Citation: Guo v. Pembridge Insurance Company, 2026 ONLAT 24-012382/AABS

Licence Appeal Tribunal File Number: 24-012382/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:

Xiyu Guo

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

John Mazzilli

APPEARANCES:

For the Applicant:

Rakesh Sharma, Counsel

For the Respondent:

Parthenia Magharious, Counsel

Derek Yap, Counsel

HEARD:

By way of written submission

OVERVIEW

1Xiyu Guo, (the “applicant”), was involved in an automobile accident on October 20, 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 Pembridge Insurance Company (the “respondent”), Pembridge, 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 limit? Note: The parties agree there is $36.77 remaining in the MIG.

ii. Is the applicant entitled to $1,462.48 for Chiropractic Services, proposed by Easy Health Centre in a treatment plan/OCF-18 (“plan”) dated February 24, 2024?

iii. Is the applicant entitled to $100.00 for a doctor visit, submitted on a claim form (OCF-6) dated November 29, 2024?

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

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

RESULT

3The applicant remains in the MIG; therefore, it is not necessary to provide an analysis on the reasonableness or necessity of the OCF-18.

4The applicant is not entitled to an OCF-6 in the amount of $100.00.

5The respondent’s denial notices are in accordance with s.38(8) and s.54 of the Schedule.

6The applicant is not entitled to interest or an award.

7The application is dismissed.

ANALYSIS

Minor Injury Guideline

8I find on a balance of probabilities that the applicant has failed to prove that his accident-related injuries warrant removal from the MIG, or that he suffers from a document pre-existing condition that precludes recovery within the confines of 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 a 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 the MIG limits have been exhausted, therefore the MIG applicability gets disputed not in isolation of a substantive issue, but with respect to the substantive issue namely the reasonableness and necessity of the OCF-18 for chiropractic treatment. On this basis the applicant submits that he will not be making any submissions solely on the applicability of the MIG but will dispute the applicability of the MIG with respect to the denied substantive issue and he advances his argument that the disputed plan ought to be payable under s.38(1) and s.38(3) of the Schedule.

12The respondent submits that the applicant has failed on his onus to prove that his injuries were not predominantly minor in nature and that the applicant did not provide compelling evidence that a pre-existing medical condition would preclude his recovery within the confines of the MIG. The respondent argues that the applicant suffered soft tissue injuries as a result of the accident. It argues that the applicant did not attend his family doctor until 5 months after the accident and that the applicant has denied any significant physical injury from the accident.

13It argues that the disputed treatment plan is not reasonable and necessary based on the medical evidence and that its denials and notices are in accordance with the Schedule. The respondent relies on a physiatry report dated September 10, 2024, completed by Dr. Marchuk, physiatrist, and its explanation of benefits notices dated December 11, 2024, September 13, 2024, and March 5, 2024. The respondent further relies on a CNR from Dr. Cheng the applicant’s family physician dated March 28, 2024.

14I find on a balance of probabilities that the applicant has not met his onus to prove that his accident-related physical injuries warrant removal from the MIG. It is well established that an OCF-18 on its own does not support a plan to be reasonable and necessary nor does it constitute grounds to be removed from the MIG.

15The respondent provided a CNR from the applicant’s family physician five months post accident which shows that the applicant denied any significant physical injury as a result of the accident. For this reason, I accept the opinion of Dr. Marchuk that the applicant’s impairment is predominantly a minor injury and that there is no compelling evidence that the applicant has a documented pre-existing condition that would prevent him form achieving maximum recovery from accident-related injuries outside of the MIG.

16I find on a balance of probabilities that the applicant has failed to prove that his accident-related injuries warrant removal from the MIG, or that he suffers from a documented pre-existing condition that precludes recovery within the confines of the MIG sufficient for removal from the MIG under s. 18(2).

17Accordingly, it is not necessary to provide an analysis of the reasonableness or necessity of the disputed OCF-18. I will address the applicant’s submissions regarding his procedural arguments below in my decision.

