Licence Appeal Tribunal File Number: 23-011880/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:
Antonie Holman
Applicant
and
Western Assurance Company
Respondent
DECISION
ADJUDICATOR:
Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant:
Julia Logoutova, Paralegal
For the Respondent:
Robbie Brar, Counsel
HEARD:
In Writing
OVERVIEW
1Antonie Holman, the applicant, was involved in an automobile accident on January 5, 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, Western Assurance Company, and applied to the Licence Appeal Tribunal (the Tribunal) for resolution of the dispute.
2The matter proceeded to this written hearing.
ISSUES
3The issues to be decided in the hearing are:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit? Note: The parties agree the MIG limit has been exhausted.
ii. Is the applicant entitled to chiropractic services proposed by Aqua Wellness Centre Ltd. as follows:
(a) $3,205.90 ($3,795.50 less $589.60 approved) proposed in a treatment plan/OCF-18 (plan) dated August 10, 2020;
(b) $2,691.00 in a plan dated October 2, 2020;
(c) $2,291.00 in a plan dated January 5, 2021; and
(d) $2,091.00 in a plan dated October 8, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
BACKGROUND
4On January 5, 2020, the applicant was involved in a t-bone type motor vehicle collision when he was struck on the passenger side by a third-party driver who proceeded through the intersection on a yellow light. Police and emergency medical personnel attended the scene. The applicant did not attend the hospital.
5The applicant argues that the treatment plans in dispute should be payable because the respondent did not provide valid denials compliant with section 38 of the Schedule, and because the respondent’s Notices of Assessment (section 44) were also deficient.
RESULT
6The applicant has not established on a balance of probabilities that his impairments arising from the accident fall outside of the MIG.
7As the applicant is in the MIG, and the MIG limit has been exhausted, the applicant is not entitled to payment for the treatment plans.
8The treatment plans are not payable pursuant to section 38 or section 44 of the Schedule.
9The applicant is not entitled to interest.
ANALYSIS
Do the applicant’s impairments arising from the accident fall outside of the MIG?
10I find the applicant has not demonstrated that he should be removed from the MIG.
11Section 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.”
12An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under section 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.
13The applicant submits that he began attending treatment at the Aqua Wellness Centre Ltd. in early March 2020 and continued to do so until the end of January 2022. The applicant submitted clinical notes and records (CNRs) of Aqua Wellness Centre Ltd. as well as CNRs of One Stop Medical Centre. However, the applicant did not provide submissions specific to how his injuries fall outside of the MIG. In fact, when listing the issues in dispute, the applicant did not include issue [3]i above. The applicant does not make submissions that a pre-existing injury or condition precludes his recovery if confined to the MIG and does not argue chronic pain or a psychological condition with functional impairment that warrants his removal from the MIG. Although the applicant appears to be arguing that he continues to experience pain, he does not submit that the pain is chronic and does not point me to any evidence to support that he might have chronic pain.
14As a result, I find the applicant has not satisfied his burden of proving on a balance of probabilities that his accident-related impairments require removal from and treatment beyond the MIG limit.
15As the applicant is in the MIG and the MIG limit is exhausted, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
Did the respondent fail to comply with section 38 of the Schedule?
16I find that the denials are compliant with section 38 of the Schedule.
17Sections 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.
18If an insurer fails to comply with its obligations under section 38(8), the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and shall pay for all goods, services, assessments and examinations described in the OCF-18 that relate to the period staring on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice in compliance with subsection (8).
19It is well-settled that the respondent’s “medical and any other reasons” should include specific details about the applicant’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. According to Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”), the refusal to pay the benefit must contain straightforward and clear language directed towards an unsophisticated person and must provide valid or other reason for the denial. Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what the reasons mean when read by an unsophisticated person.
20The applicant argues that the respondent’s denial letters following the submission of the treatment plans in dispute do not meet the requirements of section 38(8) of the Schedule and therefore, are insufficient. On that basis, the applicant submits that the treatment plans in dispute are reasonable and necessary, and payment should be ordered.
