Citation: Liu v TD General Insurance Company, 2026 ONLAT 24-014511/AABS

Licence Appeal Tribunal File Number: 24-014511/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:

Bao Qi Liu

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Aylina Dhanji, Counsel

For the Respondent:

Michael Rattray, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Bao Qi Liu, the applicant, was involved in an automobile accident on January 2, 2020, 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. Is the applicant entitled to $5,560.00 ($14,750.81 less $9,190.81 approved) for a Catastrophic (“CAT”) Assessment, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan, dated November 21, 2022?

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

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

3The Case Conference Report and Order (“CCRO”) lists issues 1-3 as follows:

1. Is the applicant entitled to $4,229.56 for Physiotherapy Services, proposed by Total Recovery Rehab Centre in a treatment plan dated November 24, 2022?

2. Is the applicant entitled to $280.00 ($3,981.74 less $3,701.74 approved) for Psychological Services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated June 12, 2024?

3. Is the applicant entitled to $280.00 ($3,981.74 less $3,704.74 approved) for Psychological Services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated September 11, 2024?

4The applicant advised that these three treatment plans were approved by the respondent on April 15, 2025, and are no longer in dispute. However, the applicant claims interest and an award on these approved treatment plans.

RESULT

5I find that the applicant is not entitled to the balance of the treatment plan for CAT assessments, dated November 21, 2022.

6I find that the applicant is entitled to interest on the treatment plan for physiotherapy services, dated November 24, 2022 and interest on the balance of the treatment plans for psychological services dated June 12, 2024 and September 11, 2024;

7I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

Entitlement to the balance of the treatment plan for CAT assessments

8I find that the applicant is not entitled to the balance of the treatment plan for CAT assessments.

9Pursuant to s. 25(1)(5) of the Schedule, an insurer shall pay for reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

10This is to be read in conjunction with s. 25(5)(a) of the Schedule which provides that an insurer shall not pay more than $2,000.00 plus applicable taxes for fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it.

11To determine entitlement, the insured must prove on a balance of probabilities, with supporting evidence, that there is a reasonable basis to investigate whether the insured person is catastrophically impaired. There must be some suggestion that the specific condition exists, arose from the accident, and that further investigation is reasonable and necessary. The insured is also required to prove that each constituent assessment is reasonable and necessary and that the fees charged for each assessment are reasonable.

12The applicant claims entitlement to $5,560.00 ($14,750.81 less $9,190.81 approved) for a CAT Assessment, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan dated November 21, 2022. The treatment plan recommends the following:

1. Physiatry CAT Assessment by Dr. Joseph Wong - $2,000.00

2. Occupational Therapy (In-Home) CAT Assessment by Raymond Wong - $2,000.00

3. Psychological CAT Assessment by Dr. Sedigheh Naisi - $2,000.00

4. CAT Executive Summary/Final Ratings Analysis Report by Dr. Joseph Wong - $2,000.00

5. Occupational Therapist Overall Assessment Summary, Analysis, Final Rating - $2,000.00

6. Occupational Therapist Clinic File Review Assessment by Raymond Wong - $1,000.00

7. Psychological Clinic File Review Assessment by Dr. Sedigheh Naisi - $1,000.00

8. Completion of OCF-18 + initial - $200.00

9. Completion of OCF-19 - $200.00

10. Interpretation - $200.00

11. Client Transportation - $400.00

12. Occupational Therapist Transportation - $112.81

13. Applicable HST - $1,638.00

13By correspondence dated December 1, 2022, the respondent approved $9,190.81 of the treatment plan. It denied the following:

i. Line 5 - Occupational Therapist Overall Assessment Summary, Analysis, Final Rating in the amount of $2,000.00

ii. Line 6 - Occupational Therapist Clinic File Review Assessment in the amount of $1,000.00

iii. Line 7 - Psychological Clinic File Review Assessment in the amount of $1,000.00

iv. Line 13 - Applicable HST in the amount of $1,560.00.

