Licence Appeal Tribunal File Number: 24-006721/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:
Marina Mattucci
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Amar Mohammed
APPEARANCES:
For the Applicant: Yalda Aslamzada, Counsel
For the Respondent: Eric Boate, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Marina Mattucci, the applicant, was involved in an automobile accident on September 2, 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, Wawanesa Mutual 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:
i. Is the applicant entitled to $2,096.70 ($4,211.70 less $2,115.00 approved) for chiropractic services, proposed by Natural Touch Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated September 7, 2022?
ii. Is the applicant entitled to $2,180.97 ($3,339.64 less $1,158.67 approved) for physiotherapy services, proposed by Natural Touch Rehabilitation Centre in plan dated January 19, 2023?
iii. Is the applicant entitled to $2,891.12 for physiotherapy services, proposed by Natural Touch Rehabilitation Centre in plan dated June 22, 2023?
iv. Is the applicant entitled to $1,846.13 for occupational therapy services, proposed by Med-Assess in plan dated August 1, 2023?
v. Is the applicant entitled to $4,413.45 ($8,578.07 less $4,164.62 approved) for psychological services, proposed by Med-Assess in plan dated August 29, 2023?
vi. Is the applicant entitled to $2,803.60 for chiropractic services, proposed by Natural Touch Rehabilitation Centre in plan dated September 13, 2023?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to payment of $2,803.60 for chiropractic services pursuant to s. 38(11) of the Schedule, and to interest. The applicant is not entitled to payment of the rest of the disputed plans pursuant to s. 38(11) of the Schedule. The respondent is liable to pay an award of 25%, under s. 10 of Reg. 664, on benefits in the amount of $6,594.42, subject to interest under s. 51 of the Schedule and compound interest.
PROCEDURAL ISSUES
Applicant’s representative
4The applicant is represented by counsel as noted above. The respondent’s materials refer to the applicant’s representative as a paralegal and to a law society number of a paralegal that is not the applicant’s counsel. The application, which initiated this Tribunal proceeding, identified the applicant’s representative as counsel and provided her law society number and the Law Society of Ontario lists her as a lawyer.
Adverse inference
5The respondent brought a motion to add a preliminary issue related to drawing an adverse inference for failure to produce the clinical notes and records of Natural Touch Rehabilitation Centre records in accordance with the Case Conference Report and Order. I decline to add a preliminary issue as this is a question that goes to the weighing of evidence rather than an issue that is dispositive of any of the issues in dispute. In any event, given the applicant is not making any substantive arguments, the question of whether the plans are reasonable and necessary is not before me. Accordingly, I find that the clinical notes and records of Natural Touch Rehabilitation Centre are not relevant, in this particular hearing. Given my findings below, the question is moot.
ANALYSIS
Is the applicant entitled to the plans in dispute?
6The applicant does not argue that the treatment plans in dispute are reasonable and necessary. She submits she is entitled to them on procedural grounds.
7I find that the applicant is entitled to payment of $2,803.60 for chiropractic services, pursuant to s. 38(11). The applicant is not entitled to payment for the rest of the plans because the denials were compliant with s. 38(8).
8Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
9To be compliant with s. 38(8), the respondent’s reasons should engage the specific details about the applicant’s condition forming the basis for the respondent’s decision and be adequate to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial.
10While the applicant also makes arguments based on s. 44(5), I note that the obligations of the respondent regarding a Notice of Examination (“NOE”) are governed by s. 44(5) of the Schedule and there is no shall pay provision found in s. 44 that could apply to the applicant’s position. It is non-compliance with s. 38(8) that triggers the shall pay provision in s. 38(11), which is the exclusive section argued by the applicant to establish the respondent’s liability for the benefits in dispute.
11Further, the applicant connects s. 44(5) to s. 38(8) by arguing that if an insurer examination is improperly compelled, then the report is void ab initio and the respondent is not entitled to rely on it as part of its reasons in a s. 38(8) notice. The applicant has not established this interpretation with any binding authority. I am not persuaded by this interpretation for a number of reasons. Most significantly because even if I was to now find that an insurer examination was improperly compelled some time ago, the respondent’s reliance on an assessor’s opinion in a s. 38(8) notice prior to my finding continues to allow an unsophisticated person to understand the denial and make an informed decision to challenge the respondent’s position on a substantive basis.
