Licence Appeal Tribunal File Number: 23-009534/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:
[L.I.G]
(A minor by their litigation guardian, [N.I.G])
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Stefan Juzkiw, Counsel
For the Respondent: Tebogo Fisher-Phala, Counsel
HEARD: By way of written submissions
OVERVIEW
1The Applicant was involved in an automobile accident on April 9, 2022, 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”). The 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
2The issues to be decided in the hearing are:
i. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for Occupational Therapy Services, proposed by Novo Medical Services in a treatment plan/OCF-18 (“plan”), dated August 3, 2022?
ii. Is the Applicant entitled to a medical benefit in the amount of $2,400.00 for Optometric Services, proposed by Novo Medical Services in a plan dated August 3, 2022?
iii. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
iv. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the Applicant has not met her onus to demonstrate entitlement to the plans in dispute.
4No interest or award is payable.
BACKGROUND
5The Applicant was the front seat passenger of a vehicle which was struck on the side by another vehicle. Information on the immediate aftermath of the accident is not before me, but her family physician’s clinical notes and records (CNRs”) confirm a diagnosis of a concussion as a result of this accident.
6At issue is whether the Applicant is entitled to the plans in dispute, plus interest and an award.
ANALYSIS
7The onus is on the Applicant to demonstrate that the plans in dispute are reasonable and necessary as a result of the accident. To meet her onus the Applicant should identify the goods and services proposed in the plan and demonstrate through her medical evidence that the goods and services proposed are a reasonable and necessary component of her recovery, and that they fees associated with the goods and services are reasonable and necessary.
8For the following reasons, I find that the Applicant has not met her onus to demonstrate entitlement to the plans in dispute.
Occupational therapy plan in the amount of $2,200.00, dated August 3, 2022
9This plan proposes a SPECT brain scan and includes fees for a review of file material, transportation, and the completion of the plan.
10The Applicant submits that the occupational therapist (“OT”) report, dated July 26, 2022 proposed a SPECT scan, though the Applicant never made any pinpoint reference to the report and never submitted the OT report as evidence. The Respondent submits that the Applicant failed to provide contemporaneous and pertinent evidence to support a finding that the plan is reasonable and necessary as a result of the accident.
11The evidence before me does not indicate that the Applicant requires a SPECT scan. The Applicant included CNRs from various sources including her family physician Dr. N. Vale, and the Concussion Management clinic she attends. She also included reports from sleep studies dated March 15, and July 26, 2023. None of these records include a referral or recommendation for a SPECT scan. The contemporaneous records, from Dr. Vale, dated July 19, 2022, show that the Applicant was referred to a concussion management clinic, which led to a recommendation for a psychological assessment – there is no recommendation for a SPECT scan in these records. Additionally, the Applicant had a brain MRI completed in March 2023, which returned normal results. Normal results on a brain MRI further indicates that a SPECT scan is not reasonable and necessary as a result of the accident.
12Accordingly, I find that the Applicant had not demonstrated that a SPECT scan is reasonable and necessary as a result of the accident.
Optometric services plan in the amount of $2,400.00, dated August 3, 2022
13I find that the Applicant has not demonstrated that the plan, dated August 3, 2022 is reasonable and necessary as a result of the accident.
14It is unclear as to what this plan proposes. The Applicant never included this plan in her evidence, but her submissions and the case conference report and order suggest that the plan is for an optometric assessment. However, the Respondent disagrees, and submits that the Applicant’s evidence does not support her position that the plan is for an optometric assessment. It submits a plan, dated August 3, 2022, that seeks funding for a functional assessment by an OT, and notes that the plan makes no mention of optometry, ophthalmology, or eye injuries.
15I agree with the Respondent that there is no plan before me seeking an optometric assessment, and instead find a plan seeking a functional assessment. My decision must be consistent with the evidence before me. Here, the evidence is that the plan seeks funding for a functional assessment, but the Applicant never tendered submissions or evidence to support the need for a functional assessment. The Applicant’s submissions and evidence do not support a finding that a functional assessment is reasonable and necessary as a result of the accident.
The application of section 38(5) and 38(6) of the Schedule
16I would be remiss if I failed to address the Respondent’s submissions regarding the application of section 38(5) and 38(6) of the Schedule. In its submissions, the Respondent states that the above denials were issued pursuant to section 38(5) of the Schedule and are not subject to review, pursuant to section 38(6).
17The Respondent’s interpretation of sections 38(5) and 38(6) of the Schedule is incorrect.
18Section 38(5) of the Schedule provides that an insurer may refuse to accept a treatment and assessment plan if the plan describes goods or service to be received in respect of any period during which the insured person is entitled to review goods or services pursuant to the minor injury guideline (the “MIG”). Section 38(6) provides that the refusal is final and not subject to review.
19Section 38(5) of the Schedule applies at the outset of a claim, when an insured person who sustained predominantly soft-tissue injuries, submits a treatment plan for goods and services that fall outside of the MIG, before engaging in treatment pursuant to the MIG. The public policy implication of this is to reduce disputes at the outset of a claim by forcing insured persons who present with soft-tissue injuries to commence treatment within the MIG before pursuing treatment that falls outside the MIG. Treatment pursuant to the MIG is pre-approved, enabling insured persons to engage in treatment without any delay.
20This is not a case where section 38(5) and 38(6) apply because the Applicant engaged in treatment pursuant to the MIG and was seeking funding for goods and services to be consumed after her treatment within the MIG. Thus, while it has no impact on the Applicant’s entitlement to the benefits, I find that the Respondent’s submissions on the issue to be incorrect and not applicable.
Interest
21Interest 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
22The 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 based on behaviour that is excessive, imprudent, stubborn, unyielding, or immoderate.
23I find that the Applicant is not entitled to an award.
24The Applicant never identified behaviour by the Respondent that could be characterized as excessive, imprudent, stubborn, unyielding, or immoderate. It appears that she claims entitlement to an award based solely on her disagreement with the Respondent’s refusal to fund the plans in dispute. This is insufficient grounds for an award and does not demonstrate unreasonable withholding of benefits or the payment of benefits. Accordingly, I find no award payable.
CONCLUSION AND ORDER
25The Applicant had not met her onus to demonstrate that the plans in dispute are reasonable and necessary as a result of the accident. She is not entitled to the plans, nor interest or an award.
26The application is dismissed.
Released: August 21, 2025
Brian Norris
Adjudicator