Licence Appeal Tribunal File Number: 24-003795/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:
Sukhwinder Dhamrait
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Haider Bahadur, Counsel
For the Respondent:
Michael Chadwick, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Sukhwinder Dhamrait, (the “applicant”), was involved in an automobile accident on September 27, 2019, 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 Aviva General Insurance (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2Is the applicant barred from proceeding to a hearing for the benefits set out below as issue i. and ii. because the applicant failed to dispute the respondent’s denial within the 2-year limitation period.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $4,348.58 for Chiropractic Services, proposed by PhysioCare in a treatment plan/OCF-18 dated June 30, 2020?
ii. Is the applicant entitled to $2,000.00 for an Attendant Care Assessment, proposed by PhysioCare in a plan dated November 12, 2020?
iii. Is the applicant entitled to $4,285.00 for Physiotherapy Services, proposed by PhysioCare in a plan dated October 17, 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
4The applicant is barred from proceeding to a hearing for issues i. and ii. listed above pursuant to Section 56 of the Schedule.
5The applicant is not entitled to $4,285.00 for physiotherapy services because it is not reasonable or necessary and because the respondent’s denial letter is in accordance with s.38(8).
6The applicant is not entitled to an award.
7As no benefits are owing, interest is not owing.
8The application is dismissed.
ANALYSIS
Preliminary Issues: Section 7 & 56
9I find that the applicant is barred from proceeding to a hearing for claiming entitlement to the disputed benefits because she failed to dispute the respondent’s denial of the benefits for issues i. and ii. above within 2 years. In addition, I choose not to invoke section 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”), and extend the applicant’s deadline to file an application.
10Pursuant to section 56 of the Schedule, the applicant has two years from the date of the denial to apply to the Tribunal to dispute the respondent’s decision. The limitation clock begins once the applicant receives proper notice of the denial. The notice must clearly and unequivocally deny the benefit, provide the medical and any other reasons for the decision, and must include information on the applicant’s right to dispute the decision.
11It is well established that, to determine whether a denial is proper, it must be in accordance with the principles outlined in Smith v Cooperators General Insurance Company, 2002 SCC 30. The Court of Appeal in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 confirmed that the limitation period is triggered once proper notice of denial is provided regardless of the correctness of the insurer’s reasons for denial.
12If the respondent’s denial satisfies these requirements and the applicant fails to dispute the respondent’s denial within two years, then the onus is on the applicant to establish reasonable grounds for an extension under Section 7 of the LAT Act. Section 7 allows the Tribunal to extend a limitation period for filing an appeal. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors set out in Manuel v. Registrar, 2012 ONSC 1492 (”Manuel”),to determine if the justice of the case requires the extension. The factors to consider when determining whether to extend the limitation period are explained in Manuel.
13To determine if the justice of the case requires the extension, the factors to consider when determining whether to extend the limitation period are length of delay, a bona fide intention to appeal within the appeal period, the prejudice to the other side, and the merits of the appeal.
14The respondent submits that the denials dated August 31, 2020, and December 30, 2020, are clear and unequivocal, and that the applicant has failed to meet the two-year limitation period to file an application. The respondent submits that the limitation period was extended by the Emergency Management and Civil Protection Act, that was in place between March 16, 2020, and September 14, 2020, which served to extend the limitation period for issue i. by 14 days and does not affect issue ii.
15The respondent submits that there are no grounds to extend the limitation period pursuant to s.7 of the LAT Act.
16The applicant argues that while the respondent denied the treatment plans dated June 30, 2020, and November 12, 2020, the respondent’s position that the two-year limitation period has expired is without merit. She argues that while the treatment plans were submitted in 2020, the limitation period under s.56 does not apply because the respondent arranged for new s.44 assessments on March 25, 2022, and that a new denial letter was issued by the respondent on March 28, 2022, therefore, the respondents denial constitutes a clear and substantive reconsideration of the claims.
17The applicant submits that as the respondent relied on new s.44 assessments in its denial the limitation period restarts from the most recent denial, namely March 28, 2022, and that as this application was filed on March 25, 2024, the plans are disputed within the two-year limitation period.
18In her reply to submissions the applicant argues that while her primary position is that the respondent’s March 28, 2022 reset the limitation period, it argues that if the Tribunal determines the original denials operative, she would meet the criterion set out in Manuel for an extension because she had a bona fide intention to pursue her claim: the delay was minimal and arose in part due to insurer inaction; there is no prejudice to the respondent; and the case has strong merits supported by her treating health professionals.