21There are four treatment plans in dispute. The applicant submits that the denial letters of all four do not conform to the requirements of section 38(8). Although individually referenced, specific submissions for each were not made. The applicant makes an overarching argument that the notices fail to identify the services that the respondent agreed to pay for, those it did not agree to pay for, and it did not indicate the medical reasons for its denial.
22The applicant did not indicate whether any of the treatment plans were incurred.
23The respondent disputes the applicant’s entitlement to the benefits claimed and submits that the applicant’s injuries are confined to the MIG. The respondent maintains that the applicant is not entitled to the treatment plans in dispute on the basis that they are not reasonable and necessary. No submissions were made regarding the alleged deficiencies of the notices.
24For the reasons that follow, I find that the denial letters provided by the respondent to the applicant for all four treatment plans were compliant with section 38 of the Schedule and are not payable.
(a) Treatment plan dated August 10, 2020, in the amount of $3,795.50 for chiropractic services proposed by Aqua Wellness Centre
25In an Explanation of Benefits (EOB) dated August 21, 2020, the respondent partially denies this plan. The EOB references the OCF-18 in the amount of $3,795.50 from Aqua Wellness Centre, as well as “insufficient compelling evidence of a documented pre-existing injury or condition and insufficient medical documentation to persuade us that your accident-related injuries fall outside the [MIG]”. It goes on to confirm that the total funding available under the MIG is $3,500.00, and that, for this reason, it partially approves the plan up to the MIG limit, in the amount of $589.60.
26The EOB invites the applicant to provide additional documentation (including clinical notes and records and/or hospital records) that confirms any pre-existing condition or diagnosis that would substantiate that his injuries would remove him from the MIG.
27I find that the respondent’s denial letter meets all of the requirements outlined by Smith: the notice is timely and clear, the benefit is identified, and the medical reason is valid. The dispute forms are also attached.
(b) Treatment plan dated October 2, 2020, in the amount of $2,691.00 for chiropractic services proposed by Aqua Wellness Centre
28The EOB dated October 16, 2020, references the treatment plan as well as a second treatment plan submitted October 7, 2020, by Aqua Wellness Centre in the amount of $2,200.00 not currently in dispute. The notice concludes that “there is insufficient compelling evidence of a documented pre-existing injury or condition and insufficient compelling documentation to persuade us that your accident-related injuries fall outside the [MIG].” It provides the definition of minor injury and explains that the requests exceed the MIG limit coverage. Both treatment plans submitted are denied in full and the applicant is invited to provide additional documentation if he believes his injuries remove him from the MIG.
29The correspondence also notes that a section 44 insurer’s examination would be scheduled for an independent medical opinion to determine if the applicant’s accident-related injuries remain within the definition of MIG.
30I find that the respondent’s denial letter meets all of the requirements outlined by Smith: the notice is timely and clear, the benefit is identified, and the medical reason is valid. The dispute forms are also attached.
(c) Treatment plan dated January 5, 2021, in the amount of $2,291.00 for chiropractic services proposed by Aqua Wellness Centre
31The EOB dated January 19, 2021, identifies the treatment plan in question and notes: “[i]t appears your injuries fall within the [MIG] and you were a “no show” for the recent section 44 insurer’s examination of January 05, 2021.” It confirms the total denial of the treatment plan ($2,291.00) and advises the applicant that he must undergo the section 44 examination.
32I find that the respondent’s denial letter meets all of the requirements outlined by Smith: the notice is timely and clear, the benefit is identified, and the medical reason is valid. The dispute forms are also attached.
(d) Treatment plan dated October 8, 2021, in the amount of $2,091.00 for chiropractic services proposed by Aqua Wellness Centre
33The EOB provided on October 20, 2021, notes that the OCF-18 proposes treatment beyond the MIG limit of $3,500.00 and that the total amount of the plan is denied. It states that the injuries sustained in the accident fall within the minor injury definition and invites the applicant to provide additional compelling documentation if he believes his injuries should be treated outside of the MIG.
