Licence Appeal Tribunal File Number: 24-003097/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:
Le Zeng
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Matthew Frontini
APPEARANCES:
For the Applicant: Rakesh Sharma, Counsel
For the Respondent: Anthony M Naples, Counsel
HEARD: By way of written submissions
OVERVIEW
1Le Zeng, the applicant, was involved in an automobile accident on March 10, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The respondent raised a preliminary issue in respect of a treatment plan for a psychological assessment, described below in subparagraph 4(iii). The respondent requested an order that the applicant is barred from proceeding to a hearing in respect of this treatment plan because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule.
3While the parties provided submissions, based on my finding below regarding the applicability of the MIG, this preliminary issue became moot does not need to be decided.
ISSUES
4The 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 $3,897.20 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) submitted August 15, 2023?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessment and Treatment Clinic in a treatment plan submitted May 10, 2023?
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
5I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit. As the applicant is in the MIG, assessing whether the plans in dispute are reasonable and necessary is unwarranted and he is not entitled to interest. The respondent is not liable to pay an award. The application is dismissed.
ANALYSIS
The applicant is not removed from the MIG
6The applicant is not removed from the MIG. He has not established on a balance of probabilities that he has suffered more than a minor injury because of the accident
7Section 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.”
8An 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 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 functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
9The applicant has not made substantive submissions regarding removal from the MIG. The applicant has not addressed the definition of a minor injury in s. 3(1) of the Schedule or presented compelling or corroborating medical evidence in support of the position that the applicant’s injuries fall outside of that definition. While the applicant makes reference to the MIG being considered in connection with specific disputed treatment plans, it is only for the proposition that because the treatment plans require funding beyond the MIG limits, the applicant is outside of the MIG. The applicant’s submissions are not supported by any authority and are contrary to the well-established legal tests arising from the Schedule. I will instead focus on the applicable legal test to the issues in dispute in this application.
10The applicant’s argument is essentially that he is removed from the MIG because of the operation of s. 38(1) and 38(3) of the Schedule. In the applicant’s submission, treatment plans submitted in compliance with these subsections are automatically deemed to be reasonable and necessary. As these plans require funding beyond the MIG limits, and because they are automatically deemed reasonable and necessary, the applicant is therefore removed from the MIG. In the applicant’s conceptualization of the Schedule, the applicant’s burden is described as follows:
A trial by written hearing is limited to the denial reasons arising out of the adjudication of the claim in respect of the benefits applied by the applicant. The denial reasons were served upon the applicant by the respondent by a notice required under section 54 of the Schedule and the applicant’s onus to disprove the reasons on the balance of probabilities to prove entitlement to the denied benefits.
(emphasis added)
11The applicant’s submissions go on to focus on alleged errors in the denials provided by respondent in accordance with s. 38 of the Schedule rather than whether there is medical evidence that establishes on a balance of probabilities that he has suffered more than a minor injury as a result of the accident. The applicant’s articulation of his onus is contrary to the binding guidance of the Divisional Court that “…the burden remains on the insured throughout to establish entitlement to the appropriate level of benefits.” Scarlett v Belair Insurance, 2015 ONSC 3635 at para 24.
12Given the applicant’s lack of submissions on the issue of the MIG, and what, if any, injuries suffered in the accident are more than “minor”, I find that he has not established on a balance of probabilities that removal from MIG is warranted.
The treatment plans in dispute
13As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. Because I do not need to consider the treatment plans, the preliminary issue of whether the applicant is barred from proceeding to a hearing on his entitlement to one of these treatment plans, a psychological assessment, is moot.
Interest
14Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to the disputed treatment plans, no payments are overdue, and interest does not apply.
Award
15The 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.
16As the respondent did not withhold or delay any payment of benefits, I find that the applicant has not established that he is entitled to an award.
ORDER
17I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit. As the applicant is in the MIG, assessing whether the plans in dispute are reasonable and necessary is unwarranted and he is not entitled to interest. The respondent is not liable to pay an award. The application is dismissed.
Released: January 26, 2026
Matthew Frontini
Adjudicator