19For the reasons that follow I find that the applicant is barred from proceeding to a hearing on issues i. and ii above because she failed to dispute the respondent’s denials within the 2-year period in accordance with s.56.
20I find that the limitation period does not reset on March 28, 2022 due to the paper review conducted by the IE assessors based on newly submitted medical records from the applicant because it was the same assessors who conducted the paper review and their findings remain the same and not altered from their initial IE findings and because the respondent’s denial notices are clear and unequivocal in the denial of the benefits, provided the medical and any other reasons for the decision, and include information on the applicant’s right to dispute the decision. In addition, the respondent’s undertaking of a new IE does not invalidate the respondent’s original denial letter.
21The applicant’s remedy is to seek recourse for the denial within the limitation period of two years following the denial and not to submit further applications for the benefits that were denied. Issue i. was denied approximately four years prior to the application and issue ii. was denied approximately three and a half years prior to the application. I was not pointed to reasons of why the applicant waited approximately 4 years and 3 and half years to dispute the respondent’s denials, as such I find that undue prejudice to the respondent would arise if I extended the limitation period in this case. I find that the applicant has not established that the justice of the case supports the Tribunal exercising its discretion to extend the limitation period.
Insurer’s examinations and the denial letters
Issue i.
22Issue i. is a treatment plan for chiropractic services that was denied by the respondent on July 8, 2020, based on the lack of medical evidence that the applicant’s injuries fall outside of the MIG and that her injuries appear predominately minor such as WAD 2 sprain and strain. As the treatment plan is for $4,348.58 it exceeds the MIG limits, accordingly an insurer’s examination (IE) was noted to be required by the respondent. In her IE report dated August 28, 2020, Dr. Jacqueline Auguste, orthopaedic surgeon opined that there are no substantive musculoligamentous, osseous or neurologic impairment linked to the accident and that the applicant’s health practitioner has not provided compelling evidence from a pre-existing medical condition that will prevent her from achieving maximal medical recovery from the MIG.
23On August 31, 2020, the respondent denied the plan based on Dr. Auguste’s report and opined that the plan was not reasonable or necessary because her accident-related injuries fall within the MIG. The denial further explained that the applicant must file an application with the LAT within two years form the denial of her claim or she will lose the right to dispute its decision. Based on the above notices, IE’s and the medical reasons and other reasons for the denial I find that the respondent’s denial notice clearly and unequivocally denied the benefit, provided the medical and any other reasons for the decision, and include information on the applicant’s right to dispute the decision.
Issue ii.
24Issue ii is a plan for an attendant care assessment submitted by the applicant on November 20, 2020, and denied by the respondent on November 27, 2020. In its denial letter the respondent advises the applicant that she has been scheduled for an IE On December 17, 2020, with Dr. Jugnundan, general practitioner. The denial opines that the previous IE did not find impairments that can be causally linked to the accident and no impairment related to your scoliosis. It advises the applicant that it will not consider payment for the recommended treatment plan until the respondent receives the results of the examination. It is important to note that the applicant was removed from the MIG on September 30, 2020, therefore there was no need to reference the MIG in the denial letter and the respondent correctly omitted the MIG in its denial letter.
25In his report dated December 30, 2020, Dr. Jugnundan opines that “The said OCF-18 by Physiocare Wellness Clinic, occupational therapist, November 12, 2020, in the amount of $2000.00 notes areas of injury as the cervical spine, thoracic spine, lumbar spine, sacroiliac joints, and WAD II. This is for an in-home assessment, attendant care benefits, and ancillary services. In my medical opinion, this OCF-18 is not reasonable and necessary. It is noted she is independent with self-care activities. With respect to household chores, she is still independent; however, slower and paced. She has to think about her activities before she does them. On today's evaluation she was not found to be disabled from carrying out her activities in a modified fashion. There was no medical reason to impose any restrictions. Therefore, it is my medical opinion this said OCF-18 is not reasonable and necessary.”
26On December 30, 2020, the respondent denied the OCF-18 based on the Section.44 report from Dr. Jugnundan on the basis that it was not reasonable and necessary and attached the report for the applicant to review. In addition, the letter adds a conclusion from Dr. Jugnundan’s report “The assessors, on page 8 of 10 have recommended: that you be as physically active as possible and engage in a self-directed home exercise program.” The denial letter further informs the applicant of her ability to dispute the denial within the two-year time limit or that she will lose the right to dispute in the alternative.