The respondent’s denial letter is in accordance with s.38 and s.54 of the Schedule and do not establish grounds for removal from the MIG

Section 38

18Section 38(3) set out the provisions for claims of medical and rehabilitation benefits and for approval of assessments which include the clinical reasons, the goods and services requested, and the requirement of providing a health professional’s certification.

19Section 38(8) reads that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

20Section 38(11) is operative if the insurer fails to give a notice in accordance with subsection 38(8) in connection with a treatment and assessment plans. Section 38(11) states that the insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies. Further, the insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

21The applicant submits that the only statutory requirement to make a claim under s.38(3) has been satisfied and deemed reasonable and necessary because the disputed OCF-18 was completed by a regulated health professional and that is the only requirement for him to make a claim for a medical benefit payable, and that s.38 is silent about the requirement to provide medical evidence in support of the proposed treatment.

22The applicant submits that the insurer examination report dated September 10, 2024, is incomplete and statutorily deficient because it failed to provide medical and all other reasons as to why it considers the plan to not be reasonable and necessary.

23The respondent argues that the applicant has not established entitlement to the disputed chiropractic treatment plan. It argues that Tribunal jurisprudence requires corroborating, contemporaneous medical evidence that shows the need for the treatment plan to be reasonable and necessary, and an OCF-18 on its own does not support the reasonableness or necessity for the requested treatment. In addition, the respondent argues that all of its denial letters are in accordance with the Schedule.

24Section 38(3) operates as a procedural mechanism; it does not create relief from the substantive finding of a MIG designation. Contrary to the applicant’s submissions an OCF-18 is not considered reasonable and necessary by virtue of it being completed by a medical professional. As outlined above, s.38(8) requires in part the insurer to give medical and other reasons for its denial. The respondent’s explanation of benefits in this case do comply with s.38(8) and therefore s.38(11) is not operative.

25For example, the OCF-18 is dated February 24, 2024, and the respondent provided the applicant with an Explanation of Benefits (“EOB”) letter dated March 5, 2024, which is within the 10-business day requirement under s.38(8). The letter informed the applicant that based on current medical documentation, the applicant’s injuries are soft tissue and minor injuries and that it was not provided with any compelling medical evidence from his family doctor that indicate his injuries are beyond minor nor that he suffers from a pre-exiting medical condition that will prevent him from achieving maximal recovery from the MIG.

26The letter further provides the s.18(1) definition as outlined above, therefore in my view the respondent has provided medical and other reasons that are easy to understand satisfying its requirement under s.38(8). In addition, the EOB provides information necessary for the applicant to understand his right to dispute and also informs the applicant that he will be required to attend an Insurers examination under s. 44, further satisfying the obligations under s.38.

27Following the receipt of Dr. Marchuk’s report dated September 10, 2024, the respondent provided the applicant with a new EOB dated September 13, 2024. This EOB informs the applicant that the respondent has denied the OCF-18 because it is not reasonable and necessary based on Dr. Marchuk’s report. The report is enclosed for the applicant’s reference. In addition, the EOB states that:

Based on your physical examination, the following injuries were sustained a direct result of the motor vehicle accident dated October 20, 2023: 1. Whiplash Associated Disorder (WAD2). 2. Cervicothoracic bilateral shoulder myofascial dysfunction. 3. Lumbar musculoligamentous dysfunction. The Impairment is predominantly a Minor Injury as defined in Section 2 of the Minor Injury Guideline. There is no compelling evidence that you have a pre-existing medical condition, documented by a Health Practitioner before the subject accident, that would prevent you from achieving maximal recovery from accident-related injuries if subject to the $3500 Medical and Rehabilitation limit or if limited to the Goods and Services available within the Minor Injury Guideline. Dr. Marchuk stated that you have achieved maximum medical recovery with respect to injuries sustained in the subject accident.