The disputed plans and their denial notices
12I find that the denial notices, except for the denial of $2,803.60 for chiropractic services, are compliant with the Schedule because they include the respondent’s reasons, medical and otherwise, as required. Ultimately, I find that the compliant notices allow an unsophisticated person to understand the denials and make an informed decision to challenge the respondent’s position, or not.
$2,096.70 ($4,211.70 less $2,115.00 approved) for chiropractic services
13The plan proposing $2,096.70 ($4,211.70 less $2,115.00 approved) for chiropractic services was submitted to the respondent on September 15, 2022 at 8:24PM. The respondent provided a notice, within 10 business days, dated September 18, 2022 denying the plan because, after review of a report provided by the Natural Touch Rehabilitation Centre and comparing the applicant’s injuries to the definition of a minor injury, it held the opinion that the applicant was subject to the Minor Injury Guideline. The respondent noted it did not have compelling medical evidence outside of the referenced report and that although the applicant has pre-existing mild tricompartmental osteoarthritis, the respondent did not find evidence of radiculopathy and believed that the pre-existing condition was mild so as not to affect the applicant’s recovery. The respondent scheduled a physiatry assessment.
14I find that the respondent’s denial is compliant because the respondent offered a principled rationale based fairly on the applicant’s file to satisfy its obligation under s. 38(8) of the Schedule. The respondent referred to the specific details about the applicant’s condition, the information it reviewed, and the information it did not find in the records that was relevant to the denial. This included referring to the definition of a minor injury, which is a term defined by the Schedule.
$2,180.97 ($3,339.64 less $1,158.67 approved) for physiotherapy services
15The plan proposing $2,180.97 ($3,339.64 less $1,158.67 approved) for physiotherapy services was submitted to the respondent on January 31, 2023. The respondent provided a notice, within 10 business days, dated February 13, 2023, partially approving the proposed plan. The reasons for denying parts of the plan are that after contrasting the information provided by the applicant against the definition of a minor injury, that the applicant continued to be subject to the MIG.
16The respondent argues there is no need to consider this issue because subsequent to the applicant’s removal from the MIG on July 12, 2023, this plan was approved in full and paid with interest. The approval letter is dated June 5, 2025. However, this is the applicant’s application, and the respondent cannot withdraw an issue on behalf of the applicant. The applicant’s reply submissions do not address this point and I must therefore address the issue based on the shall pay argument advanced and maintained by the applicant.
17I find that the respondent offered a principled rationale based fairly on the applicant’s file to satisfy its obligation under s. 38(8) of the Schedule by referring to the specific details about the applicant’s condition, including the application of the definition of a minor injury and the MIG, which are defined by the Schedule. This does not contradict the respondent’s position that it eventually paid the full amount because it found the plan reasonable and necessary because I am not conducting a reasonable and necessary analysis.
$2,891.12 for physiotherapy services
18The plan proposing $2,891.12 for physiotherapy services was submitted on June 28, 2023. The respondent provided a notice, within 10 business days, dated July 10, 2023 denying the proposed services. The reasons for denial include that the applicant is subject to the MIG, that the information and documents provided to date show that the applicant’s injuries meet the definition of a minor injury. Further, that a s. 44 physiatry assessment report dated November 21, 2022 concluded that the applicant’s injuries are within the MIG and there is no compelling medical evidence that the pre-existing condition would prevent maximal recovery within the MIG. Further, the applicant is invited to provide any relevant updated medical records for review.
19I find that the respondent offered a principled rationale based fairly on the applicant’s file because the applicant was subject to the MIG during this period. The respondent satisfied its obligation under s. 38(8) of the Schedule by referring to the specific details about the applicant’s condition being a minor injury, it referred to the information it reviewed and to information it did not find in the records that was relevant to the denial. The respondent also refers to an opinion of an IE assessor relating to application of the MIG.