27Based on the above notices, IE’s and the medical reasons and other reasons for the denial I find that the respondent’s denial notice clearly and unequivocally denied the benefit, provided the medical and any other reasons for the decision, and include information on the applicant’s right to dispute the decision.
ANAYSIS
Substantive Issues
Is $4,285.00 for Physiotherapy Services, reasonable and necessary and did the respondent deny treatment in accordance with Section 38(8) of the Schedule?
28I find on a balance of probabilities that the treatment plan for physiotherapy services is not reasonable and necessary, and that the respondents denial letter is in accordance with s.38(8) of the Schedule.
29To receive payment for a treatment and assessment plan under sections 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.
30Section 38 of the Schedule provides a provision for claims of medical and rehabilitation benefits and for approval of assessments. Section 38(8) reads that within 10 business days after it receives the treatment and assessment plan, the insurer shall 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.
31The applicant in her reply submissions requests the Tribunal’s relief to the plan because it submits that the treatment plan is reasonable and necessary, however her submissions in relation to this treatment plan are solely based on s.38(8) deficiencies, therefore the applicant has failed to prove entitlement based on the plan being reasonable and necessary, accordingly my analysis of the disputed plan will only focus on the applicant’s assertion that the denial is in breach of s.38(8).
32The applicant submits that the denial is inadequate under s.38(8) because it fails to provide clear, individualized explanation for the denial. It argues the respondents simply cites the IE reports and the absence of compelling documents without identifying what findings were relied on how they relate to the proposed plan. It argues that the vague, formulaic response does not enable the applicant to understand or meaningfully dispute the denial.
33The respondent argues that the plan was not subject to an IE and that the letter contains proper medical and or other reasons for its denial and provides instructions as to how to dispute the decision and reproduces s.38 of the Schedule. It argues that by referencing the plan, reproducing s. 38(8), referencing the prior IE’s conclusions of no finding of an impairment, the medical and other reasons are adequate for an unsophisticated individual to make an informed decision to accept or dispute.
34I find on a balance of probabilities that the respondent’s denial letter dated October 30, 2023, is in accordance with s.38(8). The letter states that “We have received a Treatment Plan (OCF-18) from Physiocare. Paramjeet Kaur has recommended physiotherapy and massage therapy treatments for a total cost of $4285.00. Aviva has determined the treatment submitted is not reasonable or necessary for the following reasons: The insurers examination reports dated August 31, 2020, and the addendum report dated March 25, 2022, both note that the treatment noted is not reasonable and necessary. There was no finding of impairment, no compelling documents. No new medical records have been provided to support the need for this treatment If you disagree with our assessment of your file and wish to dispute it, file an application with the License Appeal Tribunal. Please review the remainder of this letter for more details.”
35I find that including the entire examination report , and a reference on the denial letter that the IE assessor did not find any impairments of the applicant is more than sufficient medical reasons for the denial in accordance with s.38(8) of the Schedule because the denial contains sufficient medical and other reasons, informed the applicant of its denial based on previous s.44 examinations which the applicant attended and for which it relied upon and provided to the applicant. In addition, the respondent has not received any new medical information from the applicant therefore relying on previous IE’s is appropriate. The denial further advises the applicant of the two-year limitation timeline to dispute its denial and provides s.38 information.
36I find on a balance of probabilities that the treatment plan for physiotherapy services is not reasonable or necessary and that the respondent’s denial letter is in accordance with s.38.(8) of the Schedule.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.
Award
38The 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.
39The applicant submits that given the respondent’s general disregard on how the claim was adjudicated it is her position that the respondent acted in a manner that makes it liable under s.10.
40As no benefits are owing, I find the respondent acted appropriately in its denials of the disputed plans, therefore an award is not appropriate or warranted.
ORDER
41It is ordered that:
i. The applicant is barred from proceeding to a hearing on issues i. and ii.
ii. The applicant is not entitled to $4,285.00 for physiotherapy services because it is not reasonable or necessary and because the respondent’s denial letter is in accordance with s.38.(8)
iii. As no benefits are owing, interest is not owing.
iv. The applicant is not entitled to an award.
v. The application is dismissed
Released: December 19, 2025
John Mazzilli
Adjudicator