Licence Appeal Tribunal File Number: 24-003235/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:
R.C.
(a minor by their parent F.S.)
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Mobina Khan, Counsel
For the Respondent:
Antonella Santi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1R.C., (a minor by their parent, F.S., the applicant) was involved in an automobile accident on April 12, 2020, 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, TD 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:
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 limit?
Is the applicant entitled to a non-earner benefit of $185.00 per week from May 12, 2021 to April 21, 2023?
Is the applicant entitled to $1,096.00 for chiropractic services proposed by Oxford Spine Center, in a treatment plan/OCF-18 (“plan”) dated March 29, 2023?
Is the applicant entitled to $3,860.00 for chiropractic services, proposed by Oxford Spine Center in a plan dated August 22, 2023?
Is the applicant entitled to $2,183.00 for chiropractic services, proposed by Oxford Spine Center in a plan dated May 11, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
The applicant remains subject to the MIG and its $3,500.00 funding limit.
The applicant is not entitled to an NEB
As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
The treatment plans are not payable.
As no payments are owing, no interest is due.
The applicant is not entitled to an award.
The application is dismissed.
ANALYSIS
Applicability of the MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
5An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
6The applicant submits that he should be removed from the MIG because his accident-related injuries are complex, include post-concussion symptoms and required ongoing physical therapy. The applicant relies on the OCF-3 of Dr. Jamal Alaloul, chiropractor, dated April 16, 2021 and the clinical notes and records (CNRs) of the London Health Sciences Centre emergency department, dated April 12, 2021.
7The respondent submits that the applicant has not met his onus to prove that his accident-related injuries warrant his removal from the MIG. The respondent relies on the May 9. 2024 s.44 insurer examination (“IE”) report of Dr. Yuri Marchuk, physiatrist, in which Dr. Marchuk diagnosed the applicant with soft tissue injuries and opined that the injuries fell within the MIG.
8I find that the evidence does not establish that the applicant sustained physical injuries that warrant his removal from the MIG. The CNRs of [a hospital] reveal that the applicant visited [a hospital] with his father after he had been hit by a car while riding his bicycle. As noted by the applicant, he was diagnosed with soft tissue injuries, and a neurological exam was normal. He underwent x-ray imaging of his wrist and elbow, which returned a normal study. The applicant was discharged, and was not prescribed with any medication.
9I assign little weight to the OCF-3’s identification of post-concussion syndrome as an injury, because it is not corroborated by contemporaneous medical evidence. There is no medical evidence that the applicant complained of post-concussion symptoms to his family doctor, or any referrals for investigation. I place more weight on Dr. Marchuk’s IE report, because Dr. Marchuk conducted a thorough physical examination and interview and diagnosed the applicant with soft tissue injuries to the spine, wrist, arm, leg and ankle, and opined that the applicant’s accident-related injuries fall within the MIG.
10As the applicant has not directed me to any corroborating medical evidence that the applicant’s physical injuries fall outside of the MIG, I find that the applicant has not met his onus to prove on a balance of probabilities that his accident-related injuries warrant his removal from the MIG.
11Accordingly, the applicant remains within the MIG.
Is the applicant entitled to an NEB?
12I find that the applicant has not established on a balance of probabilities that he is entitled to an NEB,
13Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
14The applicant submits that he is entitled to an NEB because he is unable to perform his activities of daily living due to his accident-related injuries.
15The respondent argues that the applicant has not met his onus to prove that he is entitled to and NEB, and that Dr. Marchuk, Dr. Jay McGrory, psychologist, and Danny Horban, occupational therapist, all opined that the applicant does not suffer a complete inability to carry on a normal life in their respective physiatry, psychology, and occupational therapy IE reports dated March 9, 2024.
16The applicant submits that he has a wide range of impairments including: “no range of motion in his left shoulder and leg,” an inability to participate in activities of daily living, anxiety and depression, and cognitive issues. However, the applicant has not directed me to any evidence in support of these claims.
17Further, the applicant has not directed me to evidence of his pre-accident function, or activities he values but cannot perform due to his accident-related injuries.
18For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from a complete inability to carry on a normal life as a result of his accident-related injuries.
19Accordingly, the applicant is not entitled to an NEB.
20As I have found that the applicant remains subject to the MIG and its $3,500.00 funding limit, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
21The applicant submits that none of the denials for the treatment plans in dispute comply with s. 38(8), therefore, I will consider the applicant’s submissions under s. 38.
Section 38
22Sections 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.
23If 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:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
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).
Was $2,183.00 for chiropractic services, in a treatment plan dated May 11, 2022, properly denied?
