Wu v. TD General Insurance Company, 2026 CanLII 4149

Citation: Wu v. TD General Insurance Company, 2026 ONLAT 24-007315/AABS

Licence Appeal Tribunal File Number: 24-007315/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.

Parties

Between:

Yu Ming Wu

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel

For the Respondent: Lyrica Roche, Counsel

HEARD: In Writing

OVERVIEW

1Yu Ming Wu, the applicant, was involved in an automobile accident on June 25, 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 s. 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 $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 (“plan”) submitted January 19, 2024?

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

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

RESULT

3The applicant is being held to the Minor Injury Guideline. As the applicant is being held to the MIG it is unnecessary to determine if the treatment plan is reasonable and necessary. The applicant is not entitled to the treatment plan due to a violation of s(38.11) of the Schedule. Neither interest nor an award are payable.

ANALYSIS

Is the applicant held to the Minor Injury Guideline?

4I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 MIG funding limit on treatment.

5Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”.

6An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

7I find that the applicant’s submissions do not address whether they sustained a minor injury. I find that although it was listed as an issue in dispute in the Case Conference Report and Order, the issue of whether the applicant should be removed from the MIG is not addressed by the applicant in their submissions, nor did the applicant point me to any medical evidence to support their removal from the MIG.

8For these reasons, I find that the applicant has not proven on a balance of probabilities that he should be removed from the MIG.

Is the Applicant entitled to a Psychological Assessment on Procedural Grounds?

9As I have ruled that the applicant shall remain in the MIG, it is not necessary for me to do a reasonable and necessary analysis on the treatment plans in dispute.

10The applicant also argued that they are entitled to the Psychological Assessment in dispute because the respondent violated s.38(11) of the Schedule. I find the applicant is not entitled to a Psychological Assessment due to a violation of s.38(11).

11In their written submissions, the applicant stated that the respondent did not update their disclosure list prior to the deadline agreed upon in the Case Conference Report and Order. The applicant objects to the insurer scheduling s.44 assessments after the LAT application had already been filed, saying “the applicant has no knowledge of the case to be met at the hearing and therefore has nothing to disprove.”

12I disagree with that statement. The onus is on the applicant to establish entitlement to the treatment plan in dispute. The applicant argues that the insurer should have refrained from scheduling a s.44 IE, because it proves that their original denial reason was flawed. However, the act of ordering s.44 assessments does not change the nature of the applicant’s onus. Whether the insurers original decision is amended or not, the onus remains on the applicant.

13Further, the applicant states that the denial letters received from the respondent did not comply with the Schedule. The applicant argues that the denial letters were not compliant with s.38(8), where the Schedule states the insurer must provide a letter outlining what “the insurer does not agree to pay for and the medical reasons and all the other reasons why the insurer considers any goods, services, assessments and examinations, or the costs of them, not to be reasonable and necessary” The applicant argues that simply saying “the applicant has sustained a minor injury” is insufficient.

14Section 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 a impairment to which the MIG applies.

15I have read the original denial letter, dated February 9, 2024. I find the letter compliant with s. 38(8) of the Schedule. It clearly identifies the treatment plan and provider, and provides a medical reason for the denial. The letter indicates that “to date, we have not received any medical documentation that would support your injuries to fall outside of the Minor Injury Guideline.” In my view, the reference to the Minor Injury Guideline is a medical reason, and meets the requirement of the Schedule.

16The applicant maintains this letter establishes the insurer was not acting with good intention, because the OCF-18 in dispute clearly indicates the applicant had not suffered a minor injury.

17I disagree with this argument as well. It is well established that OCF-18s are not medical evidence. Furthermore, a respondent could, in theory, be factually incorrect, but that does not affect the validity of the Explanation of Benefits letter.

18In summary, I find that the insurer has, according to s.44 of the Schedule, the option to schedule insurer’s assessments subsequent to the LAT application. Section 38 of the Schedule contemplates that the respondent may request an IE. Also, the onus is on the applicant, and simply attacking the respondent’s reasons for a denial does not invalidate that denial, or conversely, render a plan reasonable and necessary. This is especially true because, as noted above, even if a respondent is factually incorrect that does not nullify the validity of a denial letter / Explanation of Benefits.

19Finally, I find that the original denial letter was compliant with the Schedule, and meets all the requirements for validity according to s.38. It clearly “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” as per the Schedule.

20For these reasons, I find the applicant has not, on the balance of probabilities, met their onus to prove entitlement to the treatment plan in dispute, nor that the treatment plan is payable under s.38(11).

Interest

21Interest 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

22The 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. As the insurer has not unreasonably withheld or delayed benefits, no award is payable.

ORDER

23The application is dismissed.

i. The applicant is being held to the MIG and the $3,500 treatment limit.

ii. The applicant is not entitled to the treatment plan in dispute in accordance with s.38(11) of the Schedule.

iii. Neither interest nor an award are payable.