Citation: Bhamra v. Aviva General Insurance Company, 2026 ONLAT 24-012931/AABS

Licence Appeal Tribunal File Number: 24-012931/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:

Jung Bhamra

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Julian DiBattista

APPEARANCES:

For the Applicant:

Aman Ghotra, Counsel

For the Respondent:

Rishabh Kalani, Counsel

HEARD: In Writing

OVERVIEW

1Jung Bhamra, the applicant, was involved in an automobile accident on August 7, 2021, 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, Aviva General 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 $4,767.60 for physiotherapy treatment, proposed by Ortho Rehab Group in a treatment plan/OCF-18 (“plan”) submitted on September 9, 2022?

iii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Ortho Rehab Group in a plan submitted on October 26, 2022?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant remains subject to the MIG.

4As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is entitled to treatment to the MIG limits.

5The treatment plans are not payable pursuant to s. 38 of the Schedule.

6There is no entitlement to interest or an award.

ANALYSIS

The applicant remains subject to the MIG

7I find that the applicant’s has not proven he has a non-minor injury that would remove him from the MIG.

8Section 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.”

9An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant submits that under s. 38(11) the respondent is precluded from taking the position that the applicant is within the MIG as they have failed to properly deny the treatment plans. However, I do not accept this submission because the Divisional Court’s binding decision in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng”) determined that the language in used in s. 38(11) refers to the specific treatment plan in question and does not impose a permanent prohibition with respect to whether the applicant is out of the MIG. In other words, an applicant is not removed from the MIG based on non-compliance with s. 38 of the Schedule.

11In reply submissions, the applicant narrowed their position to align with the Divisional Court’s direction as outlined in Zheng. No longer arguing that a non-compliant treatment plan will permanently remove an applicant from the MIG, but narrowing submissions that the specific treatment plan with a non-compliant denial is no longer subject to MIG restrictions.

12The burden of proof to prove an injury that falls outside the MIG falls on the applicant. The applicant has not made any submissions which outline a medical ground for removing the applicant from the MIG, I find that the applicant remains subject to the MIG.

13I will consider the applicant’s arguments with respect to the non-compliance of the respondent’s specific denial letters in the course of my consideration of the disputed treatment plans below.

The applicant is not entitled to the disputed treatment plans

14Having determined that the applicant remains within the MIG, an analysis of the reasonableness and necessity of the disputed treatment plans is not required. I will now turn to consideration of the applicant’s s. 38(8) arguments.

All denials are compliant with s. 38(8)

15I find that all the respondent’s denials for the treatment plans in dispute are compliant with s. 38(8) of the Schedule as the respondent has denied the plans on the basis of the applicant’s injuries falling within the minor injury guideline.

16Section 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 a impairment to which the MIG applies.

17The applicant submits that the denials for the two treatment plans in dispute are not compliant with s. 38(8) as they do not contain specific references to medical conditions and simply cite the applicant’s injuries as being within the definition of a minor injury.

18The respondent submits that the denials are compliant as they reference the applicant’s injuries falling within the minor injury guideline.

19I agree with the respondent. The letters of September 16, 2022 and November 1, 2022 are compliant with section 38(8) and 38(9) of the Schedule because they identify the plan and unequivocally deny funding for it. The denials also indicate that the respondent believes the MIG, which has a medical definition under the Schedule, applies to the applicant’s claims.

20In other words, standing within the MIG is a medical reason as it indicates that the applicant’s impairments are minor, which has a medical definition in the Schedule.

21As both denial letters are compliant with s. 38(8), I find that the applicant has not established entitlement to the treatment plans on this basis.

Interest

22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, there is no entitlement to interest.

Award

23The 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.

24As there have been no benefits withheld, there is no entitlement to an award.

ORDER

25For the reasons above, I find that:

i. The applicant remains subject to the MIG;

ii. As the applicant is in the MIG, it it not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is entitled to treatment to the MIG limits;

iii. The treatment plans are not payable pursuant to s. 38 of the Schedule;

iv. The applicant is not entitled to interest; and

v. The applicant is not entitled to an award under s. 10 of Reg 664.

26This application is dismissed.