14The respondent advised that pursuant to s. 25(5) of the Schedule, that it is only required to pay a total of $2,000.00 in respect of fees and expenses for conducting any one assessment or examination. It advised that the Professional Services Guidelines (Superintendent Guideline No. 03/14) (the “Guidelines”) as outlined by the Financial Services Commission of Ontario states that the applicability of HST to the services of any health care professionals or health care provider falls under the jurisdiction of the Canada Revenue Agency (CRA). The respondent advised that according to the CRA, the services of physicians, occupational therapists and psychologists are exempt from charging HST.

15The applicant submits that all fees for the completion of the CAT Assessments were reasonable and necessary given the severity of his symptoms and the reasonable potential that he meets the threshold for a CAT impairment. He has suffered from both physical and psychological symptoms for over five years. On April 8, 2025, the applicant was deemed to have a CAT impairment under criterion 7 and 8. The applicant submits that the s. 25 CAT Assessment reports should be given a significant amount of weight in determining whether the treatment plan is reasonable and necessary. As he was deemed to have a CAT impairment, the full payment of the CAT Assessment amounts is reasonable and necessary. The applicant submits that he is also entitled to HST.

16The applicant further submits that the respondent’s Explanation of Benefits for the partial approval did not rely on a medical opinion nor on s. 44 assessments. He argues that there is no medical evidence addressing the proposed CAT Assessment and whether it is reasonable and necessary.

17The respondent submits that the treatment plan in dispute was partially approved up to the maximum amount payable pursuant to s. 25(5)(a) of the Schedule. The respondent submits that the Tribunal has consistently held that s. 25 CAT assessments are subject to the funding limits of $2,000.00 per assessment as set out in s. 25(5)(a) of the Schedule. (See: Tetruashvili v. Toronto Transit Commission, 2021 CanLII 134542 (ON LAT) (“Tetruashvili”); Chen v. TD General Insurance Company, 2025 CanLII 75781 (ON LAT) (“Chen v. TD”); Krupnikov v. The Personal Insurance Company, 2025 CanLII 66347 (ON LAT) (“Krupnikov”); and Marcijus v. Co-Operators General Insurance Company, 2024 CanLII 115426 (ON LAT) (“Marcijus”))

18The respondent further submits that the Tribunal in Zhang v. The Co-Operators General Insurance Company, 2022 CanLII 14954 (ON LAT) (“Zhang”), held that any fee associated with reviewing a file should be included in the $2,000.00 fee described in s. 25(5) of the Schedule. This reasoning was echoed in Chen v. Certas Home and Auto Insurance Company, 2025 CanLII 5871 (ON LAT) (Chen v. Certas”), where the Tribunal agreed with previous interpretations of the funding cap set out in s. 25(5)(a) of the Schedule as applying to assessments as well as fees associated with reviewing files for assessments.

19I agree with the respondent that the applicant’s submissions are focused on whether the proposed treatment plan for a CAT Assessment is reasonable and necessary. I find that there is no dispute between the parties that it was reasonable and necessary for the applicant to undergo a CAT Assessment. I find that the issue in dispute is whether the respondent is obligated to provide funding for assessments in excess of the funding limit set out in s. 25(5)(a) of the Schedule or presumably, for certain assessments that are duplicative or necessarily part of an existing assessment, as is the case here with the Occupational Therapy Assessments and the file reviews. I find that the respondent approved each of the Physiatry, Psychological and Occupational Therapy Assessments as well as an Executive Summary report. What it did not approve is an additional Occupational Therapy Overall Assessment Summary, Analysis, Final Rating and a Therapist Clinic File Review Assessment by the Occupational Therapist and a Clinic File Review Assessment by the Psychologist.

20I agree with the respondent that the applicant has not made any reference to s. 25(5)(a) of the Schedule nor the applicable funding cap for each assessment. I find that the applicant has not provided any submissions as to why the applicable funding cap should not apply in the circumstances or why the costs exceeding the funding limits set out in the Schedule are reasonable and necessary.

21I find that where a s. 25 CAT Assessment is deemed reasonable and necessary, the costs payable for the assessment are subject to the funding cap set out in s. 25(5)(a) of the Schedule. Any fees exceeding the funding cap is not in accordance with the Schedule.

