Jozef Sunavsky v. TD General Insurance Company, 2025 CanLII 3782

Licence Appeal Tribunal

Citation: Sunavsky v. TD General Insurance Company, 2025 ONLAT 22-010622/AABS Licence Appeal Tribunal File Number: 22-010622/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:

Jozef Sunavsky Applicant

and

TD General Insurance Company Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Kalim Khan, Counsel For the Respondent: Priyanka Monpara, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jozef Sunavsky (“the Applicant”) was involved in an automobile accident on November 21, 2019, and sought benefits from TD General Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to a medical benefit in the amount of $1,668.80 for chiropractic services proposed by Upper James Wellness Clinic Inc. in a treatment plan/OCF-18 (“plan”) dated June 15, 2020?

ii. Is the applicant entitled to medical benefits proposed by Tier 1 Assessments Ltd. as follows: (1) $3,998.63 for psychological treatment plan dated July 28, 2021; (2) $224.42 for psychological treatment plan dated February 9, 2021; (3) $2,516.50 for medical services dated August 18, 2020; and (4) $5,115.49 for medical services dated December 8, 2020; and (5) $2,778.68 for medical services dated December 9, 2020; and (6) $1,182.89 for medical services dated December 9, 2020; and (7) $2,700.40 for other goods and services dated December 8, 2020; and (8) $120.00 ($2,276.80 less $2,156.80 approved) for medical services dated August 28, 2020; and (9) $2,741.80 for medical services dated October 19, 2020; and (10) $2,700.00 for medical services dated October 19, 2020; and (11) $7,036.50 for psychological services dated August 18, 2020?

iii. Is the Applicant entitled to a medical benefit in the amount of $1,502.48 for physiotherapy services proposed by J. Kaur in a plan dated May 8, 2021?

iv. Is the applicant entitled to the medical benefits proposed by Tier 1 Assessments, as follows: (1) $2,460.00 for a chronic pain assessment plan dated December 8, 2020; (2) $2,799.00 for an orthopedic assessment plan dated October 19, 2020; (3) $3,279.25 for a chronic pain assessment plan dated September 3, 2020; and (4) $2,883.75, less $2,460.00 approved by the Respondent, for a neurological assessment plan dated October 19, 2020; and

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4In his initial submissions, the Applicant withdrew his claims for the following medical benefits proposed by Tier 1 Assessments Ltd.:

i. $224.42 related to a psychological treatment plan, dated February 9, 2021; ii. $120.00 related to a treatment plan, dated August 28, 2020; iii. $2,741.80 related to a treatment plan, dated October 19, 2020; iv. $2,700.00 related to a treatment plan, dated October 19, 2020; v. $7,036.50 related to a psychological treatment plan, dated August 18, 2020; vi. $2,460.00 related to a chronic pain assessment plan, dated December 8, 2020; and vii. $423.75 related to a neurological assessment plan, dated October 19, 2020.

5The Applicant also withdrew his claim for a physiotherapy treatment plan in the amount of $1,502.48, dated May 8, 2021.

6The Applicant has not met his onus to demonstrate entitlement to the benefits claimed. He is not entitled to interest or an award.

BACKGROUND

7The Applicant was the driver of a vehicle which was struck from behind by another vehicle while stopped in heavy traffic. No police or ambulance attended at the scene of the accident, but the Applicant reports that he was taken to the hospital by a tow-truck driver, due to headaches, and neck, low back, and right knee pain. He was assessed at the hospital and discharged to his family physician – it was noted in the hospital records that there was no concern for internal bleeding. Shortly after the accident, the Applicant was diagnosed with a concussion as a result of the accident. He also experienced an exacerbation of pre-existing anxiety symptoms.

PRELIMINARY ISSUE

8The Applicant delivered his submissions and evidence late and never sought permission from the Tribunal to file late submissions. In response, the Respondent has sought to dismiss the Applicant’s claims on the basis that he failed to comply with the timeline set out in the Tribunal Order, released August 8, 2023. In reply, the Applicant submits that the Respondent is raising new issues and it would be inappropriate to hear the issues at this hearing. He submits that the relief requested causes undue prejudice to him.

9This hearing in writing was ordered to be heard on April 19, 2024. The Applicant was ordered to exchange and file his written submissions no later than 30 calendar days prior to the hearing, which would be March 20, 2024. However, the Applicant issued and filed submissions on March 27, 2024, a week after his submissions were due.

10In turn, the Respondent filed its submissions on April 8, 2024, four days after the deadline for its submissions.

11The Applicant then issued and filed reply submissions late. His reply submissions were due on April 12, 2024, yet his reply submissions were not issued and filed with the Tribunal until April 30, 2024 – 18 days after the deadline to file reply submissions, and 11 days after the hearing date.

