Licence Appeal Tribunal File Number: 23-010822/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:
Donnell Mccreath
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Shahzad Ayub, Counsel
For the Respondent:
Mark Vella, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Donnell Mccreath, the applicant, was involved in an automobile accident on January 30, 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 the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
- Is the applicant entitled to the assessments proposed by Imperial Medical Assessments Inc., as follows:
i. $2,319.04 ($4,651.77 less $2,332.73 approved) for psychological treatment, in a treatment plan dated July 19, 2023;
ii. $2,045.74 for an attendant care assessment, in a treatment plan dated July 19, 2023;
iii. $2,486.00 for a chronic pain assessment, in a treatment plan dated July 20, 2023; and
iv. $2,486.00 for a hyperbaric oxygen therapy assessment, in a treatment plan dated July 20, 2023?
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 has not met his onus to demonstrate entitlement to the treatment plans in dispute.
The applicant is not entitled to an award.
As no payments are owing, no interest is due.
The application is dismissed.
ANALYSIS
4The applicant argues that he is entitled to the treatment plans because the respondent failed to comply with the mandatory notice requirements in accordance with s. 38(8) and 38(11) of the Schedule. The applicant submits that he is not seeking a determination of whether the treatment plans are reasonable and necessary under s.15 and 16 of the Schedule.
5Sections 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.
6If 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).
7The applicant submitted a chart which listed the denial letters and notices of examination that the applicant received, and the applicant’s “analysis and the basis for his position that Respondent failed to meet the requirements of the Schedule in respect thereof.” I note that while the chart lists multiple notices received by the applicant, the applicant has only included submissions with respect to three notices. Therefore, I have only considered the notices for which the applicant has provided the applicant’s position in the final column of the chart.
8Additionally, the applicant’s submissions in the chart include arguments relating to the content of the applicant’s medical records, and whether the treatment plans were reasonable and necessary. However, in his submissions and reply submissions, the applicant expressly denied seeking a consideration of whether the treatment plans were reasonable and necessary.
9Because s. 38(8) does not require the respondent to be correct in its denial, and because the applicant has clearly stated that they are seeking a consideration of s.38(8) and s.38(11) only, I have not considered his submissions as to whether the treatment plans are reasonable and necessary.
Case law
10The applicant relies on Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) to argue that the treatment plans are payable. Taksali is a Tribunal decision and is not binding upon me. I find that Taskali is not helpful to my analysis in the present case, as in Taksali, the Tribunal found that the Notice of Examination (NOE) was not compliant with s.44(5), while in the present case, the applicant did not make submissions with respect to the sufficiency of a Notice of Examination, nor did the applicant explain how Taksali applies.
Is the applicant entitled to $2,319.04 ($4,651.77 less $2,332.73 approved) for psychological treatment, in a treatment plan dated July 19, 2023?
11I find, on a balance of probabilities, that the applicant is not entitled to the treatment plan in dispute.
12The applicant received a denial letter from the respondent dated January 30, 2024, informing the applicant that the treatment plan was partially approved. The applicant submits that the letter does not comply with s, 38(8) because it does not contain adequate medical reasons. The respondent argues that the letter is compliant with s.38(8).
13I agree with the respondent. I find the letter provided sufficient medical reasons, because the respondent stated that it was relying on the IE report of Dr. McCutcheon and included a detailed excerpt of Dr. McCutcheon’s attached IE. The excerpt of Dr. McCutcheon’s report included line-by-line recommendations with respect to the items requested in the treatment plan.
14The applicant relies on Zafar v Intact Insurance Company, 2024 CanLII 125 (ON LAT) to argue that the medical reasons were insufficient. Zafar is a Tribunal decision, and I am not bound by it. I also find that Zafar is distinguishable from the present case because, in Zafar, the Tribunal held that the respondent cited a need for further information to support the denied portions of the treatment plan, without specifying the information required. In the present case, the respondent issued a clear and unequivocal partial denial. Further, in Zafar, the respondent based its denial on an IE which predated the submission of the treatment plan in dispute, and therefore the IE did not address the specific elements of the treatment plan. In the present case, Dr. McCutcheon’s IE provided a line-by-line analysis of the treatment plan in dispute and made recommendations as to each line item and was quoted in the denial letter. As such, I find Zafar is not helpful to me in my analysis.
