Licence Appeal Tribunal File Number: 24-015249/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:
Kwan Ho Ng
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Caley Howard
APPEARANCES:
For the Applicant: Rakesh Sharma, Counsel
For the Respondent: Nicole De Bartolo, Counsel
HEARD: By way of written submissions
OVERVIEW
1Kwan Ho Ng, the applicant, was involved in an automobile accident on January 4, 2024, 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 $5,023.90 for chiropractic services, proposed by Total Recovery Rehab Centre in an OCF-18 (“treatment plan”) on April 16, 2024?
ii. Is the applicant entitled to $3,102.48 for an in-home assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan on January 17, 2025?
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
3I find that:
i. The applicant is not entitled to the treatment plan for chiropractic services;
ii. The applicant is not entitled to the treatment plan for an in-home assessment;
iii. The respondent is not liable to pay an award under s. 10 of Reg. 664; and
iv. As there are no overdue benefits, the applicant is not entitled to interest.
Procedural issues
4In his submissions, the applicant submits that the issues set out at paragraphs i. and ii. above should have been framed as follows:
i. Whether the final denial reasons of the respondent stated in letter dated November 27, 2024, and as required to be provided under section 38(8) of the Schedule in case of not agreeing to pay the OCF18 in the amount of $5023.90 as not reasonable and necessary, are statutory valid reasons; and
ii. Whether the final denial reasons of the respondent stated in letter dated January 28, 2025, and as required to be provided under section 38 (8) of the Schedule in case of not agreeing to pay the OCF18 in the amount of $3102.48 as not reasonable and necessary, are statutory valid reasons.
5I disagree. The issues here are whether or not the applicant is entitled to the two disputed treatment plans, as framed in the Case Conference Report and Order dated April 4, 2025 (the “CCRO”). The CCRO sets out the issues as agreed to by the parties at the case conference. The applicant did not file a motion or seek the consent of the respondent to reframe the issues in dispute. Further, the applicant is free to restrict his submissions to the validity of the respondent’s denial letters under s. 38(8) if he prefers to do so. It is not necessary to reframe the issues according to the applicant’s intended submissions. Nor does it make any sense to restrict the issues in this manner, as the applicant was also free to provide evidence and submissions that he was entitled to the disputed treatment plans because they were reasonable and necessary.
6Therefore, I decline to reframe the issues.
ANALYSIS
The applicant is not entitled to the treatment plan for chiropractic services
7The applicant limited his submissions and evidence to the sufficiency of the respondent’s denial letters under s. 38(8) of the Schedule.
8Section 38(8) of the Schedule requires an insurer to respond to each treatment plan within 10 days of receiving it by identifying the goods, services, assessments and examinations described in the treatment plan that the insurer does and does not agree to pay for. The response must include the medical reasons and all of the other reasons why the insurer considers any proposed treatments or assessments not reasonable or necessary.
9If an insurer fails to comply with s. 38(8), the consequences are:
i. The insurer cannot take the position that the insured person has an impairment to which the Minor Injury Guideline (“MIG”) applies; and
ii. The insurer must pay for any proposed treatments or assessments set out in the plan that are incurred in the period starting on the 11th day after the insurer receives the plan and ending on the date when the insurer provides the insured with a response that complies with s. 38(8).
10Although I am not bound by Tribunal decisions, I find that T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), provides useful guidance on the meaning of “medical reasons.” It found that such reasons should:
i. include specific details about the insured’s condition that formed the basis for the insurer’s decision; and
ii. should allow an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision.
11The applicant submits that the respondent’s denial letter dated November 27, 2024, denying the treatment plan for chiropractic services, is deficient because the Insurer Examination (IE) report of Dr. Lee, which the respondent refers to in its denial letter, failed to analyse the injuries identified during Dr. Lee’s physical examination of the applicant in comparison with the injuries listed under Part 6 of the treatment plan. The applicant relies on the Divisional Court decision of Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (“Hedley”), in which the Court states that reasons for a denial must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination.
12The respondent submits that the letter meets the requirements of s. 38(8) of the Schedule.
13The denial letter of November 27, 2024 states as follows:
Dr. Seung-Jun Lee, opined ‘The Treatment and Assessment Plan (OCF-18) – in dispute, is considered neither reasonable nor necessary as I did not identify any ongoing accident-related musculoskeletal impairments that would necessitate chiropractic therapy or acupuncture therapy.
14I find that this meets the requirements of s. 38(8) because it sets out the specifics of the applicant’s condition that formed the basis for its decision, specifically a lack of any ongoing accident-related musculoskeletal impairments that would necessitate the proposed treatments. I further find that this information would allow the applicant to make an informed decision about whether or not to dispute the respondent’s submission because it is clear that the respondent’s decision is based on Dr. Lee’s assessment of the applicant’s lack of accident-related musculoskeletal impairments. The applicant can therefore easily determine if he has evidence to contradict or refute Dr. Lee’s assessment and decide whether or not to dispute the respondent’s decision.