34The letter also notes that the two previous section 44 insurer’s examinations were scheduled (on January 5, 2021, and January 23, 2021) which the applicant failed to attend. The respondent notes it has been in contact with the applicant’s legal representative who advised that they would communicate whether the assessments should be rescheduled. It states: “[u]ntil such time you attend the assessments or provide us with compelling medical information your injuries are not treatable within the MIG, we are unable to consider further treatment.”
35I find that the respondent’s denial letter meets all of the requirements outlined by Smith: the notice is timely and clear, the benefit is identified, and the medical reason is valid. The dispute forms are also attached.
Summary
36I find that each of the denial letters properly reference the individual treatment plans and were provided within the 10-business day timeframe stipulated by the Schedule. All denials explain that the applicant’s injuries fall within the definition of the MIG and that the MIG limit, being $3,500.00, was now exhausted. Aside from the first treatment plan that was partially approved up to the total MIG limit, all other denials are clear that the full amount of the plans are denied.
37I find that the respondent’s determination and explanation that the applicant’s injuries are confined to the MIG constitutes a medical reason in compliance with section 38 as it indicates that the applicant’s injuries are minor, a medical term defined within the Schedule. The EOBs also invite the applicant to provide additional information that could confirm a pre-existing injury or condition that would remove the applicant from the MIG.
38For these reasons, I find that the notices are compliant with section 38(8). They provide sufficient details that form the basis for the insurer’s decision and identify potential information about the applicant’s condition that the insurer does not have but would require, being additional documentation that would indicate the applicant should be removed from the MIG.
39Having found that the denial letters are compliant, the treatment plans are not payable.
Section 44 Notices of Examination
40In his submissions, the applicant also raised an allegation of section 44 non-compliance with two insurer’s examination notices. As I understand his submissions, he argues that the Notices of Examination dated October 19, 2021, and January 19, 2023, were deficient because they did not reference the insurer’s examination report of Dr. Ahmad Belton, dated April 17, 2023, which concluded that the applicant’s injuries were within the definition of the MIG.
41Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is, or continues to be, entitled to a benefit for which an application is made, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation. Section 44(5) sets out the requirements an insurer should meet and the information it must provide in its notice, being:
(a) the medical and any other reasons for the examination;
(b) whether the attendance of the insured person is required at the examination;
(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in the professions; and
(d) if the attendance of the insured is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
42If the respondent does not comply with the notice requirements, it cannot rely on section 55(1)2 of the Schedule which provides it with a remedy that restricts an applicant from applying to the Tribunal based on the non-attendance at an examination. To engage section 55(1)2, the insurer must demonstrate that a proper notice was sent; that it meets the requirements of section 44(5).
43Although I agree with the applicant that the fact the applicant attended the insurer’s examination does not cure any deficiencies in the notices, non-compliance of a section 44 notice does not trigger the same remedies available through section 38. There is no relationship between sections 44 and 38 in the Schedule as the applicant appears to have submitted.
44I therefore find that the applicant’s reliance on a deficient Notice of Examination by the respondent, if either of them is deficient, does not render the treatment plans in dispute payable.
Is the applicant entitled to interest?
45Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Because the applicant is not entitled to the benefits in dispute, interest is not payable.
ORDER
46For the above reasons, I find:
i. The applicant has not established on a balance of probabilities that his impairments arising from the accident warrant removal from the MIG.
ii. As the applicant is in the MIG, and the MIG limit has been exhausted, the applicant is not entitled to payment for the treatment plans in dispute.
iii. The treatment plans are not payable pursuant to section 38 or section 44 of the Schedule.
iv. Because the applicant is not entitled to the benefits in dispute, interest is not payable.
v. The application is dismissed.
Released: August 13, 2025
Trina Morissette
Vice-Chair