions given by the adjudicator in the Tribunal’s order, neither party identified in their submissions the amount left within the MIG limit. I find the applicant is not entitled to the OCF-18 for a psychological assessment because it seeks treatment outside of the MIG. However, this does not preclude the applicant from seeking treatment within the MIG.

The applicant has not established entitlement to an IRB in the amount of $400.00 per week for the time period claimed.

15To receive payment for an IRB under s.5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. At the post-104 mark, under s. 6 of the Schedule the applicant must prove that he suffers a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience. The applicant bears the burden of proving, on a balance of probabilities, that they meet both tests.

16The applicant argues that he sustained physical and psychological impairments as a result of the accident which has resulted in a substantial inability to perform the essential tasks of his employment. The applicant relies on the aforementioned OCF-3 completed by Dr. Tavares, chiropractor which checked off the box that the applicant met the test for the benefit. Alternatively, the applicant submits that the respondent’s denial of the benefit did not comply with s.36(4) of the Schedule. Consequently, the respondent is liable to pay for the benefit.

17The respondent submits that the applicant has not met his onus in proving that he meets the test for entitlement to an IRB. It maintains that the OCF-3 relied upon by the applicant establishes that he returned to work on modified duties following the accident and continued to work until November 1, 2023, when his employment contract ended. The respondent also submits that the applicant did not meet his onus in setting out the essential tasks of his employment and explain what specific impairment resulted in a substantial inability to carry out these tasks.

18I find the applicant has not proven on a balance of probabilities that he is entitled to an IRB for the time period claimed for the following reasons.

19First, I find the applicant’s submissions did not set out what the essential tasks of his employment were. The applicant relies on a letter from his employer which states that he was employed as a distribution and warehouse manager for a company and his duties included:

a) Overseeing the workflow of the distribution team;

b) Conducting performance evaluations;

c) Scheduling pickup, delivery and distribution of products;

d) Collaborate with department heads to coordinate production, sales and record controls and purchasing; and

e) Establish workhouse safety and security programs and training activities.

20I find the applicant’s submissions did not specify what accident-related impairments resulted in a substantial inability to carry out the above tasks which is part of the test for entitlement to an IRB. In addition, I find there is a lack of medical evidence which supports that the applicant had any ongoing physical or psychological impairment beyond September 23, 2023, which resulted in any functional limitations. As highlighted above, the consult report of Ms. Wun indicated that the applicant reported severe neck and shoulder pain which interfered with his ability to work. I find that there is little medical evidence before me to support that the applicant sustained any physical impairment which resulted in ongoing pain which would interfere with his ability to work.

21Second, the only other evidence relied upon by the applicant (an OCF-3) supports that he returned to work following the accident on modified duties. This Tribunal has consistently determined that an OCF-3 on its own is insufficient evidence to establish entitlement to a substantive benefit.

22Third, as highlighted by the respondent the applicant’s letter of employment supports that he was employed on contract for a period of one-year with an end date of November 1, 2023. In addition, the adjuster’s log notes document a conversation between the applicant and the adjuster where he reported that he was returning to China for one year around this time. The applicant did not address these arguments in his reply submissions or provide any explanation. I conclude that it is more likely than not that the applicant did not return to work on November 1, 2023, because his contract had come to an end not because of any accident-related impairments. I also draw an adverse inference from the applicant’s failure to produce the employment file.

23For the above-noted reasons, I find the applicant has not met his onus in proving on a balance of probabilities that he has a substantial inability to carry out the essential tasks of his employment within the 104-week period. Consequently, he does not meet the test for post-104 IRBS, nor did he make submissions addressing the post-104 test for IRBs. Now I will address the applicant’s arguments regarding the respondent’s non-compliance with s. 36(4) of the Schedule.

I find the respondent is liable to pay the applicant an IRB in the amount of $400.00 per week from November 1, 2023, to March 20, 2024, because its notices denying the IRBs did not comply with s. 36(4) of the Schedule

24Section 36(4) of the Schedule sets out the particulars that must be included in the insurer’s denial letters when it decides the applicant does not meet the test for specified benefits. It states that within 10 business days after an insurer receives an application and a completed OCF-3, the insurer shall:

i. pay the specified benefit;

ii. give the applicant notice explaining the medical and other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

iii. send a request to the applicant under s. 33(1) of s. 33(2).

25Should the requirements outlined in s. 36(4) of the Schedule not be met, s. 36(6) of the Schedule states: If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate, and ending, if the insurer subsequently gives a notice described in subsection (4)(b), on the day the insurer gives the notice.

26The applicant submitted the OCF-3 to the respondent on August 24, 2023, which checked off the box which supported that he met the test for entitlement to IRBS. The OCF-3 also indicated that the applicant had returned to work on modified duties. The following sets out the chronology of the correspondence the respondent sent the applicant in response to the OCF-3:

a) A letter dated August 24, 2023, indicated that they had received the OCF-3 and requested various records including an Employers Confirmation Form, paystubs, various CNRs and a decoded OHIP summary. The letter then stated “IRBs – Not Eligible: The OCF-3 states you have returned to work on modified duties – you are not eligible for IRBs at this time.” It reiterated its request for records and advised the applicant that they would review the records once received and advise if it changed his eligibility.

b) A second letter dated February 6, 2023, was sent in response to medical and rehabilitation benefits which requested that the applicant submit the above-noted records.