22I find that the File Reviews by the Occupational Therapist and the Psychologist are not payable. The applicant has not provided any explanation as to why a separate file review is warranted when each assessor conducted their own file review. I find that a file review is a necessary part of an assessment and any fee associated with reviewing files should be included in the $2,000.00 fee described in s. 25(5) of the Schedule. A separate amount for a file review is not payable. Although I am not bound by previous Tribunal decisions, I agree and adopt the Tribunals’ reasoning in Zhang and Chen v. Certas. I accordingly find that the amounts proposed for separate file reviews by the Occupational Therapist and the Psychologist are not reasonable and necessary and therefore not payable.

23I find that the applicant has not provided any specific submissions as to why the Occupational Therapist Overall Assessment Summary, Analysis, Final Rating Assessment is reasonable and necessary. Again, an analysis and summary should be included as part of the Occupational Therapy Assessment Report and included in the $2,000.00 funding limit noted in s. 25(5)(a) of the Schedule. The applicant has not provided specific submissions as to why this additional assessment is required. I therefore find that he has not proven on a balance of probabilities that it is reasonable and necessary.

24I further do not accept the applicant’s submission that the assessments should be approved because the respondent’s Explanation of Benefits did not provide a medical basis for the denial or rely on any medical evidence to support its denial. I find that where the reason for the denial is based on the Schedule and the Guidelines, it is not necessary for a medical reason to be provided. I accept that the denial was based on the statutory provisions of the Schedule and the Guidelines set out in the denial letter. I find that duplication or excessive assessments are, naturally, a perfectly valid “other” reason, especially where the applicant has not provided a rationale for bifurcating them to get extra payment.

25With respect to the issue of the applicable HST, I find that the applicant has not made any submissions with respect to this issue except to say that he is entitled to the treatment plan plus HST.

26The respondent in its denial letter states that HST is not payable. It relies upon the Guidelines which states that the applicability of the HST to the services of any health care professionals or health care providers listed in this Guideline falls under the jurisdiction of the CRA. According to the CRA, services by physicians, occupational therapists and psychologists are exempt from HST.

27I find that the onus is on the applicant to prove entitlement to the issues in dispute. As the applicant has not made any specific submissions with respect to the issue of whether HST is payable, I find that he has not proven on a balance of probabilities that he is entitled to applicable HST in the treatment plan in dispute.

28For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he is entitled to the balance of the treatment plan for CAT Assessments, dated November 21, 2022.

Interest

29I find that the applicant is entitled to interest on the three treatment plans approved on April 15, 2025, after he was deemed CAT.

30Section 51(2) of the Schedule provides that the respondent shall pay interest on overdue payments of benefits. Section 51(4) sets out how interest is calculated when an application before the Tribunal is settled. It provides that interest on the benefits in dispute is calculated at the prejudgment interest rate described in subsection 128(3) of the Courts of Justice Act and is payable for the period that begins from the date of the application to the Tribunal and ends on the date a settlement is reached, or a decision is issued that finally disposes of the dispute.

31The applicant claims interest on the three treatment plans that were approved by the respondent on April 15, 2025, after he was deemed CAT.

32The respondent submits that all denials were in accordance with the Schedule and that no interest is owed.

33I find that in agreeing to pay the three treatment plans, which were issues in dispute in the Application before the Tribunal, the respondent settled these three issues on April 15, 2025, within the meaning of s. 51(4), and must therefore pay interest pursuant to that subsection.

34For the reasons set out above and pursuant to s. 51(4) of the Schedule, I find that the applicant is entitled to interest on the treatment plan for physiotherapy services, in the amount of $4,229.56, dated November 24, 2022; interest on the balance of the treatment plan for psychological services, in the amount of $280.00, dated June 12, 2024; and interest on the balance of the treatment plan for psychological services, in the amount of $280.00, dated September 11, 2024. Interest applies from November 26, 2024, the date of his Application to the Tribunal, to April 15, 2025, the date of settlement of the issue, calculated at the prejudgment interest rate described in subsection 128(3) of the Courts of Justice Act.

Award

35I find that the applicant is not entitled to an award under s. 10 of Reg. 664.

