Licence Appeal Tribunal File Number: 23-007932/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:
Shana Vinayagamoorthy
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Jono Schneider, Counsel
For the Respondent:
Michael Rattray, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Shana Vinayagamoorthy, the applicant, was involved in an automobile accident on February 17, 2022, 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, Security National 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:
- Is the applicant entitled to the assessments/treatments proposed by GTA Chiropractic, as follows:
(i) $3,834.91 for physiotherapy services, in a treatment plan dated March 23, 2022;
(ii) $1,300.93 for physiotherapy services, in a treatment plan dated July 13, 2022;
(iii) $2,681.88 for physiotherapy services, in a treatment plan dated July 13, 2022;
(iv) $4,722.82 for physiotherapy services, in a treatment plan dated March 23, 2023;
(v) $4,015.89 for physiotherapy services, in a treatment plan dated June 8, 2023; and
(vi) $4,271.05 for physiotherapy services, in a treatment plan dated November 7, 2023?
Is the applicant entitled to $2,486.00 for an occupational therapy assessment, proposed by Complete Balance Health in a treatment plan dated September 28, 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?
3The treatment plan for $1,300.93 for physiotherapy services was listed in the Case Conference Report and Order with an incorrect date of June 13, 2022. The OCF-18 form was dated July 13, 2022. There are multiple references to both dates in the evidence and submissions of both parties, as well as the use of an incorrect amount. For the sake of clarity, I have set out the correct date in the issues above and will note the correct date and amount when quoting directly from the evidence.
RESULT
4I find that:
The applicant is entitled to the treatment plans in dispute.
The applicant is entitled to interest on any outstanding payments in accordance with s. 51 of the Schedule.
The applicant is not entitled to an award.
ANALYSIS
5To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
6Sections 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.
7If 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).
8The applicant submits that none of the respondent’s denial letters for the treatment plans in dispute are compliant with s. 38(8), because they do not contain sufficient medical reasons, and that they are therefore payable under s.38(11). The respondent argues that all of the treatment plans meet the requirements of s. 38, and are therefore not payable. The respondent further submits that the applicant has not established that any of the treatment plans are reasonable and necessary.
Is the applicant entitled to $3,834.91 for physiotherapy services, in a treatment plan dated March 23, 2022?
9I find that the applicant has established his entitlement to the treatment plan, pursuant to s. 38(11).
10The applicant submits that the treatment plan is payable under s.38(11) because the respondent has not provided sufficient medical or other reasons for its denials. The respondent argues that its denials are compliant with s. 38(8).
11The treatment plan, dated March 23, 2022, sought funding for physiotherapy services. The respondent issued a denial letter on May 17, 2022.
12While I agree with the respondent that the absence of medical documentation can be a valid medical reason, the denial letter contains no details about the applicant’s injuries, or the “goods, services, and/or assessments” sought. Nor does it explain what the Minor Injury Guideline (“MIG”) or its limit are, or direct the applicant to a definition of a minor injury in the Schedule, which, in my view, would be the minimum required to allow an unsophisticated individual to make a decision whether or not to dispute the denial.
13For these reasons, I find that the May 17, 2022 denial notice is not compliant with s. 38(8) of the Schedule.
14On February 13, 2024, the respondent issued a notice of examination (NOE) for the March 23, 2022 treatment plan and two other treatment plans, both dated July 13, 2022. The letter indicated that the treatment plans would be subject to a paper review.
15I find that the February 13, 2024 NOE does not cure the May 17, 2022 deficient denial notice for the reasons that follow.
16I find that the second notice is not compliant with s. 38(8) because it does not identify the goods and services set out in the treatment plans, and does not identify the applicant’s injuries, or provide any detail with respect to which medical records had been reviewed. Further, I find the notice is confusing, as it does not explain why the previously denied treatment plan hasnot been reviewed by the respondent, or why the applicant would now be subject to a s.44 paper review for the March 23, 2022 treatment plan. As such I find that the notice does not provide sufficient clarity or information to allow the applicant to decide whether to dispute the notice.
17The third denial letter was dated April 9, 2024, and listed the March 23, 2022 and two July 13, 2023 treatment plans as denied. The respondent relied on the s.44 paper review report of Dr. Maria Nestorenko, physician, as the basis for all three denials.
18I find the denial did not identify the applicant’s injuries, or the goods and services sought in any of the three treatment plans.