c) A third letter dated March 6, 2024, stated that it was a request for information under s. 33, and stated “we are writing to follow up on correspondence dated February 6, 2024, which requested information to help determine entitlement to medical and rehabilitation benefits and income replacement benefits.” The letter advised the applicant that it was requesting the same documents referenced above and that he was being put on notice under s. 33 of the Schedule, that he has an obligation to provide the requested records within 10 business days of the request. It then stated “We are obligated to advise you that if you fail to comply with this request and we do not receive this information by March 20, 2024, then we are not liable to pay for Medical and Rehabilitation Benefits and Income Replacement Benefit in respect of any period during which you failed to provide the above requested information.”

d) A fourth letter was sent on April 5, 2024, which stated they had requested information on March 6, 2024, pursuant to s. 33 of the Schedule. It then stated that “Since we have not received the information requested, the following benefits to which you may have entitlement will not be paid for the period following March 20, 2024: We will reconsider your entitlement to these benefits once the requested information is received. If there is a reasonable explanation for the delay in providing this information, please advise us as soon as possible. If we do not receive a reasonable explanation, you will not receive payment of the benefits withheld during the period of non-compliance.”

e) A final letter dated November 26, 2024, stated that the OCF-3 confirmed he returned to work on modified duties on August 23, 2023. It then stated that it had received paystubs on November 22, 2024, which confirmed that he did not sustain a loss of income since the accident. It confirmed that as per its prior determination on August 23, 2023, he is not eligible for IRBs.

27The applicant argues that the respondent’s letters denying his IRBs did not comply with s.36(4) of the Schedule because following receipt of the OCF-3 it sent the applicant a letter dated August 22, 2023, which stated that the applicant is not entitled to an IRB because the OCF-3 indicated that he had returned to work on modified duties. Further, all of its correspondence requested various documents from the applicant, but did not mention s. 33 of the Schedule, provide deadlines for compliance or advise of the consequence of non-compliance until March 6, 2024. The applicant submits that because the respondent did not comply with s. 36(4) of the Schedule, IRBs are payable from November 1, 2023, to April 6, 2024, the date IRBs were stopped as per s. 33. The applicant relies on the Tribunal’s decision in J.T. v. Certas Home and Auto Insurance Company (“J.T.”), 2019, CanLII 101641 (ON LAT) which he submits supports his position that an insurer has an obligation to include the time required to comply with a s. 33 request as well as the consequences for non-compliance.

28The respondent submits that it complied with s. 36(4) of the Schedule. First, it responded to the OCF-3 on August 24, 2023, within 10 business days where it advised the applicant he was not eligible for an IRB because the OCF-3 established that he had returned to work on modified duties. It requested that the applicant submit an OCF-2 and paystubs and advised that it would review and advise if there were any changes in eligibility. Further, when it received the applicant’s paystubs on November 22, 2024, it sent the applicant a letter indicating that his paystubs confirmed his return to work and there was no loss of earnings and the applicant’s entitlement to an IRB was unchanged. It submits that it requested information pursuant to s. 33 in its February 6, 2024, letter and followed up again on March 6, 2024, where it stated that it was making a request for information pursuant to s.33 of the Schedule and advised of the consequences of non-compliance. Finally, on April 5, 2024, it notified the applicant that his entitlement IRBs had been stopped pursuant to s. 33 of the Schedule. It maintains that to date, the applicant has not produced the OCF-2, and no explanation has been provided. The respondent maintains that the applicant’s arguments regarding non-compliance with s. 36(4) of the Schedule must fail given the contents of its correspondence contradicts the applicant’s submissions.

29I find that the respondent’s various correspondence denying the applicant’s entitlement to an IRB did not fully comply with s. 36(4) of the Schedule until March 6, 2024, when it notified the applicant that it was making a request for documents pursuant to s. 33 of the Schedule and set out the applicant’s obligation to comply with the request and consequence for non-compliance. I find that its letter dated August 23, 2023, did not advise the applicant that it was making the request for documents pursuant to s.33, it did not provide a deadline or advise of the consequence of non-compliance. I find its letter dated February 4, 2024, did not cure its deficient notice because it was in response to medical benefits not IRBS, and it did not reference s. 33, provide a deadline to provide the records or advise of the consequence of non-compliance.

30I find the respondent’s letter dated March 6, 2024, cured the above-noted deficiency because it indicated that it was making a s. 33 request to assess the applicant’s entitlement to medical benefits and IRBs. It also set out the various records requested, advised the applicant of his obligation to comply with the request within 10 business days, and provided a deadline of March 20, 2024, and set out the consequences for non-compliance. It then notified the applicant on April 4, 2024, that his entitlement to the benefits were stopped as of March 20, 2024, for non-compliance with the deadline provided in its previous correspondence.

31For the above-noted reasons, I find the respondent is liable to pay the applicant an IRB in the amount of $400.00 per week from November 1, 2023, to March 20, 2024, the deadline it provided in its correspondence.

The applicant is not entitled to interest.

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on IRBs between November 1, 2023, and March 20, 2024.

The applicant is not entitled to an award.

33The 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. The applicant’s submissions highlight the legal test for entitlement to an award, however, did not refer to the specific evidence or arguments to support that the respondent unreasonably withheld any benefits. As a result, I find that an award is not warranted in this case.

ORDER

34For the above-noted reasons, I order as follows:

1. The applicant sustained a minor injury and is subject to treatment within the MIG limit. He is not entitled to the OCF-18 in dispute.

2. The applicant is entitled to an IRB in the amount of $400.00 per week from November 1, 2023, to March 20, 2024, plus interest because I find the respondent did not comply with s. 36(4) of the Schedule.

3. The applicant is not entitled to an award.