15I am not persuaded by the applicant’s submissions that Dr. Lee’s report is “statutory deficient” because it failed to properly analyse the applicant’s injuries and compare them to those set out in the treatment plan and did not state whether the applicant had achieved maximal recovery. Any issues with the substance or form of Dr. Lee’s report may be relevant to an analysis of whether the treatment plan is reasonable and necessary, but is not relevant to an analysis of whether the respondent’s denial letter is sufficient under s. 38(8). The denial letter makes it clear which findings from Dr. Lee’s report formed the basis of the respondent’s decision. This is sufficient to meet the requirements of s. 38(8).
16The applicant provided no medical documents to support his claim other than the disputed treatment plan itself. The applicant made no submissions respecting whether the disputed treatment plan is reasonable and necessary under s. 15 of the Schedule. I therefore find that the applicant has not proven, on a balance of probabilities, that he is entitled to the treatment plan for chiropractic treatment.
The applicant is not entitled to the treatment plan for an in-home assessment
17Section 42(1) of the Schedule provides that an application for attendant care benefits for an insured person must be in the required form (Form 1) and prepared and submitted to the insurer by an occupational therapist or a registered nurse.
18Section 25(1)4 of the Schedule provides that the insurer shall pay for reasonable fees charged by an occupational therapist or registered nurse for preparing an assessment of attendant care needs under s. 42, including any assessment or examination necessary for that purpose.
19Section 32(2)(c) of the Schedule provides that the insurer must promptly provide information to assist a person in applying for benefits.
20The applicant submits that upon advising the applicant that he was removed from the MIG, pursuant to its letter of November 27, 2024, the respondent was required to invite the applicant to submit a Form 1 to apply for attendant care benefits. The applicant submits that the letter denying the treatment plan for an attendant care assessment, which is dated January 28, 2025, is deficient because it violates the above-referenced sections of the Schedule to deny an attendant care assessment to an applicant who has been removed from the MIG.
21The respondent submits that its denial letter dated January 28, 2025 set out its medical reasons and all of the other reasons for the denial, in accordance with s. 38(8) of the Schedule.
22The denial letter of January 28, 2025 denies the proposed treatment plan for an in-home attendant care assessment for the following reasons:
i. You reported to the medical examiners, Dr. Cindy Goodfield, Psychologist, and Dr. Seung Jun Lee, MD, that you are independent with your self-care which is noted in the recent section 44 Medical reports dated November 7, 2024.
ii. You have reported that you continue to drive.
iii. The disputed OCF-18 indicates there is no barrier to recovery.
iv. It is 1 year since the accident and Attendant Care needs assessment is done within the acute stage of injuries and there is no worsening of your physical condition based on the medical information on file.
v. No new compelling medical information received provided to warrant this type of assessment and at this point in your accident benefit claim.
23I find that the above reasons for the denial comply with the requirements of s. 38(8). The specific details of the insured’s condition that formed the basis of the respondent’s denial are the applicant’s reports to Dr. Lee and Dr. Goodfield that he is independent with his self-care and continues to drive. The letter also makes clear that the respondent considered the lack of a documented barrier to recovery, the lack of medical information indicating a worsening of the applicant’s physical condition, and the lack of any other medical information that might warrant an attendant care assessment. I find that the information provided in this letter provide the applicant with notice of the basis for the respondent’s decision and the letter is therefore sufficient to enable the applicant to determine whether to accept or dispute that decision.
24I am not persuaded by the applicant’s submissions that the denial letter does not comply with s. 32(2)(c) or s. 25(1)4 of the Schedule. Section 38(11) of the Schedule provides for the mandatory payment of a treatment plan if the denial letter fails to comply with s. 38(8) of the Schedule only. Even if I were to find that the denial letter failed to comply with other sections of the Schedule, the applicant’s submissions did not provide a basis for how this would entitle him to payment of the disputed treatment plan.
25As above, the applicant provided no medical documents to support his claim other than the disputed treatment plan and made no submissions respecting whether the disputed treatment plan is reasonable and necessary. Therefore, I find that the applicant has not proven that he is entitled to the disputed treatment plan for an in-home attendant care assessment.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no overdue benefits, therefore the applicant is not entitled to interest.
Award
27The 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 there are no benefits withheld or delayed, the respondent is not liable to pay an award.
ORDER
28I find that:
i. The applicant is not entitled to the treatment plan for chiropractic services;
ii. The applicant is not entitled to the treatment plan for an in-home assessment;
iii. The respondent is not liable to pay an award under s. 10 of Reg. 664; and
iv. As there are no overdue benefits, the applicant is not entitled to interest.
Released: May 7, 2026
Caley Howard
Adjudicator