Licence Appeal Tribunal File Number: 24-009201/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:
Kenroy Wickham
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Justin Mariani, Paralegal
For the Respondent:
Maria Bihnam, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Kenroy Wickham, the applicant, was involved in an automobile accident on June 20, 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, 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:
i. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
3In his submissions, the applicant advises that the plan for chiropractic services dated July 30, 2022 listed as issue 1 in the Case Conference Report and Order dated November 28, 2024, was approved on April 15, 2025. Accordingly, it is no longer in dispute.
RESULT
4The respondent is not liable to pay an award.
5The applicant is not entitled to interest.
ANALYSIS
The respondent is not liable to pay an award
6For the following reasons, I find that the respondent is not liable to pay an award.
7The applicant seeks 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. To attract an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
8The basis for the applicant’s claim for an award is that the respondent significantly delayed approval of a treatment plan by approving it two months before the expiration of the five years coverage, and approaching three years after the initial denial, without any rationale. The applicant seeks the maximum of 50% plus interest.
9The applicant submits that on April 6, 2022, the respondent fully approved an April 2, 2022 OCF-18/treatment plan (“plan”) in the amount of $3,940.14 for fourteen sessions of chiropractic and massage therapy. However, on August 2, 2022, it denied a July 30, 2022 plan in the amount of $3,488.94 for an additional twelve sessions, and scheduled an insurer’s examination (“IE”). I note that the respondent’s August 2, 2022 letter also indicates that it had requested updated clinical notes and records (“CNRs”) from September 2021 to date and had not received any, and that twenty five months had passed since the accident.
10The July 30, 2022 plan was subsequently denied on November 8, 2022, following an IE completed by Dr. Ahmad Belfon, physician.
11The applicant refers to the respondent’s November 8, 2022 denial letter, indicating that the applicant had reached maximum therapeutic benefit from his facility based rehabilitative care. The letter goes on to state:
At approximately two-years and four-months post-accident and in consideration of the formal therapy consumed to date for his uncomplicated soft tissue injuries, it is opined that further supervised physical therapy and/or formal based therapy will likely not result in additional objective and sustainable therapeutic benefits so far removed from the date of loss.
12The applicant refers to CNRs from Altona Medical Centre dated March 22, 2023, indicating that the applicant had right shoulder and lower back pain since the accident in 2020. The notes further indicate that there was poor range of movement in the right shoulder, and “SI Jt: Tender B/L.” He was assessed with musculoskeletal pain.
13The applicant also refers to the respondent’s letter dated February 13, 2025, indicating that an IE was scheduled based on its review of the medical evidence regarding the applicant’s accident-related injuries. Following an IE dated March 21, 2025, completed by Dr. Belfon, in a letter dated March 25, 2025, the plan was denied again.
14The applicant submits that by way of a letter dated April 15, 2025, two months short of the expiration of the five years coverage, and approaching three years after the initial denial, the respondent approved the item in dispute, simply indicating that it was now approved, without providing any rationale.
15The applicant submits that the respondent leveraged its position to frustrate the seeking of further therapy, only to essentially concede that the plan was reasonable and necessary at the last minute, without explanation, which suggests that the respondent’s actions were tactical and strategic rather than principled. The applicant takes the position that the respondent’s “ultimate strategic denial” of further benefits resulted in his being unable to secure therapy as directed by his health care practitioners. The applicant submits that this was “firstly reflected” in the respondent’s incorrect suggestion in a March 2021 letter that the applicant’s injuries were minor, and that he was not entitled to attendant care benefits (“ACBs”). The applicant indicates that this resulted in his being denied any access to ACBs, an assessment, or any resultant care deemed as being required.
16The applicant does not direct me to evidence substantiating that an error in a letter led to his lack of entitlement to ACBs, nor does he explain how an incorrect reference in the respondent’s letter from 2021 is relevant to any “denial strategy” it might have in relation to the treatment plan dated July 30, 2022.
17The applicant further submits that the respondent’s initial post IE denial clearly established that it would not be considering any further suggestions of therapy, and therefore the applicant opted not to pursue any, despite his clear ongoing need for therapy.
18The applicant also argues that the second IE by the same doctor was sought by the respondent, well after the applicant filed this application. He submits this IE was not in accordance with the Schedule, but to buttress the respondent’s denial positioning. For this reason, the applicant submits that he was subject to an unnecessary, intrusive, and unwarranted IE that was not secured in accordance with the Schedule.
19I find that the respondent has an ongoing obligation to adjust the file, which would justify a second IE, well over two years after the first one. Further, the applicant does not direct me to evidence to substantiate his submission that the respondent scheduled a second IE to “buttress” its denial, particularly when it decided to approve the plan less than one month later.
20The applicant further submits that the respondent’s extremely late approval left him next to no time to incur the treatment, given that he would have to be reassessed, nor would there be any opportunity for further therapy after the approval, given that the five-year period would have expired. The plan dated July 30, 2022 was denied on November 8, 2022. The applicant does not address the delay of over one year and eleven months between the denial of the plan on November 8, 2022, and the time he filed his application on July 24, 2024.
21The applicant argues that the respondent’s strategic and tactical handling of the file is imprudent, stubborn, inflexible, and unyielding behaviour that must clearly be deterred. The applicant takes the position that the respondent’s decision to approve the plan despite the opinion of its assessor suggests that it knew the plan was reasonable and necessary and that the applicant would succeed in this claim. The applicant further submits that by approving the plan, the respondent has conceded that it is reasonable and necessary, and therefore it has unreasonably withheld or delayed payment of the benefit.
22The applicant refers to the decision of McDonald v. Aviva Insurance Company, 2024 ONSC 6030 (“McDonald”), where the Divisional Court held that s. 10 of Reg. 664 applies to the situation where an insurer unreasonably withholds or delays payments and then settles on the eve of a hearing.
23I find that, pursuant to McDonald, for an award to be payable in circumstances where an insurer settled on the eve of a hearing, the insurer must first be found to have unreasonably withheld or delayed payments to the applicant.
24I am not satisfied on a balance of probabilities that the applicant has established that the respondent “leveraged its position to frustrate the seeking of further therapy.” The applicant does not direct me to evidence that the respondent had any intention of frustrating him from seeking further therapy. In its consideration of the reasonableness and necessity of the plan in 2002, the respondent sought updated CNRs from the applicant and it scheduled an IE. After an application was filed, the respondent scheduled another IE. I find that, in these circumstances, the respondent was fulfilling its ongoing obligation to adjust the file. The respondent denied the plan based on the opinion from its assessor. In these circumstances, I do not find that the respondent’s behaviour was in any way imprudent, stubborn, inflexible, or unyielding.
25For these reasons, I find on a balance of probabilities that the respondent is not liable to pay an award under Reg. 664.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
ORDER
27For the above reasons, I find:
i. The respondent is not liable to pay an award.
ii. The applicant is not entitled to interest.
Released: March 11, 2026
Laura Goulet
Adjudicator