Licence Appeal Tribunal File Number: 24-000181/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:
Amalawa Aiyamenkhue
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Eric Winkworth, Counsel
For the Respondent: Mark Vella, Counsel
HEARD: In Writing
OVERVIEW
1Amalawa Aiyamenkhue, the applicant, was involved in an automobile accident on June 22, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva 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 $6,004.20 for medical services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 ("plan") dated August 4, 2023?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to $6,004.20 for medical services proposed by Mackenzie Medical Rehabilitation Centre. Interest and an award are not payable. The application is dismissed.
ANALYSIS
Has the Respondent issued a compliant denial?
4The applicant has not met her onus to establish that she is entitled to the medical services in dispute.
5Section 38(8) requires insurers to give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
6Section 38(11) states that should the insurer fail to issue a valid notice, the insurer is prohibited from claiming the MIG as a reason for the denial, and the insurer shall pay for all goods and services incurred by the applicant until it gives the required notice.
7The applicant submits that the insurer wrongly relied upon the MIG as the reason for its denial.
8The applicant relies upon Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, submitting that the Court of Appeal has confirmed that the reason offered for the denial must be medical and/or statutory.
9The applicant also relies upon the reconsideration decision of T.F. v Peel Mutual Insurance Company, 2018 ON LAT 39373, which determined that the insurer has a responsibility to issue a notice with specific details about the insured’s condition forming the basis for the insurer’s decision, or identifying information that the insurer does not have but requires.
10The applicant submitted the treatment plan on August 19, 2023. The respondent issued a denial letter on September 27, 2023. The respondent concedes that their denial was not issued in a timely manner in accordance with the Schedule. As such they have agreed to pay for any incurred treatments received by the applicant from August 19, 2023, the date that it was received by the insurer, to September 27, 2023, the date the denial notice was issued. It does note, however, that according to its records, no treatments were incurred between those dates.
11The insurer argues that, aside from the timeliness issue, the September 27, 2023 denial was compliant with the Schedule.
12The denial letter states that the medical information on file indicates that the applicant was to receive physiotherapy for one month, effective July 18, 2016 - the last time the applicant received treatment.
13The letter states, “No clinical notes have been provided in the intervening seven years to document an ongoing impairment related to the accident.” The letter also stated that the insurer does not believe that the goods and services requested July 21, 2023 are a direct result of the applicant’s accident related impairment. The letter also mentions that the applicant would be subject to the Minor Injury Guideline (‘the MIG’).
14This reference to the MIG has caused the applicant to argue that the denial letter is not compliant. The applicant argues that the respondent cannot refer to the MIG in their denial letter.
15I find the respondent’s denial letter compliant with the Schedule. I find the primary reason offered by the respondent clearly states with specificity the reason for the denial in compliance with the Schedule. The letter notes the absence of any further medical evidence in the intervening seven years. The statements specifically identifying the scarcity of medical evidence, and noting that the last clinical note on file recommended physiotherapy for one month both lend credence to the respondents argument that their denial letter was not a mere ‘boilerplate’ statement.
16Further, while one could argue if those statements are a ‘medical’ reason for denial, Varriano states that the word “and” is conjunctive, meaning an insurer can issue a denial, stating a medical and/or another reason, however that insurer is not obligated to provide both a medical and another reason if no medical reason exists. In this case, the insurer has stated their reasoning clearly.
17In summary – the insurer has offered a valid medical reason for the denial in so far as the medical information they have on file does not support the need for further treatment. While one may argue that their information is incorrect, being mistaken about issues such as last known treatment dates does not render the denial letter non-compliant.
18While the respondent made further reference to the MIG, I do not believe this is the primary reason for denial. The primary reason refers specifically to the scarcity of medical evidence. This secondary reference to the MIG does not invalidate their primary reason offered. While the applicant may argue that the Schedule prohibits the insurer from relying upon the MIG as a primary reason for the denial, I do not believe that the respondent has done so.
19For these reasons, I find on the balance of probabilities that the applicant has not met her onus to prove the insurer has issued a denial letter which is not in compliance with the schedule.
Is the applicant entitled to the treatment plan
20The applicant is not entitled to the treatment plan.
21To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
22The applicant has requested 20 sessions of various physio, acupuncture and chiropractic therapy. The goals are increased range of motion, pain reduction and increased strength, with a functional goal of a return to the activities of normal living and modified work activities.
23The applicant has the onus to establish that the proposed treatment is reasonable and necessary. Despite having the onus, the applicant has submitted very limited supporting medical evidence. I have not been directed to clinical notes and records from any treatment provider which supports the claim that the treatments are reasonable and necessary.
24For this reason, I find that the applicant, on a balance of probabilities, has not met her onus to prove that she is entitled to the treatment plan in dispute.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
26The 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 no benefits were unreasonably withheld or delayed, no award is payable.
ORDER
27The application is dismissed.
i. The applicant is not entitled to physiotherapy services.
ii. No interest or award are payable.
Released: November 10, 2025
Jeff Chatterton Adjudicator