Licence Appeal Tribunal
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:
A. B-J.
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION
ADJUDICATOR: Anita Goela
APPEARANCES:
Counsel for the Applicant: Marni Miller
Counsel for the Respondent: Patrick Baker
Written Hearing: September 17, 2018
REASONS FOR DECISION
OVERVIEW
1The applicant was involved in an automobile accident on June 7, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline1 (“the MIG”). The applicant’s position is the opposite – that his impairments fall outside of the MIG. Additionally, the applicant submits that the respondent’s denial of the disputed treatment plan did not meet the notice requirements as set out in the Schedule.
3If the applicant’s position is correct, then I must address if the medical treatment claimed is reasonable and necessary.
4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.
ISSUES
5The specific legal issues I have to decide in this appeal are as follows:
i. Are the applicant’s injuries predominantly minor in nature as defined by the Schedule?
6If the applicant’s injuries are not within the MIG, then I must determine the following issues:
ii. Is the applicant entitled to a medical benefit in the amount of $2,992.50 for physiotherapy services as recommended and set out in a treatment plan dated April 26, 2016 submitted by [a Physiotherapy and Rehab clinic]?
iii. Is the applicant entitled to interest on any overdue amounts owing?
iv. Is the applicant entitled to a s.10 award under Regulation 664 because the respondent unreasonably withheld or delayed payment of a benefit?
RESULT
7I find the following:
i. the respondent did not provide proper notice to the applicant of its denial;
ii. the applicant is not subject to the MIG;
iii. the applicant is entitled to the medical benefit set out in the treatment plan;
iv. the applicant is entitled to interest on the outstanding amount; and
v. the applicant’s claim for a section 10 award is dismissed.
ANALYSIS
Proper denial pursuant to section 38(8)
8Section 38(8) of the Schedule provides that the insurer shall give the insured person notice when it denies benefits that provide the medical reasons and other reasons why the insurer considers the benefits not to be reasonable and necessary. Section 38(9) provides that if the insurer believes that the MIG applies to the insured person’s impairment, the notice under subsection (8) must so advise the insured person. Finally, section 38(11) provides that if the insurer fails to give proper notice, the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and is liable to pay for the disputed benefits.
9The applicant submits that the respondent did not provide a proper denial as required in section 38 of the Schedule and therefore, the respondent shall pay for the physiotherapy treatment in the disputed treatment plan pursuant to section 38(11). The respondent’s denial, dated May 10, 2016, is reproduced in relevant part below:
“Please be advised that we are in receipt of your Treatment and Assessment Plan (OCF-18) prepared by Tavakolnia Shahla of [a Physiotherapy and Rehab clinic] in the amount of $2,992.50, and dated April 26, 2016, has been denied. The maximum amount of medical and rehabilitation funds available to a person with a minor injury is $3500; this amount is inclusive of the treatment received within the Minor Injury Guideline. At this time, your treatment under $3,500 medical and rehabilitation limit has been exhausted. If you require further treatment to reach maximum medical recovery, please provide compelling medical evidence that you will be prevented from achieving maximum