Tam v. TD General Insurance Company, 2026 CanLII 6207

Licence Appeal Tribunal

Citation: Tam v. TD General Insurance Company, 2026 ONLAT 24-005207/AABS

Licence Appeal Tribunal File Number: 24-005207/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:

Matthew Tam

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel

For the Respondent: Noura Bagh, Counsel

HEARD: By way of written submissions

OVERVIEW

1Matthew Tam, the applicant, was involved in an automobile accident on June 2, 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 section 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 $4,348.56 for chiropractic services, proposed by Uheal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated October 17, 2023?

iii. Is the applicant entitled to $2,144.93 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan dated October 17, 2023?

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

v. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is subject to the MIG.

4As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

5The treatment plans are not payable pursuant to section 38.

6As there are no overdue benefits, the applicant is not entitled to interest.

7The applicant is not entitled to an award under section 10 of Regulation 664 because no payments were unreasonably withheld or delayed.

ANALYSIS

Application of the Minor Injury Guideline

8I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG limit.

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.”

10The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.

11The applicant submits that he has ongoing pain and psychological injuries as a result of the accident. The applicant’s submissions are focussed on the respondent’s failure to comply with section 38(8) and 44(1) of the Schedule. The applicant argues that the respondent’s non-compliance with section 38 should result in the applicant’s removal from the MIG.

12I am not persuaded by the applicant’s submission. I find that, based on the binding decision of the Divisional Court in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng, Cai”), an improper denial does not result in an applicant being removed from the MIG for the entirety of the claim. Rather, the respondent is prohibited from taking the position that the impairment falls within the MIG with respect to the specific OCF-18 for which a non-compliant notice is given and must pay the costs incurred under those plans until a compliant notice is given.

13I find the applicant has not established grounds for his removal from the MIG and he remains within the MIG because he has not referred me to evidence to meet the legal test on this issue. Further, pursuant to Zheng, Cai, he cannot be removed from the MIG as a result of any contraventions of section 38(8), but rather, the respondent would be subject to the shall-pay provision in section 38(11) for the treatment plans.

Does the applicant have chronic pain with functional impairment or a psychological impairment that warrants removal from the MIG?

14I find the applicant has not met his evidentiary onus to prove that he suffers from chronic pain or a psychological injury as a result of the accident.

15The applicant relies on the treating practitioner’s notes in the OCF-18, and the pre-screening psychological consultation report dated October 3, 2023, by Crystal Ka Wun Ng, social worker.

16The pre-screening psychological report notes the applicant self-reported injuries include physical, psychological, behavioural and cognitive difficulties. The applicant self-reported “severe pain in his neck, back and tummy.” The report states the applicant is “in need of a full psychological assessment.” While this may be evidence of the applicant’s symptom reporting, it is out scope for a social worker to diagnose a psychological impairment.

17The respondent submits that the applicant has not met his onus to demonstrate he requires treatment outside of the MIG, and his injuries are predominantly minor. The respondent relies on the section 44 physiatry report, and section 44 psychology report both dated June 5, 2024.

18The section 44 physiatry report, prepared by Dr. Alborz Oshidari, physiatrist, includes a physical examination, interview, and clinical observations. Dr. Oshidari notes the applicant’s injuries are minor including sprain/strain injury of cervical and thoracic spine and treatable within the MIG limit.

19The section 44 psychology report, prepared by Ms. Zubina Ladak, psychologist, and assisted by Ashvinie Sritharan, psychological associate. The section 44 report includes standardized psychological tests, interview and clinical observations. Ms. Ladak notes the applicant “has not sustained a clinically significant (psychological) impairment” and his resulting injuries meet the criteria of a minor injury.

20I place less weight on Ms. Ng’s pre-screening psychological report because the report is based on the applicant’s self reporting, there are no objective testing measures noted in the report, there is no formal diagnosis of a psychological injury or impairment, and there are no notes of the severity of pain experienced as a result of his accident-related impairments.