28In my view the EOB provided the medical reasons in a clear manner because it provided the diagnosis of the applicant’s accident-related injuries according to Dr. Marchuk. In addition, it provided Dr. Marchuk’s report and informed the applicant that there is no documented pre-existing medical condition or injury that warrants treatment beyond the MIG. Finally, the EOB provides information for the applicant’s right to dispute the claim, therefore the EOB is in accordance with s.38(8) therefore s.38(11) is not triggered.

29I find on a balance of probabilities that the respondent’s denial letters/EOBs are in accordance with s.38(8) of the Schedule.

Section 54

39The applicant submits that Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 sets the standard for reasons that are assistive for applicants to determine whether to challenge the reasons for the respondent’s denials. He submits that the onus on the applicant is only to disprove those reasons on a balance of probabilities by proving the reasons as frivolous, flawed, arbitrary, statutorily deficient or no reasons at all to be entitled to the disputed benefits. He argues that the respondent erred because the MIG can not only be argued in isolation as a category of benefit, but rather he argues that it also gets disputed by the treatment plan in dispute, and accordingly if the plan is deemed reasonable and necessary then the applicant is removed from the MIG.

40The respondent did not provide any submissions with respect to s. 54 of the Schedule.

41Section 54 requires an insurer that denies or reduces a benefit to notify the insured in writing and to provide information to the applicant for their right to dispute its denial. This provision ensures that the insured receives clear, timely notice of the insurers denials which help them understand the respondent’s position and pursue a dispute if desired.

42In this case the denial letters and explanation of benefits dated March 5, 2024, and September 13, 2024, comply with s.54 because the denials state that the MIG applies and outline the insurers reasons, as outlined above. The letter of March 5, 2024, informs the applicant of a requirement under s.44 for an insurer’s examination and the subsequent denial/EOB letter of September 13, 2024, informs the applicant of the reasons, including lack of medical evidence produced by the applicant to support the chiropractic plan. The denial also provides the applicant with information on his right to dispute.

43For the reasons above I do not accept the applicant’s interpretation of s.54, accordingly I find on a balance of probabilities that the respondent has met its obligations under s. 54 of the Schedule.

The OCF-18 and OCF-6

44Having found that the applicant remains in the MIG, it is not necessary to provide an analysis of the reasonableness or necessity of the disputed plan or incurred treatment. I do note that the OCF-6 in dispute in the amount of $100.00 relates to a March 28, 2024, appointment with Dr. Cheng, the applicant’s family physician.

45The invoice from Dr. Cheng informs that the invoice relates to an intermediate assessment and the OCF-6 requests payment based on the goods and services as “Doctor visit without OHIP.” The OCF-6 is dated November 29, 2024, and was denied by the respondent on December 11, 2024, and its denial informs that the MIG limits have been exhausted, however the parties’ submissions inform me that there is $36.77 remaining in the MIG at the time of the hearing. The applicant submits that $36.77 is payable plus interest as it is the outstanding amount remaining in the MIG limits.

46I am unable to determine if this visit with Dr. Cheng was accident related as there is no mention of the accident. The invoice is vague requesting payment for an intermediate assessment with no details of what the assessment was related to. For this reason, I find on a balance of probabilities that the applicant is not entitled to $100.00 or $36.77 for an intermediate assessment, namely the doctors visit without OHIP as listed in the OCF-6 because it is not reasonable and necessary.

Interest

47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.

Award

48The 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.

49The applicant submits that the respondent’s denial reasons are frivolous, flawed, arbitrary and statutory deficient and therefore an award is warranted.

50As the respondent did not withhold or delay the payment of benefits, follows that the applicant is not entitled to an award.

ORDER

51It is ordered that:

i. The applicant remains in the MIG; therefore, it is not necessary to provide an analysis on the reasonableness or necessity of the OCF-18.

ii. The applicant is not entitled to an OCF-6 in the amount of $100.00.

iii. The respondent’s denial notices are in accordance with s.38(8) and s.54 of the Schedule.

iv. The applicant is not entitled to interest or an award.

v. The application is dismissed.