Citation: Al Fakih v. Aviva Insurance Company of Canada, 2025 ONLAT 23-012984/AABS

Licence Appeal Tribunal File Number: 23-012984/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:

Mohanad Al Fakih

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Georgiana Masgras, Counsel

For the Respondent:

Hilary Doyle, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mohanad Al Fakih, the applicant, was involved in an automobile accident on July 19, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

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 Minor Injury Guideline (“MIG”) limit?
2. Is the applicant entitled to $4,373.10 for a psychological assessment, proposed by Meditecs in a treatment plan/OCF-18 (“treatment plan”) submitted July 31, 2023?
3. Is the applicant entitled to $2,726.00 for a functional abilities evaluation, proposed by Meditecs in a treatment plan submitted July 31, 2023?
4. Is the applicant entitled to $4,794.72 for chiropractic services, proposed by Spinetec HealthCare Solutions in a treatment plan submitted July 31, 2023?
5. Is the applicant entitled to $2,867.95 for an attendant care assessment, proposed by Meditecs in a treatment plan submitted July 31, 2023?
6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant is not entitled to any of the treatment plans in dispute, nor are they payable under s.38(11).
2. As no payments are owing, no interest is due.
3. The applicant is not entitled to an award.
4. The application is dismissed.

ANALYSIS

Applicability of the MIG

4In his initial submissions, the applicant submits that he should be removed from the MIG because he is suffering from chronic pain as a result of his accident-related injuries. The respondent submits evidence that the applicant was removed from the MIG on September 13, 2024. Although the respondent directed me to correspondence dated September 13, 2024, this correspondence was not included in the respondent’s evidence, and the EOB partially approving the applicant’s psychological treatment did not reference a MIG removal. However, the applicant did not provide reply submissions to refute the respondent’s evidence that he has been removed from the MIG. As MIG determination no longer appears to be an issue in dispute, it is not necessary for me to consider whether the applicant should be removed from the MIG as a result of chronic pain.

5The applicant has not made specific submissions with respect to whether the treatment plans in dispute are reasonable and necessary, or directed me to any evidence to corroborate the treatment plans. Given the lack of submissions or evidence as to the reasonableness and necessity of the proposed treatment plans, I find that the applicant has not established entitlement to any of the treatment plans in dispute. Instead, the applicant submits that none of the respondent’s denials are compliant with s.38(8) of the Schedule, because they lack sufficient medical reasons, and that the treatment plans are all payable in accordance with s. 38(11).

Section 38

6Sections 38(8) and 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 ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

7If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

Is the applicant entitled to $4,373.10 for a psychological assessment in a treatment plan submitted July 31, 2023?

8The applicant submits that the treatment plan for $4,373.10 prepared by Dr. Tobias Chung, chiropractor was denied by the respondent on August 2, 2023. However, the respondent submits that the treatment plan was partially approved in the amount of $2,200.00, as set out in the EOB dated September 13, 2024, which was more than 2 months before the applicant’s submissions were filed. Therefore, the amount remaining in dispute for this treatment plan is $2,173.10.

9The applicant submits that the August 2, 2023 explanation of benefits (“EOB”) was not compliant with s. 38(8) because it did not contain sufficient medical reasons. The respondent counters that the denial was valid.

10The EOB states that the respondent has not received compelling medical evidence that the applicant suffers “from a psychological impairment as a result of the accident that would prevent you from achieving maximum medical recovery within the Minor Injury Framework.”

11While an insurer is not required to fabricate medical reasons where no medical evidence has been provided, the EOB does not identify any information that the respondent requires. The EOB mentions the $3,500.00 MIG limit, without defining a minor injury or referring the applicant to s.3 of the Schedule, and advises the applicant that he is pre-approved for $2,200.00 in medical benefits and assessments, including $400 for any “psych social impairment” and that the applicant must file an OCF-3, which I find to be confusing.

12For these reasons, I find that the EOB is not sufficiently clear or understandable for an unsophisticated person to decide whether or not to dispute the denial. As a result, s.38(11) is engaged.

13The respondent partially approved the treatment plan in a subsequent EOB dated September 13, 2024. In the EOB, the respondent notified the applicant that the treatment plan was approved for $2,200.00, including the assessment and the fee for completing the OCF-18. It explained that it was the maximum amount payable for an assessment under s.25 of the Schedule, and that the respondent would not pay for any of the other services, which included $1,000.00 in additional documentation fees, $360.00 for interpretation fees, $350.00 in transportation fees, and $503.00 in taxes. The EOB also set out the hourly rates that the respondent would pay for a psychotherapist or psychologist in accordance with the Professional Services Guidelines.