36The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

37The applicant submits that he is entitled to an award because the respondent categorically ignored the medical records of his treating practitioners and assessors; he is vulnerable as he has sustained serious injuries as a result of the accident; the Tribunal needs to set precedents to ensure deterrence to insurers; and the respondent acted in a highhanded manner. Specifically, the applicant claims entitlement to an award based on the denial of the three treatment plans that were subsequently approved by the respondent after receipt of the CAT reports on April 15, 2025.

38The respondent submits that the applicant contravened the CCRO by failing to provide particulars of his award claim within 30 days after receipt of the requested Adjuster’s log notes. The respondent submits that the failure of the applicant to comply with the CCRO is prejudicial and is contrary to the principles of procedural fairness, as the respondent is entitled to know the case being made against it. It therefore submits that due to the applicant’s failure to comply with the timelines set out in the CCRO and his failure to provide particulars of the sought-after award, the award should be excluded from the issues in dispute. In the alternative, the respondent submits that the applicant has failed to tender evidence in support of the sought-after award because he has failed to prove that the respondent unreasonably withheld or delayed payments.

39With respect to the treatment plan for physiotherapy and the balance of the treatment plans for psychological services, the respondent submits that these treatment plans were properly denied based on the Schedule and then subsequently approved in full once the determination was made that the applicant was CAT.

40With respect to the applicant’s award claim, I find that the applicant failed to provide the particulars of the s. 10 award claim in compliance with the CCRO. In the Divisional Court decision in Waldock v. State Farm Mutual Insurance Company, 2019 ONSC 6105 (“Waldock”), at the initial hearing a special award was granted by the arbitrator even though an award had not been included as an issue in dispute in any of the pre-hearing documents. The Court found that the arbitrator had inherent jurisdiction to award a special award and that a special award is “always a possibility if the arbitrator finds that the insurer unreasonably withheld or delayed the payment of benefits”. The Court also found that procedural fairness was not denied, since the respondent had the opportunity to make submissions on this issue.

41Applying the reasoning in Waldock, I find that despite the late disclosure of the award particulars and non-compliance with the CCRO, that it is not a breach of procedural fairness to consider the applicant’s claim for a s. 10 award. I find that the respondent had, and exercised, its opportunity to provide responding written submissions on the issue of a s. 10 award.

42I find that the case law has established that an award should be granted only where this is unreasonable behaviour from an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

43I find that the applicant has not pointed the Tribunal to sufficient evidence to demonstrate that the respondent’s behaviour was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

44With respect to the treatment plan for physiotherapy services, dated November 24, 2022, the respondent denied the treatment plan based on an Insurer’s Examination report, which concluded that from a strictly orthopaedic perspective, there was an absence of any significant ongoing objective musculoskeletal impairment attributed to the index motor vehicle collision. The respondent then reassessed the previously denied treatment plan based on the new evidence provided in the CAT reports, resulting in the denied treatment plan’s subsequent approval. I do not find that the respondent’s behaviour in initially denying this treatment plan was excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The respondent was entitled to rely on the opinion of its assessor and then re-assess the treatment plan upon receipt of updated documentation in the CAT reports.

45With respect to the balance of the two treatment plans for psychological services, dated June 12, 2024 and September 11, 2024, these denials were solely based on s. 3(1)(b) of the Schedule, which explicitly notes that “unless the insured person sustained a catastrophic impairment as a result of the accident, related to transportation expenses incurred only after the first 50 kilometres of a trip”? I find that the transportation expenses were submitted prior to the applicant being deemed CAT and therefore s. 3(1)(b) was applied appropriately by the respondent at the time of submission of these two treatment plans. I find that once the applicant was deemed CAT, payment for the previously denied expenses was made.

46I therefore find that the respondent’s behaviour in denying these treatment plans was not excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

47For the reasons outlined above, I do not find that the applicant has proven on a balance of probabilities that he is entitled to an award.

ORDER

48For the reasons outlined above, I find:

i. The applicant is not entitled to the balance of the treatment plan for CAT assessments, dated November 21, 2022.

ii. The applicant is entitled to interest on the treatment plan for physiotherapy services, dated November 24, 2022 and interest on the balance of the treatment plans for psychological services dated June 12, 2024 and September 11, 2024;

iii. The respondent is not liable to pay an award under s. 10 of Reg. 664.