Licence Appeal Tribunal File Number: 24-001644/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:
Zbigniew aka Marc Marciniak
Applicant
and
Coachman Insurance Company
Respondent
DECISION
ADJUDICATOR:
Matthew Frontini
APPEARANCES:
For the Applicant:
Michael Connolly, Counsel
For the Respondent:
Jason H. Goodman, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Zbigniew Marciniak also known as Marc Marciniak, the applicant, was involved in an automobile accident on June 5, 2018, 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, Coachman 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $2,000.00 for Synvisc Injection treatment, proposed by Dr. Khalid Syed in a treatment plan/OCF-18 (“treatment plan”) dated January 32. 2022?
iii. Is the applicant entitled to $3,278.00 for Chiropractic and Massage treatment, proposed by Dr. Terry Tran in a treatment plan dated February 8, 2022?
iv. Is the applicant entitled to $1,400.00 for Synvisc Injection treatment, proposed by Dr. Khalid Syed in a treatment plan dated September 20, 2022?
v. Is the applicant entitled to $1,400.00 for Synvisc Injection treatment, proposed by Dr. Khalid Syed in a treatment plan dated February 14, 2023?
vi. Is the applicant entitled to $2,907.44 for chiropractic treatment, proposed by Dr. Steven Murray in a treatment plan dated May 25, 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
3I find that:
i. The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore are not subject to treatment within the $3,500.00 MIG limit.
ii. The applicant is entitled to $2,000.00 for Synvisc Injection treatment, proposed by Dr. Khalid Syed in a treatment plan dated January 31, 2022.
iii. The applicant is entitled to $3,278.00 for the 2022 Chiropractic and Massage Plan.
iv. The applicant is entitled to $1,400.00 for Synvisc Injection treatment, proposed by Dr. Khalid Syed in a treatment plan dated September 20, 2022.
v. The applicant is entitled to $1,400.00 for Synvisc Injection treatment, proposed by Dr. Khalid Syed in a treatment plan dated February 14, 2023.
vi. The applicant is not entitled to $2,907.44 for chiropractic treatment, proposed by Dr. Steven Murray in a treatment plan dated May 25, 2023.
vii. The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
viii. The applicant is entitled interest in respect of the treatment plans set out in subparagraphs (ii) – (v) above in accordance with s. 51 of the Schedule.
ANALYSIS
The applicant is removed from the MIG
4I find that the applicant has established on a balance of probabilities that his injuries are not predominantly minor, specifically that he sustained a meniscal tear in his left knee as a result of the accident.
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG and definition of a “minor injury”.
7The applicant submits that his injuries fall outside the definition of minor injury. Specifically, the applicant relies on the diagnosis of a meniscal tear of in his left knee as an accident-related injury that is not minor. The tear was first identified in an MRI report, dated April 7, 2019, and subsequently the applicant underwent arthroscopic surgery of his left knee to repair the injury on October 3, 2019.
8The respondent submits that the applicant has not established that the meniscal tear and subsequent surgical intervention were directly caused by the accident. Rather, the respondent points to the identification of a meniscal tear in an MRI of the applicant’s right knee from 2013 and submits that because the applicant is of an advanced age, the left knee meniscal tear identified in 2019 represents the same progression of knee degeneration as previously seen in the right knee.
9I note that the respondent’s theory that the applicant’s left knee meniscal tear is the result of general degeneration, as previously reflected in the right knee, is not supported by any s. 44 assessment or medical opinion. Rather, these assessments are silent on the left knee meniscal tear identified in 2019 and the right knee meniscal tear identified in 2013.