21The applicant has not directed me to evidence of chronic pain or a functional impairment and has not directed me to evidence that he shows signs of a psychological injury that would warrant removal from the MIG and require treatment outside of the MIG limit. Relying on alleged weakness in the respondent’s evidence alone is insufficient to meet the applicant’s burden of demonstrating the treatment plan is reasonable and necessary.

22I find on a balance of probabilities that the applicant has not met his onus and is subject to treatment within the MIG limit. In review of the evidence, the applicant’s claim of chronic pain or a functional impairment, or a psychological injury is not supported because it is out of scope for a social worker to diagnose a psychological injury and the medical evidence before me does not corroborate that his accident-related injuries warrant removal from the MIG.

Are the treatment plans reasonable and necessary?

23Having found that the applicant is subject to the MIG. I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

24The applicant also makes arguments that the treatment plans are payable pursuant to section 38 of the Schedule. I will now turn to these arguments.

Are the denials compliant with section 38(8) of the Schedule?

25I find the respondent’s explanation of benefit letters dated October 27, 2023 and June 18, 2024 are compliant with the requirements under section 38(8) of the Schedule.

26Section 38(8) and section 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 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.

27The applicant submits the denial notices are not compliant because they are “boilerplate”, and the respondent ignored the injuries noted within the OCF-18 dated October 17, 2023 and the respondent did not provide medical reasons for the denial. The applicant relies on the OCF-18s, and the respondent’s denial letters dated October 27, 2023, and June 18, 2024.

28The respondent submits the treatment was denied on the basis that the applicant was within the MIG and there is no medical evidence to support the applicant’s injuries require treatment beyond the MIG limit.

29Upon review of the evidence and the submissions, I find that the respondent’s denial letters satisfy the requirements in section 38(8) and considered in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT). In T.F. v. Peel, the Tribunal concluded that the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process. While T.F. v. Peel is not binding upon me, I agree with the reasoning in it and its application.

30The denial letter dated October 27, 2023 refers to the treatment plan and amount. The letter lists the injuries noted in the proposed OCF-18, and “there is no compelling medical evidence to support” the therapy, and a second opinion is required by an insurer’s examination.

31The denial letter dated June 18, 2024 refers to the treatment plan and amount. The letter states “your injuries meet the criteria of a minor injury from a physical and psychological perspective.” The letter refers to the findings of Drs. Oshidari and Ladak and notes the applicant “sustained uncomplicated soft tissue injury of sprain and strain of the cervical and thoracic spine as a result of the motor vehicle accident” and the applicant “does not meet the criteria for a formal DSM-5 diagnosis” with no evidence of any pre-existing psychological or psychiatric conditions.

32I find each denial letter clearly states the benefit in dispute, refers to the applicant’s injuries, and the reason for denial. The respondent made requests for additional information, referred to section 44 reports, and the letters allow an unsophisticated person to understand the denial and make an informed decision.

33In sum, I find the applicant has not established that the respondent’s denial notices, dated October 27, 2023 and June 18, 2024 are non-compliant with section 38(8), and therefore they are not payable under section 38(11).

Interest

34Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As no benefits are owed, no interest is payable.

Award

35The applicant sought an award under section 10 of Regulation 664. Under section 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 Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

36The applicant submits that the respondent unreasonably withheld or denied payment the OCF-18s. The applicant relies on the clinical notes and records of Dr. Heung Wing Li, family physician, and the pre-screen report by Crystal Ka Wun Ng, social worker.

37There are no benefits that have been withheld or delayed unreasonably. I find the applicant has not met his onus to prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed the benefits in dispute, and an award is not appropriate in this case.

ORDER

38The applicant is subject to the MIG.

39As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

40The treatment plans are not payable pursuant to section 38.

41As there are no overdue benefits, the applicant is not entitled to interest.

42The respondent is not liable to pay an award.