12The Applicant claims entitlement to goods and services based on statutory grounds, primarily on claims that the Respondent was untimely with its responses. Yet, the Applicant himself is untimely with issuing his submissions and evidence – both initial and reply.

13Nevertheless, I have accepted the Parties’ late submissions in this case. However, I note that future hearings may not permit such actions. Best practice provides that parties ought to file a motion with the Tribunal to seek an extension of the deadline to file written submissions.

14Another issue arose, in which the Applicant issued submissions in an appended chart. The Respondent submits that the effect of this practice is that the Applicant has exceeded the 15-page limit for submissions.

15The Applicant does not dispute that he issued submissions in an appended document. He submits that this information be considered by the Tribunal because the Respondent was not prejudiced by it because its submissions were two-pages less than the page limit. He also submits that I have the discretion to permit the submissions and should do so.

16I will not consider the Applicant’s appended submissions. Issuing submissions through appended evidence is contrary to the Tribunal Order and has the affect of extending the page limit for submissions. The Applicant’s submissions must be included within the page limit provided by the Tribunal.

ANALYSIS

17The Applicant’s submissions do not address the merits of his claims. He made no submissions on whether the benefits claimed are reasonable and necessary as a result of the accident. Instead, he claims entitlement on a purely statutory basis. He submits that he is entitled to the benefits claimed because the Respondent has failed to comply with the mandatory notice provisions in section 38(8) of the Schedule/

18The Applicant heavily relies on the Tribunal decision of Taksali v. Aviva Insurance Company, 2024 CanLII 128 (ON LAT) (“Taksali”). Taksali is a parallel tribunal decision and is not binding upon adjudicators at the Tribunal. Moreover, Taksali erroneously concluded that a non-compliant notice of an insurer’s examination (“IE”) caused the resulting IE report to be void ab initio. The conclusion in Taksali failed to consider that the remedy for an insufficient IE notice is that the Applicant is not obligated to attend the examination.

19Here, the Applicant attended and participated in the IEs without any protest. Having attended and participated in the IEs renders the Applicant’s arguments on the admissibility of the IE reports to be moot.

$1,668.80 for a chiropractic treatment plan, dated June 15, 2020

20The Applicant submits that the Respondent failed to reply to this treatment plan within 10 business days, and provided no medical reasons for the denial, as obligated in section 38(8) of the Schedule. The Respondent submits that it replied within the 10-business day limit and provided medical and other reasons for the denial.

21This plan was submitted on June 25, 2020. It seeks funding for a sit/stand desk and ancillary fees. The plan was denied by letter dated July 3, 2020, delivered by mail. Pursuant to section 64(18) of the Schedule, a letter delivered by regular mail is deemed to be received on the fifth business day, unless there is evidence otherwise. Thus, the letter is deemed to be received on July 10, 2020. Upon review of the calendar, with consideration for the July 1st holiday, I conclude that the responding letter denying entitlement to the plan was received on the tenth business day. This is compliant with the timelines outlined in section 38 of the Schedule.

22The July 3, 2020 letter includes sufficient medical reasons, as required by section 38(8) of the Schedule. In the letter, the Respondent stated that the recommended sit/stand desk is not reasonable and necessary because the Applicant’s injuries are not considered permanent and should resolve over time with the treatment the Applicant is currently receiving. It concluded that the sit/stand desk is not essential to the Applicant’s recovery and will not be funded. The Respondent also provided notice that it requires an insurer’s examination to determine if the goods are reasonable and necessary as a result of the accident.

23The Applicant attended the IE and was sent the report by letter dated November 16, 2020. In the letter, the Respondent stated that the Applicant’s injuries are soft tissue injuries including whiplash disorders and left shoulder and lumbar sprains. It noted that the physical examination found no valid indicators to support ongoing accident-related musculoskeletal injury or impairment, and that no injuries or impairments were identified to necessitate assistive devices or chiropractic treatment. The letter also included and referred the Applicant to the November 10, 2020 report of Dr. S-J. Lee, physician, which was the basis for the denial.

24Having concluded that the Respondent complied with its obligations outlined in section 38(8), coupled with the fact that the Applicant made no submissions on whether the plan is reasonable and necessary as a result of the accident, I find that the Applicant has not met his onus to demonstrate entitlement to the plan.

$3,998.63 for a psychological treatment plan, dated July 28, 2021

25This treatment plan was submitted on August 11, 2021. It seeks funding for psychotherapy treatment and ancillary services. The Respondent replied to this plan by letter dated August 19, 2021, deemed to be received August 26, which is the 11th business day.