10The respondent’s theory that previous injury to the right knee was the result of age-related degeneration is not supported by the evidence. For example, Dr. Dessouki’s s. 44 assessment report, dated September15, 2021, acknowledges that the applicant’s pre-accident injuries included a right knee injury sustained in a previous motor vehicle accident, which was subsequently treated with arthroscopic surgery. The 2019 MRI report reviewed by Dr. Dessouki in connection with this injury indicated that the meniscal tear caused by the previous accident had healed. There is no medical evidence that supports that the previous meniscal tear in the right knee was due to age-related degeneration. To the contrary, this prior injury was the result of a motor vehicle accident. Similarly, there is no medical evidence supporting the theory that the meniscal tear in the left knee, identified following the accident that is the subject of this application, was caused by age-related degeneration. Rather, the complaints and limitations in the applicant’s left knee only began to be observed following the subject accident.
11I find that the applicant has established on a balance of probabilities that he has suffered more than a predominantly minor injury as a result of the motor vehicle accident. As such, the applicant is removed from the MIG and is not subject to the $3,500.00 funding limit applicable to minor injuries.
The applicant is entitled to the Injection Plans
12I find that the applicant has established on a balance of probabilities that the three treatment plans proposed by Dr. Syed are reasonable and necessary.
13To receive payment for a treatment and assessment plan under ss. 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.
14The applicant submits that he entitled to the treatment plans dated January 31, 2022, September 20, 2022, and February 14, 2023, proposed by his treating orthopaedic surgeon, Dr. Sayed (collectively, the “Injection Plans”). As reflected in Dr. Sayed’s contemporaneous clinical notes and records, he consistently prescribed these injections to address the accident-related pain in the applicant’s left knee.
15Furthermore, the applicant’s submissions note that respondent’s own assessors agreed that the applicant’s previous treatments, which included injections, had provided the applicant with pain relief. Specifically, in his s. 44 physiatry assessment, dated September 15, 2021, Dr. Dessouki concurred with the applicant’s prior course of treatment comprising rehabilitation therapy, prescription and over-the-counter medication.
16The respondent submissions do not specifically address the reasonableness and necessity of these, or any of the treatment plans in dispute. Rather, the respondent’s sole argument is that because the applicant’s injuries are minor in nature, the applicant is not entitled to funding beyond the MIG limit. Accordingly, the respondent submits that these treatment plans are not payable.
17Given that I have already found that the applicant’s injuries are not minor and are not subject to the MIG funding limit, I am not persuaded by the respondent’s brief submissions in respect of the treatment plans in dispute. I am also not persuaded by Dr. Dessouki’s opinion that further treatment is not reasonable and necessary given that his assessment did not address the applicant’s meniscal tear, and he did not consider any of clinical notes and records of the applicant’s treating orthopaedic surgeon, Dr. Syed, pertaining to the applicant’s treatment.
18Instead, I am persuaded by the applicant’s submissions, which are grounded in, and consistent with, the evidence. The record is clear that these injections provide some relief from the pain caused by the accident-related injury to the applicant’s left knee. It is well established that pain relief is a legitimate medical and rehabilitation goal.
19I find that the applicant has established on a balance of probabilities that the three treatment plans proposed by Dr. Syed, are reasonable and necessary given that these treatments provide the applicant with pain relief from his accident-related injuries.
The applicant is entitled to the 2022 Chiropractic and Massage Plan
20I find that the applicant has established on a balance of probabilities that the treatment plan for chiropractic and massage, proposed by Dr. Terry Tran, and dated February 8, 2022 (the “2022 Chiropractic and Massage Plan”), is reasonable and necessary.
21The applicant submits that this treatment plan’s goals of pain reduction, increased range of motion and increased strength are reasonable and necessary in view of the applicant’s continued limitations due to the meniscal tear. As previously described above, Dr. Dessouki’s September 15, 2021 assessment concurred with the applicant’s treatment to date, which included similar treatments as contained in the 2022 Chiropractic and Massage Plan.
22As previously discussed, the respondent did not make specific submissions regarding the reasonableness and necessity of any of the disputed treatment plans, instead relying on the argument that the applicant is confined to the MIG.
23Once again, I am persuaded by the applicant’s submissions. The treatment goals of the 2022 Chiropractic and Massage Plan are reasonable and necessary in view of the applicant’s non-minor accident-related injuries. Furthermore, I am again not persuaded by Dr. Dessouki’s conclusion that further treatment is not reasonable and necessary as his opinion did not take into consideration the applicant’s meniscal tear.