$1,846.13 for occupational therapy services
20The plan proposing $1,846.13 for occupational therapy services, more particularly, an in-home attendant care assessment, was submitted on August 1, 2023 at 8:13PM. The respondent provided a notice, within 10 business days, dated August 11, 2023 denying the proposed services. The respondent’s reasons to conclude that it is not reasonable and necessary are summarized as follows. While at this stage the respondent acknowledges having removed the applicant from the MIG based on a psychological condition, the respondent notes that the applicant is independent with self-care, management of her housekeeping, and has returned to and continues to work. The respondent also notes there are very limited visits recorded to doctors and that they had not identified any impairment or specific restriction from a physical perspective that would render this assessment reasonable and necessary.
21I find that the respondent offered a principled rationale based fairly on the applicant’s file to satisfy its obligation under s. 38(8) of the Schedule by referring to the specific details about the applicant’s condition, the information it reviewed, and the information it did not find in the records that was relevant to the denial, such as evidence of an impairment or restriction.
$4,413.45 ($8,578.07 less $4,164.62 approved) for psychological services
22The plan proposing $4,413.45 ($8,578.07 less $4,164.62 approved) for psychological services was submitted on August 29, 2023. The respondent provided a notice, within 10 business days, dated September 12, 2023. The respondent’s reasons include that a single plan for 36 sessions over 9 months is not reasonable and necessary without considering progress. The respondent approved 18 sessions, treatment planning, a progress report, and form completion. The respondent did not approve the further 18 sessions and a duplicative progress report. The respondent further denied payment for communication with others and a monitoring session, reasoning that there is a single doctor providing services and if coordination with others is necessary, this fits within the approval for treatment planning. The notice further indicates that the applicant and her healthcare provider may submit additional treatment plans after this one for consideration.
23The respondent argues there is no need to consider this issue because subsequent to the applicant’s removal from the MIG on July 12, 2023, this plan was approved in full and paid with interest. The approval letter is dated June 6, 2025. However, this is the applicant’s application, and the respondent cannot withdraw an issue on behalf of the applicant. Just as with the previous plan subsequently approved by the respondent, the applicant’s reply submissions do not address this point.
24I find that the respondent offered a principled rationale based fairly on the applicant’s file to satisfy its obligation under s. 38(8) of the Schedule by referring to the specific details about the information it reviewed that it opined was not reasonable and necessary. There are sufficient specifics in the notice for the applicant to challenge the respondent on its position relating to the specific portions of the plan that were denied.
$2,803.60 for chiropractic services
25The plan proposing $2,803.60 for chiropractic services was submitted on September 19, 2023. The respondent provided a notice within 10 business days, dated September 29, 2023. The respondent’s reasons for denying the plan include receipt and review of the clinical notes and records of Dr. Jason S. Ali and a OHIP summary. The respondent states that these records do not suggest any physical injuries beyond a minor injury, and very few visits related to physical injuries. Further, that a s.44 physiatry assessment report concluded her physical injuries are predominantly minor and there is no compelling evidence of a barrier to recovery due to pre-existing conditions. In my view, the respondent is applying an incorrect standard to assess whether this plan is reasonable and necessary because it is applying the MIG on a file where the applicant has been removed from the MIG. Once the applicant was removed from the MIG, the respondent should have stopped applying the MIG on the file as a reason for denial.
26The respondent’s application of the MIG is clear because the denial states that the applicant has been removed from the MIG due to a psychological condition rather than physical injuries or impairments. Further, the focus is that the applicant would not be prevented from achieving maximal recovery from a physical perspective within the $3,500.00 MIG limit already exhausted, while she has been removed from the MIG considering her psychological condition prior to the date of this disputed plan. This indicates the respondent was subjecting the applicant to the MIG limit while having removed her from the MIG. The Schedule does not provide for the applicant to be removed from the MIG from one perspective, in this case due to a psychological condition, while continuing to subject her to the MIG from another perspective, in this case from a physical perspective.