26The August 19, 2021 letter includes sufficient medical reasons. The denial letter states that the Respondent refuses to pay for any of the goods and services outlined in the plan. It refers to the May 14, 2021 IE and states that it found no valid, objective evidence of an accident related psychological impairment, therefore the plan is not supported and that it will not fund the plan based on this rationale. This is a clear medical reason – that there is no evidence of an accident-related psychological impairment that would warrant treatment.

27Pursuant to section 38(11) of the Schedule, the ramifications for delivering a late response are: 1) the Respondent is unable to rely on the MIG as a means to deny the benefit, and 2) the Applicant is entitled to the goods and services incurred during the period of non-compliance.

28However, the Respondent does not contend that the Applicant is subject to the MIG and has not used it as a means to deny the benefit. Further, the Applicant made no submissions and led no evidence to indicate that he incurred any of the goods and services listed in the plan during the period of non-compliance. Accordingly, I find no entitlement to the benefit on statutory grounds.

29Having concluded that the Respondent complied with its obligations outlined in section 38(8), coupled with the fact that the Applicant made no submissions on whether the plan is reasonable and necessary as a result of the accident, or that they incurred the goods and services during the period of non-compliance, I find that the Applicant has not met his onus to demonstrate entitlement to the plan.

$2,516.50 for a cervical spine MRI proposed in a plan, dated December 8, 2020 and $5,115.49 for a brain SPECT scan plan, dated December 8, 2020

30These plans were both submitted on February 11, 2021. One plan seeks funding for a cervical spine MRI to rule out any structural causes of “his likely left-sided C8 cervical radiculopathy”. The other plan proposes a brain SPECT scan based on the recommendation of Dr. V. Basile, in a neurological assessment report, dated November 19, 2020.

31I find that the denial of this benefit includes sufficient medical reasons. The respondent replied to these plans by letter, dated February 25, 2021, sent via regular mail. In the letter, the Respondent advised that it will not pay for any of the goods or services. The letter states that it is unclear if the proposed assessments are reasonably required in relation to the injuries sustained and it requires an opinion from an independent assessor. The letter also notes that the January 25, 2021 IE by Dr. Lee concluded that the Applicant sustained soft tissue injuries such as whiplash associated disorders, left shoulder sprain/strain, and lumbar myofascial sprain/strain.

32The letter dated February 25, 2021 was sent via regular mail. Thus, it is deemed to be received on March 4, 2021. Indeed, this renders the response to be untimely. However, the Applicant has made no submissions and has not led any evidence indicating that the MRI was incurred during the period of non-compliance spanning February 26 to March 4, 2021.

33Additional to the letter dated February 25, 2021, the Respondent sent a letter dated May 5, 2021, enclosing the subsequent IE report. In the letter, the Respondent repeats that the Applicant is not entitled to the plans, based on the IE report of Dr. N. Yahman, neurologist, dated May 3, 2021. It found no impairment from a neurological perspective as a direct result of the accident that would warrant the investigations.

34Having found that the Respondent provided a clear and unequivocal denial of benefits, with medical reasons, and that the Applicant has not incurred any of the goods or services in dispute, it follows that the Applicant is not entitled to this plan.

$2,778.68 for a physical demands analysis plan, dated October 19, 2020,

$1,182.89 for an ergonomic chair and weights proposed in a plan dated December 9, 2020 and

$2,700.40 for various assistive devices proposed in a plan dated December 8, 2020

35The October 19, 2020 plan was submitted November 4, 2020. It seeks funding for a physical demands analysis, form fees, and transportation for the service provider. The other plans were submitted on December 16, 2020. One of the plans proposes an ergonomic chair and weights, the other proposes various assistive devices such as long-handled cleaning tools and a robotic vacuum.

36The Respondent provided clear and unequivocal denials for these plans, which include medical reasons. The Respondent replied to these plans by letter dated February 5, 2021. In that letter, the Respondent states that it does not agree to pay for the goods and services. It states that a follow up functional abilities evaluation and ADL safety and ergonomic assessment is not warranted for the injuries sustained in the accident, being soft tissue injuries including a WAD I, sprain/strain of the left shoulder, and lumbar myofascial sprain/strain. The letter also notes that during the physical examination, there were no valid indicators to support ongoing accident-related musculoskeletal injury or impairment.

37The Respondent issued a subsequent denial, dated March 25, 2021. The March 23, 2021 IE report by A. Kaul was enclosed with that letter. The letter states that based on the examination, the Applicant is not entitled to the plans dated October 19, 2020 in the amount of $2,741.80, and December 8, 2020, for $2,700.40 and $2,778.68. It states that, from a functional occupational therapy perspective, the Applicant does not require assistive devices to perform his basic self-care duties. He is under the care of his family physician, his psychiatrist, and psychologist to manage his issues at this time.