14The applicant made no submissions with respect to the September 13, 2024 EOB.

15I find that the September 13, 2024 EOB was clear and unequivocal, and was sufficiently understandable for an unsophisticated person to decide whether or not to dispute the partial denial.

16As the applicant has not directed me to any evidence that the treatment plan was incurred within the period of non-compliance, I find that the remaining balance of $2,173.10 for a psychological assessment in the treatment plan dated July 31, 2023 is not payable in accordance with s.38(11).

Is the applicant entitled to $2,726.00 for a functional abilities evaluation(FAE) in a treatment plan submitted July 31, 2023?

17I find that the August 2, 2023 EOB denying the OCF-18 in the amount of $2,726.00 for an FAE, prepared by Dr. Chung is compliant with s. 38(8).

18The applicant submits that the denial notice is not compliant with s, 38(8) because it does not provide sufficient medical reasons. The respondent argues that the EOB is compliant.

19I agree with the respondent, because the EOB is a clear and unequivocal denial. The EOB does not specifically identify the applicant’s injuries, but it does explain that it has not received medical records from the applicant’s family doctor, or complete records from the applicant’s treating hospital. It identifies the MIG as a medical reason for the denial, includes a definition of minor injury, and refers the applicant to the Schedule. The EOB also notes that the applicant has informed the respondent that he has returned to work, and provides information about the applicants right to dispute the denial and the process by which to do so.

20As such, I find that the EOB is sufficiently clear and detailed for an unsophisticated person to make an informed decision whether to dispute the denial. Therefore, I find that the EOB is compliant with s.38(8), and the treatment plan is not payable under s. 38(11).

Is the applicant entitled to $4,794.72 for chiropractic services, in a treatment plan submitted July 31, 2023?

21I find that the EOB dated August 2, 2023 denying the treatment plan for chiropractic services, prepared by Dr. Chung, is compliant with s.38(8).

22The applicant submits that the EOB in not compliant with s.38(8) because it does not provide sufficient medical reasons. The respondent argues that the EOB is valid.

23I find that the August 2, 2023 EOB is a clear and unequivocal denial. It identifies the goods and services requested. While it does not set out the applicant’s injuries, it requests that the applicant provide complete medical records from his treating hospital as well as any records from his family doctor. The EOB cites the MIG as a medical reason, defines a minor injury, and refers the applicant to the Schedule. The EOB further identifies that the amount sought in the treatment plan exceeds the MIG limit, and informs the applicant that he has been pre-approved for $2,200.00, and that the respondent will request that Dr. Chung withdraw the OCF-18 and file a treatment confirmation form OCF-23.

24Overall, I find that the EOB is sufficiently clear and detailed for an unsophisticated person to decide whether or not to dispute the notice.

25As such, I find that the EOB is compliant with s.38(8) and the treatment plan is not payable under s. 38(11).

Is the applicant entitled to $2,867.95 for an attendant care assessment in a treatment plan submitted July 31, 2023?

26I find that the EOB dated August 2, 2023 is a valid denial.

27The applicant submits that the August 2, 2023 EOB denying $2,867.50 for an attendant care assessment in a treatment plan dated July 31, 2023 does not comply with s.38(8) and the treatment plan is therefore payable under s.38(11). The respondent argues that the EOB is a valid denial.

28I agree with the respondent, and find that the EOB is a clear and unequivocal denial. It identifies the MIG as a medical reason, provides a definition of minor injuries, and refers the applicant to the Schedule. Further, the EOB explains that the applicant is not entitled to attendant care benefits if his accident-related injuries are minor, and cites s.14.2 of the Schedule.

29I find that the EOB is sufficiently clear and understandable for an unsophisticated person to make an informed decision whether or not to dispute the denial.

30Therefore, I find that the EOB is compliant with s.38(8) and the treatment plan is not payable under s. 38(11).

Interest

31As no payments are owing, no interest is due.

Award

32The 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.

33As the applicant has not made any submissions with respect to an award, and I have found that no payments are owing to the applicant, I find that the applicant has not met his onus to prove that the respondent unreasonably withheld or denied the payment of benefits.

ORDER

34I find that:

1. The applicant has not established entitlement to any of the treatment plans in dispute.
2. As no payments are owing, no interest is due.
3. The applicant is not entitled to an award.
4. The application is dismissed.