27I find that the respondent did not offer a principled rationale based fairly on the applicant’s file to satisfy its obligation under s. 38(8) of the Schedule. The respondent partly provided reasons for its position that the plan was not reasonable and necessary, such as limited records of physical complaints, but the primary reason for denial is application of the MIG when it should not have been applied. I find that the notice does not allow an unsophisticated person to understand the denials and make an informed decision to challenge the respondent’s position. In my view, an unsophisticated person can understand that their health records provided to the respondent have limited visits of physical complaints that may help establish chiropractic services being reasonable and necessary. However, an unsophisticated person would not appreciate that the Schedule does not allow the MIG to both apply and not apply simultaneously in the specific manner the denial notice has applied it.
28I find that, on a balance of probabilities, the applicant is entitled to payment of $2,803.60 for chiropractic services, pursuant to s. 38(11). The applicant is not entitled to payment for the rest of the plans because the denials were compliant with s. 38(8).
Interest
29The applicant is entitled to interest, which applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
30The 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.
31In determining the type of conduct for which an award is appropriate, the adopted standard is set out in the Financial Services Commission of Ontario case: Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 (“Plowright”). According to Plowright, unreasonable conduct can include “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” behaviour. In November 2024, this approach was reviewed by the Divisional Court in McDonald v. Aviva Insurance Company, 2024 ONSC 6030.
32Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198 (“Vivekanantham”), at paras 43-51, recognizes the Court of Appeal’s finding that the Tribunal’s jurisdiction to grant an award is a broad power. The Divisional Court found the Tribunal has jurisdiction to consider an award on benefits that are settled or paid prior to a final determination by the Tribunal. I find that, as to the benefits to which the applicant is not entitled, the respondent is not liable to pay an award. In this context of entitlement, I will review the parties’ arguments regarding the following benefits:
i. $2,803.60 for chiropractic services to which the applicant is entitled as a result of my decision,
ii. $2,180.97 ($3,339.64 less $1,158.67 approved) for physiotherapy services that the applicant is entitled to as of June 5, 2025, and
iii. $4,413.45 ($8,578.07 less $4,164.62 approved) for psychological services that the applicant is entitled to as of June 6, 2025.
33The applicant makes a number of general arguments that can be summarized as follows. That the respondent is liable to pay an award because it improperly denied benefits, did not consider the specific aspects of the proposed benefits, subjected the applicant to inherently intrusive IEs, and relied on the results of the IEs to cure its initial non-compliant denials that it did not provide within 10 days. The applicant did not refer me to any specific instance of any initial denial notice that was not provided within 10 days. Further, the applicant did not address the amount of award it was seeking on this application.
34The respondent argues that an award should only be granted where there is unreasonable behaviour by an insurer in either withholding or delaying payment of benefits. Further, that it should not be held to a standard of perfection but should be held to a standard of reasonableness. The respondent further argues that a Tribunal’s finding which disagrees with the respondent’s position is not sufficient on its own to establish liability for an award.
Delayed or withheld payment of benefits
35I find that the respondent is not liable to pay an award relating to $2,803.60 for chiropractic services to which the applicant is entitled as a result of my decision. I have found that the denial was improper for compartmentalizing the MIG between psychological and physical aspects of the applicant’s condition and applying the MIG while it had removed the applicant from the MIG. However, the secondary reasons in the notice provided by the respondent indicate that it did not have evidence to establish the proposed plan was reasonable and necessary because the applicant’s medical visits showed a lack of physical complaints that would be relevant to chiropractic services. Accordingly, I find that it cannot be said that the respondent unreasonably withheld or delayed the payment of this benefit. I agree with the respondent that an adverse finding regarding entitlement does not automatically subject the respondent to liability for an award.
36I find that the respondent is liable to pay an award relating to $2,180.97 ($3,339.64 less $1,158.67 approved) for physiotherapy services and $4,413.45 ($8,578.07 less $4,164.62 approved) for psychological services. According to the respondent, these disputed benefits were approved as of June 5, 2025 and June 6, 2025 because the sole reason for denial was application of the MIG. However, the applicant was removed from the MIG on or about July 12, 2023.