38The letter dated March 25, 2021 is a clear and unequivocal denial. It refuses to pay for the goods and services. It provides a medical reason for the denial, in that the Applicant does not require the devices to perform his self-care duties and is under the care of specialists to manage his issues.

39Indeed, the denials on these plans were delivered to the Applicant after the 10-business day deadline. As noted, the consequence for the Respondent’s untimeliness is that the Applicant is permitted to incur the goods and service listed in the plans, starting on the 11th business day, and ending on the day in which a clear denial is provided. Here, the Applicant has issued no submissions, and led no evidence, to indicate that any of these goods or services were consumed during the period of non-compliance. Accordingly, the Applicant is not entitled to the plans simply because the Respondent was late in the denial.

40In a similar vein, I acknowledge that the reasons in the March 25, 2021 denial are not strong medical reasons. In fact, it might even be wrong, given that the Schedule does not prohibit persons from seeking treatment, devices, or assessments while under the care of a physician or a medical specialist. However, section 38(8) of the Schedule does not require the medical reasons to be correct. It requires the Respondent to provide the medical and other reasons. It complied by advising that the applicant does not require the devices from an occupational therapy perspective and is under the care of other physicians or specialists.

41Having found that the Respondent provided a clear and unequivocal denial of benefits, with medical reasons, and that the Applicant has not incurred any of the goods or services in dispute during the period of non-compliance, it follows that the Applicant is not entitled to these plans.

$2,799.00 for an orthopaedic assessment plan, dated October 19, 2020

42This plan was submitted on November 9, 2020. It seeks funding for an orthopaedic assessment, travel expenses, and a form fee. The Respondent denied this plan by letter dated November 19, 2020. In the denial letter, the Respondent clearly and unequivocally stated that it does not agree to pay for the goods and services proposed in the plan. It states that an orthopaedic assessment is not warranted for the Applicant’s injuries sustained in the accident. It refers to a recent IE report that concluded he sustained soft tissue injuries such as a WAD I, sprain/strain of the left shoulder and lumbar spine. It also noted that no valid indicators to support ongoing accident-related musculoskeletal injury or impairment.

43The Respondent issued a valid denial of this plan. The November 19, 2020 letter clearly states that it refuses to pay for the plan. The letter gives the medical reasons – that the Applicant sustained soft-tissue injuries and does not require an orthopaedic assessment.

44Like other denials in this hearing, this one was deemed received by the Applicant beyond the 10-business day deadline. However, as noted, the consequence for exceeding the 10-business day limit is that the Applicant is entitled to all the goods and services incurred during the period of non-compliance, up until a valid denial is provided. Here, the Applicant has made no submissions and led no evidence to suggest that the assessment was incurred during the period of non-compliance. Thus, he has not met his onus to demonstrate entitlement to this plan.

$3,279.25 for a chronic pain assessment plan, dated September 3, 2020

45The plan was responded to by letter, dated September 18, 2020. The letter includes a clear and unequivocal denial of the plan. It states that it does not agree to pay for the goods and services in the plan. It advised that there is no compelling evidence on file or in the plan to support the assessment and that treatment was approved and that the Applicant should find improvement in his accident-related impairments with ongoing regular treatment.

46Again, the response to this plan appears to be untimely when factoring in the delivery time for regular mail. However, like the other plans, the Applicant has issued no submissions and led no evidence to suggest that he incurred this plan during the period of non-compliance. Accordingly, I find that the Applicant has not met his onus to demonstrate entitlement to this plan.

Interest

47Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

Award

48The Applicant sought an award under section 10 of Regulation 664. Under section 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.

49The Applicant claims entitlement to an award of 50% of the amounts withheld. He provided no basis for the award, other than redirecting me to his submissions on the limited reasons included in the Respondent’s denials. In response, the Respondent submits that it is not held to a standard of perfection, it considered the medical documentation on file, and highlights that the Applicant has not provided any particulars regarding its conduct that would warrant an award.

50I find no basis for an award. An award is made in an instance where an insurer has unreasonably withheld or delayed the payment of benefits. Other than reiterating his submissions on what were perceived to be insufficient denials, the Applicant has not provided examples of unreasonable withholding or delay for which I could find an award payable. Accordingly, I find no award payable.

CONCLUSION AND ORDER

51The Applicant has not met his onus to demonstrate entitlement to the benefits claimed.

52No interest is payable as no payments went overdue.

53No award is payable as there is no evidence of an unreasonable delay or withholding of benefits.