Suradej Koonsakda v. Wawanesa Insurance, 2021 CanLII 45645

Licence Appeal Tribunal

Citation: Koonsakda v. Wawanesa Insurance, 2021 ONLAT 20-001738/AABS

Release date: 05/28/2021

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:

Suradej Koonsakda Applicant

and

Wawanesa Insurance Respondent

DECISION AND ORDER

ADJUDICATOR: Amanda Marshall

APPEARANCES:

For the Applicant: Ray Di Gregorio, Counsel

For the Respondent: Elizabeth Scott, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was injured in an accident on September 12, 2015, and sought various benefits from the respondent, Wawanesa Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). The respondent Wawanesa Insurance Company denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

2A case conference was held on July 13, 2020. The parties agreed to a hybrid hearing with written submissions due after the oral hearing. On February 17, 2021, the applicant filed a Notice of Motion requesting an extension to the due date for written submissions. The respondent consented to the applicant’s motion on February 18, 2021. Vice Chair Ian Maedel granted the applicant’s extension request. He also vacated the dates for the oral hearing portion as the parties agreed to change the format to a written hearing only.

ISSUES IN DISPUTE

3The following issues are in dispute:

1. 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 limit and in the MIG?
2. If the applicant’s injuries are not considered to be predominantly minor, i. Is the applicant entitled to $3,019.00 for chiropractic services, recommended by Dr. Angelo Frisina in a treatment plan (OCF-18) dated January 8, 2018 and denied on February 5, 2018?
3. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I have considered all the evidence submitted by each party and, for the reasons that follow, I have determined that:

I. The applicant has not demonstrated that his accident-related impairments warrant treatment beyond the MIG. It is therefore unnecessary to consider the reasonableness and necessity of the January 8, 2018 treatment plan.

II. Wawanesa’s denial letter of January 18, 2018 did not meet the requirements of s. 38(8) of the Schedule, as it did not provide the required medical reasons indicating why the MIG applies to the applicant’s impairments.

III. Therefore, Wawanesa is prohibited from taking the position that the MIG applies with respect to this treatment plan, pursuant to s. 38(11)1.

IV. While Wawanesa’s January 18, 2018 did not meet the requirement of s. 38(8), their February 5, 2018 denial letter does comply with s. 38(8). Therefore, pursuant to s. 38(11)2, Wawanesa shall pay for any incurred treatment from the 11th business day from the date they received the treatment plan to February 5, 2018, the date of their proper denial, plus any