37Taking into consideration the timeline established by the parties, certainly, from the point when the applicant’s status was updated as no longer being subject to the MIG on July 12, 2023, there was delay in approving the disputed benefits which were not approved until June 2025, almost two years later. I do not have before me any reasons for denial of these plans that the respondent relied upon which would continue to apply after having removed the applicant from the MIG, as admitted by the respondent. Rather, the respondent’s submissions indicate that the MIG was the sole reason for the denial and that is why they were subsequently approved after the applicant was removed from the MIG. This means that the plans were reasonable and necessary since the time they were submitted, except that they were denied because of application of the MIG. Under the circumstances the respondent did not act reasonably, considering the respondent’s duty to adjust the applicant’s file on an ongoing basis. The position of the parties and the length of delay establish that the delay was due to unreasonable conduct as described in Plowright. The respondent’s conduct caused excessive delay of almost two years because it was imprudent in exercising its duty to adjust the file on an ongoing basis. I agree with the respondent that the purpose of an award includes deterrence of insurers taking future similar actions. The respondent did not address the 23-month gap noted above. I find that benefits in the amount of $6,594.42 ($2,180.97 + $4,413.45) were unreasonably withheld or delayed by the respondent.
38In deciding the quantum of the award, I have considered that neither party made submissions specifically addressing the quantum of an award if it was found that the respondent is liable. I have discretion to grant an award of up to 50 per cent. In my view the following factors that the Tribunal has considered in the past should guide an analysis as to quantum:
i. the blameworthiness of the insurer's conduct. I do not have any mitigating factors or a reasonable explanation for the delay. The respondent is blameworthy for removing the applicant from the MIG and waiting almost two years to revisit and approve the disputed benefits.
ii. the vulnerability of the insured person. The subject matter of this Tribunal, comprising statutory accident benefits, inherently involves addressing claims from vulnerable injured parties.
iii. the harm or potential harm directed at the insured person. There is no direct evidence of an intentional decision to delay payment of the disputed benefits. However, the respondent certainly did not satisfy its duty to adjust the file on an ongoing basis. This indifference caused delay in funding treatment that was recommended to the applicant by her medical practitioners and that she was in fact entitled to.
iv. the need for deterrence. The quantum should not be larger than necessary to further the goal of deterrence.
v. the advantage wrongfully gained by the insurer from the misconduct. There is no direct evidence of any meaningful advantage gained in this case by intentionally or unintentionally delaying approval of the disputed benefits. It may have been the case that the if the applicant did not pursue this dispute or further accident benefits in general after removal from the MIG, that the previously denied benefits may not have been re-visited, approved and paid by the respondent. I have not considered this factor in determining quantum due to its speculative nature in the context of the established facts before me.
vi. account for any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct. I am not aware of any such penalties or sanctions.
vii. the overall length of the delay. There is an undisputed obligation to expedite the assessment of claims by the respondent. I have considered that the delay was almost two years and there is no explanation for the delay.
39For these reasons, the respondent is liable to pay an award of 25% as follows, expressed in an equation, the formula is: 25% x (A + B + C). Where “A” is the amount of benefits unreasonably withheld or delayed, “B” is the interest on these benefits pursuant to section 51 of the Schedule, and “C” is the compound interest under s. 10 of Regulation 664.
ORDER
40For the reasons above, I make the following orders:
i. The applicant is entitled to payment of $2,803.60 for chiropractic services pursuant to s. 38(11) of the Schedule, and to interest.
ii. The applicant is not entitled to payment of the rest of the disputed plans pursuant to s. 38(11) of the Schedule.
iii. The respondent is liable to pay an award of 25%, under s. 10 of Reg. 664, on benefits in the amount of $6,594.42, subject to interest under s. 51 of the Schedule and compound interest.
Released: March 3, 2026
__________________________
Amar Mohammed
Adjudicator