19I agree with the applicant that Dr. Nesterenko’s reference to the applicant’s injuries falling within the MIG is confusing, given that the applicant had been informed two months earlier that he had been removed from the MIG. The evidence reveals that the quoted paragraph from the paper review is Dr. Nesterenko’s summary of her earlier s.44 report, and refers to the MIG as well as her medical findings about the applicant’s condition. However, none of the three treatment plans mentioned in the letter was the subject of the previous s.44 report, and the letter does not include a summary of Dr. Nesterenko’s paper review findings.
20Although the paper review report is attached, the letter directs the applicant to review the report with his “treating healthcare provider,” which I find to be a deterrent to the applicant reading the report for himself to find Dr. Nesterenko’s reasons for her findings, and an indication that the information is not sufficiently understandable for the applicant to make a decision whether to dispute the notice.
21For these reasons, I find that the respondent has not issued a denial notice in compliance with s. 38(8). Therefore, in accordance with s. 38(11), the applicant is entitled to the goods and services identified in the March 23, 2022 treatment plan, if incurred.
Is the applicant entitled to $1,300.93 for physiotherapy services, in a treatment plan dated July 13, 2022?
Is the applicant entitled to $2,681.88 for physiotherapy services, in a treatment plan dated July 13, 2022?
22I find that the applicant has established his entitlement to the treatment plans, pursuant to s. 38(11).
23The applicant submits that the treatment plan is payable under s.38(11) because the respondent has not provided sufficient medical or other reasons for its denials. The respondent argues that its denials are compliant with s. 38(8).
24The respondent issued a letter denying the treatment plan for $2,681.88 of physiotherapy services on April 3, 2023, and a nearly identical letter denying the treatment plan for $1,300.93 on April 14, 2023.
25The respondent argues that the denial letter clearly states that the treatment plan was denied because of a lack of compelling medical evidence. I disagree. The respondent denied the claim because the applicant’s injury “has not been deemed outside of the Minor Injury,” but does indicate how that conclusion was reached. The respondent does not identify any medical records reviewed or provide any detail with respect to the applicant’s injuries or identify the goods and services sought in the treatment plan.
26I find that the notice is confusing, because the respondent does not explain what the MIG is, nor does the respondent direct the applicant to a definition of minor injury or the MIG, to allow him to make an informed decision whether to dispute the denial.
27For these reasons, I find that the April 3, 2023 and April 14, 2023 denial letters are not compliant with s. 38(8). I further find that the denial letters were not cured by the subsequent NOE dated February 13, 2024, or the third denial letter issued on April 9, 2024, which I found were not compliant with s.38(8) above.
28Therefore, I find that the applicant has met his onus to prove on a balance of probabilities his entitlement to the treatment plans pursuant to s. 38(11). Accordingly, the applicant is entitled to the goods and services identified in both July 13, 2022 treatment plans, if incurred.
Is the applicant entitled to $4,722.82 for physiotherapy services, in a treatment plan dated March 23, 2023?
29I find that the applicant has established his entitlement to the treatment plan, pursuant to s. 38(11).
30The applicant submits that the treatment plan is payable under s.38(11) because the respondent has not provided sufficient medical or other reasons for its denials. The respondent argues that its denials are compliant with s. 38(8).
31The treatment plan was denied by the respondent in a letter dated June 5, 2023. The reasons for the denial were identical to those in the April 3, 2023 and April 14, 2023 denial letters, which I found were not compliant with s. 38(8).
32As the denial letter does not identify the goods and services requested in the treatment plan, identify the applicant’s injuries, identify the medical records reviewed, or clearly define “minor injury,” or the MIG, or direct the applicant to a definition thereof, I find that the respondent did not provide the applicant with sufficient information to decide whether to dispute the notice.
33For these reasons, I find that the denial is not compliant with s. 38(8), and s.38(11) is engaged. Accordingly, the applicant is entitled to the goods and services identified in the March 23, 2023 treatment plan, if incurred.
Is the applicant entitled to $4,015.89 for physiotherapy services, in a treatment plan dated June 8, 2023?
34I find that the applicant has established his entitlement to the treatment plan, pursuant to s. 38(11).
35The applicant submits that the treatment plan is payable under s.38(11) because the respondent has not provided sufficient medical or other reasons for its denials. The respondent argues that its denials are compliant with s. 38(8).
36The respondent issued a letter to the applicant on August 3, 2023, partially approving the treatment plan and informing the applicant that he would be required to attend a s.44 examination and that a notice would follow.
37I find that the notice is not complaint with s. 38(8) because the notice does not identify the applicant’s injuries, and does not explain why the itemized goods and services were denied. The letter contains identical language in describing the MIG to the April 3, 2023 and April 14, 2023 denial letters for the treatment plans dated July 13, 2022, which I found above do not clearly define “minor injury” or the MIG. I find the language particularly confusing in this instance, because the letter does not identify the total amounts approved ($2,118.35) or denied ($1,897.14) and how these amounts relate to the applicant’s MIG funding.