24I find that the treatment plan for chiropractic services in the amount of $2,183.00 dated May 11, 2022, is not payable under s. 38(11).
25The applicant submits that the May 31, 2022 denial letter is not compliant with s. 38(8) because it does not provide sufficient medical reasons. However, the denial letter informs the applicant that the respondent will pay for the services within the $3,500 MIG limit, and requests that the applicant submit an OCF-23. It further acknowledges that the denial letter is late and that the insurer will cover any treatment incurred between May 26 and June 7, 2022.
26Section 38(5) which provides that an insurer may deny a treatment plan during a period when the applicant is entitled to treatment under the MIG. Section 38(6) provides that an insurer’s refusal to accept a treatment plan under s. 38(5) is not reviewable. As I find that the treatment plan was denied during a period that the applicant was eligible for treatment under the MIG, I find that the respondent’s decision is final and not reviewable by the Tribunal.
27Even if I am wrong, and I were to accept that the denial letter was not compliant with s. 38(8), I find that the treatment plan is not payable under s. 38(11) because the respondent issued a valid letter denying the treatment plan on May 22, 2024. The denial letter informed the applicant that the insurer had determined that the treatment plan was not reasonable and necessary based on the IE report of Dr. Marchuk. I find that the May 22, 2024 denial letter is compliant with s.38(8) because it is a clear and unequivocal denial. It identifies the applicant’s injuries, and provides a quote from the attached IE report of Dr. Marchuk. It also provides information with respect to the applicant’s right to dispute the decision, and the process by which to do so.
28Because the applicant has not directed to any evidence that any costs of the plan were incurred prior to the applicant’s receipt of the May 22, 2024 denial letter, I find that the May 11, 2022 treatment plan is not payable under s.38(11).
Was $1,096.00 for chiropractic services in a treatment plan dated March 29, 2023 properly denied?
29I find that the treatment plan in the amount of $1,096 for chiropractic services dated March 29, 2023 is not payable under s. 38(11).
30The applicant submits that the respondent’s denial letter dated April 11, 2023 does not contain sufficient medical reasons to comply with s.38(8). The respondent makes no submissions with respect to s.38.
31I agree with the applicant. The denial letter, which also contains a notice of examination (NOE), informs the applicant that the respondent will not pay for the goods and services in the treatment plan because it has not received “objective compelling evidence that would warrant consideration outside of the Minor Injury Guideline.” It does not define minor injury or the MIG, nor does it identify the applicant’s injuries, or the information that the respondent does not have, but requires. As such I find that the notice is not sufficiently clear and detailed for an unsophisticated person to make an informed decision whether to dispute the denial. Accordingly, s. 38(11) is engaged.
32The respondent sent a subsequent letter on May 22, 2024, denying the March 29, 2023 treatment plan. I found above that the May 22, 2024 denial letter complies with s.38 (8). I find the denial letter is compliant with respect to the March, 29, 2023 treatment plan for the same reasons.
33As the applicant has not directed me to any evidence that any costs were incurred related to the treatment plan during the period of non-compliance, I find that the March 29, 2023 treatment plan is not payable under s.38(11).
Was $3,860.00 for chiropractic services in a plan dated August 22, 2023 properly denied?
34I find that the treatment plan in the amount of $3,860.00 for chiropractic services, dated August 22, 2023 is not payable under s. 38(11).
35The respondent denied the treatment plan in a letter dated October 18, 2023. While the denial letter does not provide a medical reason for the denial, it does provide the applicant’s non-attendance at scheduled s. 44 assessments as the reason for the denial, and provides information on the applicant’s right to dispute the denial and the process to do so. As such, I find the October 18, 2023 letter to be a clear an unequivocal denial and sufficiently understandable for an unsophisticated person to make a decision whether or not to dispute the denial.
36The October 18, 2023 denial letter acknowledges that the letter is late, and that the respondent will pay for treatment incurred between September 6, 2023 and October 18, 2023.
37As the applicant has not directed me to any evidence that any costs were incurred related to the treatment plan during the period of non-compliance, I find that the August 22, 2023 treatment plan is not payable under s.38(11).
Interest
38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due
Award
39The 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.
40The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
41As the applicant has not led any evidence that the respondent’s behaviour has risen to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate, the applicant is not entitled to an award.
ORDER
42I find that:
The applicant remains subject to the MIG and its $3,500.00 funding limit.
The applicant is not entitled to an NEB
As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
The treatment plans are not payable.
As no payments are owing, no interest is due.
The applicant is not entitled to an award.
The application is dismissed.
Released: December 19, 2025
Kathleen Wells
Adjudicator