15Therefore, I find the January 30, 2024 notice contains the specificity required of a proper denial under s. 38(8) of the Schedule.
16The applicant further submits that the treatment plan should be payable as the January 30, 2024 denial letter incorrectly noted that the five-year eligibility period had expired in explaining that it would fund part of the treatment plan. I disagree. The denial letter clearly articulates that the respondent based its denial of parts of the treatment plan on Dr. McCutcheon’s IE. The respondent referred to the eligibility period in explaining that the respondent would fund part of the treatment plan, not as a reason for its denial. Further, as noted above, s.38 does not require the respondent’s reasons to be correct.
17For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that the outstanding balance of the treatment plan is payable pursuant to s. 38(11).
Is the applicant entitled to $2,045.74 for a attendant care assessment, in a treatment plan dated July 19, 2023?
18I find, on a balance of probabilities, that the applicant is not entitled to the treatment plan dated July 19, 2023.
19The applicant received a denial letter on October 16, 2023, which the applicant submits does not comply with s. 38(8) because it is vaguely worded. I disagree. I find that the letter provides sufficient medical reasons in compliance with s. 38(8), because the denial is clear and unequivocal and relies on the IE report of Alexandra Birioukova, occupational therapist. The denial letter includes an excerpt of the attached report in which Ms. Birioukova explains that the treatment plan calls for an attendant care assessment to determine the applicant’s capability to complete his personal care tasks, and that the applicant had reported that he was currently independent with his personal care.
20Therefore, I find that the respondent’s October 16, 2023 denial letter provided sufficient reasons for the denial and is compliant with s. 38(8). As such, I find that the applicant has not met his onus to demonstrate that the treatment plan is payable pursuant to s. 38(11) of the Schedule.
Is the applicant entitled to $2,486.00 for a chronic pain assessment, in a treatment plan dated July 20, 2023 and $2,486.00 for a hyperbaric oxygen therapy assessment, in a treatment plan dated July 20, 2023?
21I find, on a balance of probabilities, that the applicant has not established his entitlement to the treatment plan for a chronic pain assessment or the treatment plan for a hyperbaric oxygen therapy assessment.
22The treatment plans are both dated July 20, 2023, and were denied in a letter from the respondent on March 22, 2024. The applicant submits that the denial letter is not complaint with s. 38(8), because it is vaguely worded. The respondent contends that the denial letter is compliant and provides sufficient medical reasons.
23I agree with the respondent. I find that the letter, which addresses denial of both treatment plans, provides sufficient medical reasons in compliance with s. 38(8), because the denial is clear and unequivocal and relies on the IE report of Dr. Pankaj Bansal, physician. The denial letter includes an excerpt of the attached report in which Dr. Bansal opines that the treatment plans are not reasonable and necessary and directly addresses the applicant’s medical condition and injuries. The excerpt of the report includes the following:
I find no indication for a chronic pain assessment or hyperbaric oxygen treatment in relation to the MVA from the perspective of musculoskeletal injury. There are no valid indicators of an ongoing musculoskeletal injury or of injuries sustained in the subject MVA more extensive than those of uncomplicated self-resolving soft tissue type. Furthermore, the claimant reported that he is not consuming any prescription medication, reported that he returned to his pre-MVA employment 2 weeks after the subject accident, and reported that he is functionally independent.
24Therefore, I find that the respondent’s March 22, 2024 denial letter is compliant with s.38(8). As such, I find that the applicant has not met his onus to demonstrate that either of the treatment plans are payable pursuant to s. 38(11).
Interest
25Interest 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
26The 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. As no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
27I find that:
The applicant has not met his onus to demonstrate entitlement to the treatment plans in dispute.
The applicant is not entitled to an award.
As no payments are owing, no interest is due.
The application is dismissed.
Released: August 18, 2025
__________________________
Kathleen Wells
Adjudicator