38For these reasons, I find that the denial letter is not compliant with s. 38(8).
39I find that the NOE issued by the respondent on November 16. 2023 does not cure the deficient notice, because it uses identical language to the denial letter, which I have found above does not comply with s. 38(8). As a result, I find that s. 38(11) is engaged and the applicant is entitled to the goods and services identified in the treatment plan if incurred.
Is the applicant entitled to $4,271.05 for physiotherapy services, in a treatment plan dated November 7, 2023?
40I find that the applicant has established his entitlement to the treatment plan, pursuant to s. 38(11).
41The applicant submits that the treatment plan is payable under s.38(11) because the respondent has not provided sufficient medical or other reasons for its denials. The respondent argues that its denials are compliant with s. 38(8).
42The respondent issued a denial letter on November 29, 2023, which also informed the applicant that a s.44 examination had already been scheduled.
43I find that the denial letter does not provide sufficient, clear information to allow the applicant to make an informed decision whether to dispute the denial, because the denial did not identify the applicant’s injuries or the goods and services set out in the treatment plan, and contains identical language in describing the MIG to the April 3, 2023 and April 14, 2023 denial letters for the treatment plan dated July 13, 2022, which I found above do not clearly define “minor injury” or the MIG.
44For these reasons I find that the denial letter does not comply with s. 38(8), and s. 38(11) is engaged. Accordingly, the applicant is entitled to the goods and services in the treatment plan, if incurred.
Is the applicant entitled to $2,486.00 for an occupational therapy assessment in a treatment plan dated September 28, 2023?
45I find that the applicant has established his entitlement to the treatment plan pursuant to s. 38(11).
46The applicant submits that the treatment plan is payable under s.38(11) because the respondent has not provided sufficient medical or other reasons for its denials. The respondent argues that its denials are compliant with s. 38(8).
47The respondent issued a denial letter on October 12, 2023, which did not identify the applicant’s injuries and contains identical language to the April 3, 2023, and April 14, 2023 denial letters, which I found above do not clearly define “minor injury” or the MIG, and the letter does not provide sufficient information to allow the applicant to decide whether to dispute the denial. As such, I find that the October 12, 2023 denial letter is not compliant with s. 38(8).
48I find that the deficient denial letter was not cured by the Notice of Examination, dated 2023, because the NOE provided identical reasons to the October 12, 2023 denial.
49After the applicant participated in s.44 psychological and physical examinations, the respondent issued a letter informing the applicant that he had been removed from the MIG.
50I agree with the applicant that the April 5, 2024 does not constitute a clear and unequivocal denial of the treatment plan. While it quotes both Dr. Ahmed Syed, psychologist and Dr. Nesterenko as opining that the treatment plan is not reasonable and necessary, it does not clearly articulate that the treatment plan is not approved. I find this confusing, as the letter is clear in setting out that the applicant is removed from the MIG. Further, the letter does not identify the applicant’s injuries or the goods and services set out in the treatment plan. Although the s. 44 reports are attached to the letter, the applicant is encouraged to review the report with his family doctor, which in my view, is not an indication that the report is easily understood such that an unsophisticated individual can make an informed decision whether to dispute the denial.
51For these reasons I find that the April 5, 2024 letter does not cure the deficient October 12, 2023 notice and s. 38(11) is engaged. Accordingly, the applicant is entitled to the goods and services in the treatment plan, if incurred.
Interest
52The applicant is entitled to interest in accordance with s. 51 of the Schedule.
Award
53I find that the applicant has not established that the respondent has unreasonably withheld or delayed the payment of benefits.
54The 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.
55The 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.
56I accept the applicant’s argument that the respondent did not provide timely responses to multiple requests for payment for the production of medical records, and the evidence reveals that the payments for reimbursement were made late, however, the applicant has not explained how the late payment for reimbursement affected any payment for benefits.
57Further, the applicant submits that the respondent has only paid $200.00 of the applicant’s approved benefits, despite the applicant having supplied all of the requested information to the respondent. However, the applicant has not directed me to evidence that the information was provided to the respondent, or that the respondent’s conduct was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
58For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that the respondent’s conduct was unreasonable. Accordingly, the applicant is not entitled to an award.
ORDER
59I find that:
The applicant is entitled to the treatment plans in dispute.
The applicant is entitled to interest on any outstanding payments in accordance with s. 51 of the Schedule.
The applicant is not entitled to an award.
Released: August 25, 2025
Kathleen Wells
Adjudicator