24I find that the applicant has established on a balance of probabilities that the 2022 Chiropractic and Massage Plan is reasonable and necessary.
The applicant is not entitled to the 2023 Chiropractic Plan
25I find that the applicant has not established that treatment plan for chiropractic treatment, proposed by Dr. Steven Murray, and dated May 25, 2023 (the “2023 Chiropractic Plan”) is reasonable and necessary. He also has not established that it is payable pursuant to s. 38 of the Schedule.
26The applicant’s submissions rest on the proposition that the respondent’s denial letter in respect of the 2023 Chiropractic Plan was deficient. The applicant submits that this denial letter was insufficient because the bases of the denials, that the applicant’s injuries are minor and because it was submitted beyond the 260-week mark, are incorrect. Because, the denials are incorrect, the applicant submits that they are invalid, and that the incurred portions of the 2023 Chiropractic Plan are deemed payable.
27The applicant’s submissions do not cite any authority in support of the proposition that factually incorrect denials render denial letters invalid and result in the incurred portions of the relevant treatment plans being deemed payable. However, it appears the applicant is referencing the notice requirements under s. 38 of the Schedule.
28Section 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.
29While the applicant may not agree with the respondent’s determination, that does not mean that the denial contravened section 38(8) by not including medical reasons. As the Ontario Court of Appeal held in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 the purpose of the denial is to provide a reason for the denial, however that reason does not need to be legally correct. Citing its earlier decision in Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) (Turner), the Court in Turner noted at para 8:
The purpose of the requirement to give reasons is to permit the insured to decide whether or not to challenge the cancellation. If the reasons given are legally wrong the insured will succeed in that challenge. Requiring that the reasons be legally correct goes beyond both the requirement in the relevant regulation, and the purpose of such a notice.
30The respondent’s denial letter provided clear reasons for the denial of the treatment plan: (1) that the applicant was within the MIG, which in my view is a medical reason; and (2) that the plan was submitted after the 260-week deadline imposed by the Schedule. I find that this denial letter is compliant with section 38(8) of the Schedule.
31As the applicant’s submissions were limited to the alleged invalidity of the respondent’s denial, and did not provide any arguments regarding the reasonableness and necessity of the 2023 Chiropractic Plan, I find that he has not met his burden to establish entitlement to this plan.
Interest
32Interest applies on the payment of any overdue benefits in respect of the 2022 Chiropractic and Massage Plan and Injection Plans pursuant to s. 51 of the Schedule.
Award
33The case conference report and order in this application, dated July 18, 2024, indicates that the 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.
34The applicant’s hearing submissions did not make any reference to an award. As there are no submissions regarding what, if any, of the respondent’s conduct was unreasonable, I find that the applicant has not established that he is entitled to an award.
ORDER
i. The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore are not subject to treatment within the $3,500.00 MIG limit.
ii. The applicant is entitled to $2,000.00 for Synvisc Injection treatment plan, proposed by Dr. Khalid Syed in a treatment plan dated January 31, 2022.
iii. The applicant is entitled to $3,278.00 for the 2022 Chiropractic and Massage Plan.
iv. The applicant is entitled to $1,400.00 for Synvisc Injection treatment plan, proposed by Dr. Khalid Syed in a treatment plan dated September 20, 2022.
v. The applicant is entitled to $1,400.00 for Synvisc Injection treatment plan, proposed by Dr. Khalid Syed in a treatment plan dated February 14, 2023.
vi. The applicant is not entitled to $2,907.44 for chiropractic treatment, proposed by Dr. Steven Murray in a treatment plan dated May 25, 2023.
vii. The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
viii. The applicant is entitled interest in respect of the three Injection Plans and the 2022 Chiropractic and Massage Plan in accordance with s. 51 of the Schedule.
Released: January 12, 2026
__________________________
Matthew Frontini
Adjudicator