Citation: Thambirajah v. Security National Insurance Company, 2026 ONLAT 24-010208/AABS

Licence Appeal Tribunal File Number: 24-010208/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:

Kalaichchelvan Thambirajah

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Caley Howard

APPEARANCES:

For the Applicant:

Yalda Aslamzada, Counsel

For the Respondent:

Philip Byun, Counsel

HEARD:

By way of written submissions

1Kalaichchelvan Thambirajah, the applicant, was involved in an automobile accident on September 6, 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. 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 $1,180.11 for physical treatment, proposed by Prime Healthcare Inc in a treatment plan dated November 15, 2023?

iii. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Prime Healthcare Inc in a treatment plan dated November 15, 2023?

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

3I find that:

i. The applicant remains in the MIG;

ii. The applicant is not entitled to the treatment plan for physical treatment;

iii. The applicant is not entitled to the treatment plan for a chronic pain assessment;

iv. The respondent is not liable to pay an award; and

v. The applicant is not entitled to interest.

PROCEDURAL ISSUES

4I find that the applicant served its submissions on the respondent as required.

5The respondent submits that it did not receive the applicant’s submissions, which were due on July 16, 2025 and had still not received them by August 1, 2025, the date on which the respondent’s submissions were due. The respondent submits that without submissions, the applicant has not met his burden of proof with respect to any of the issues in dispute.

6The applicant submits that he served a copy of his submissions on the respondent’s counsel on July 16, 2025, as required by the deadlines set out in the Case Conference Report and Order. In support of his submission, he relies on a copy of the email to counsel for the respondent dated July 16, 2025 and the certificate of service signed by Nadia Sampogna and dated July 16, 2025.

7I am satisfied that the email and certificate of service confirm that the applicant served his submissions on July 16, 2025. In addition, I find that the applicant included a copy of the certificate of service and cover letter enclosing the submissions to the respondent’s counsel, both dated July 16, 2025, when he filed his submissions with the Tribunal on July 16, 2025.

8I find that the applicant served his submissions on the respondent on July 16, 2025 as set out in the Case Conference Report and Order.

ANALYSIS

The applicant remains in the MIG

9I find that the applicant remains in the MIG.

10Section 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.”

11An 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.

12The applicant made no submissions and directed me to no evidence respecting his removal from the MIG, limiting his submissions to the argument that the respondent’s notices were inadequate under s. 38(8) of the Schedule.

13The respondent submits that the applicant sustained only soft tissue injuries in the accident and has not proven that he should be removed from the MIG. It relies on the IE report of Dr. Andrzej Gwardjan, Physiatrist, dated April 16, 2024.

14I find that the applicant has not met his burden of proof as he did not make submissions or direct me to evidence with respect to his removal from the MIG and accordingly he remains subject to treatment within the MIG.

15Given that I have found that the applicant remains in the MIG, an assessment of whether the treatment plans in dispute are reasonable and necessary is not warranted. The applicant did not make any arguments as to the reasonableness and necessity of the treatment plans. His arguments centred on whether the respondent’s denials of the treatment plans complied with s. 38(8) of the Schedule.

16Section 38(8) of the Schedule requires an insurer to respond to each treatment plan within 10 days of receiving it by identifying the goods, services, assessments and examinations described in the treatment plan that the insurer does and does not agree to pay for. The response must include the medical reasons and all of the other reasons why the insurer considers any proposed treatments or assessments not reasonable or necessary.

17If an insurer fails to comply with s. 38(8), the consequences are:

i. The insurer cannot take the position that the insured person has an impairment to which the MIG applies; and

ii. The insurer must pay for any proposed treatments or assessments set out in the plan that are incurred in the period starting on the 11th day after the insurer receives the plan and ending on the date when the insurer provides the insured with a response that complies with s. 38(8).

18Similarly, s. 44(5)(a) of the Schedule sets out the criteria for the notice letters that require an insured person to attend an insurer’s examination (“IE”). The insurer must set out “the medical and other reasons” for the examination.

19Although I am not bound by Tribunal decisions, I find that T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), provides useful guidance on the meaning of “medical reasons.” It found that such reasons should:

i. include specific details about the insured’s condition that formed the basis for the insurer’s decision; and

ii. should allow an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision.

20The applicant submits that the respondent’s letters denying his treatment plans did not comply with s. 38(8) and that the treatment plans in dispute are payable pursuant to s. 38(11). The treatment plans in dispute were submitted on November 15, 2023 and the respondent denied both plans by letter dated November 30, 2023, which letter also required the applicant to attend a physiatry IE with Dr. Gwardjan. After receiving the results of Dr. Gwardjan’s report, the respondent sent a second denial letter, dated June 5, 2024, which referred to the results of Dr. Gwardjan’s report.

The letter dated November 30, 2023 does not comply with s. 38(8) or s. 44(5)(a)

21The applicant submits that the letter of November 30, 2023 does not comply with s. 38(8) or s. 44(5)(a).

22The respondent’s submissions did not address the adequacy of its responses to the treatment plans.

23The letter dated November 30, 2023 set out the following rationale for denying the treatment plans and requesting the applicant’s attendance at the IE:

Based on the medical documentation on file, there is no compelling medical evidence to warrant having an Chronic pain assessment and ongoing physical therapy. A second medical opinion is required to determine if the proposed assessment is reasonable and necessary at this juncture.

24I find that the letter dated November 30, 2023 does not comply with s. 38(8) of the Schedule because it does not refer to any specific accident-related impairment or condition or any specific details of the medical evidence that formed the basis of the respondent’s decision in a way that would allow the applicant to make an informed decision to accept or dispute the respondent’s decision.

25The same letter of November 30, 2023 required the applicant’s attendance at the IE. I find that the letter does not comply with s. 44(5)(a) as it does not refer to the details of the applicant’s condition, nor does it provide sufficient details about what is missing from the medical documentation on file.

The letter dated June 5, 2024 complies with s. 38(8)

26The applicant submits that because the IE was improperly procured, its results of the IE, conducted by Dr. Gwardjan, are void ab initio and may not be relied upon by the respondent in the letter dated June 5, 2024, which in turn makes the letter of June 5, 2024 non-compliant with s. 38(8). The applicant directs me to the Tribunal decision of Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) (“Taksali”), in support of this submission.

27The respondent’s submissions did not address the compliance of its denial letters with s. 38(8).

28The letter dated June 5, 2024 sets out the following rationale for denying the treatment plans, referencing the IE report of Dr. Gwardjan, dated April 16, 2024:

Based on today’s assessment and file review, in my opinion from a physical perspective, as a result of the accident, he sustained uncomplicated soft tissue injuries predominantly to the axial spine without objective evidence of serious musculoskeletal trauma.

Notwithstanding voiced complaints, there was no evidence during today’s assessment of ongoing physical motor vehicle accident-related impairments which would necessitate the interventions listed in the Treatment and Assessment Plans in dispute.

29I do not agree with the applicant’s submissions that the respondent’s reliance on Dr. Gwardjan’s report makes the June 5, 2024 letter non-compliant with s. 38(8). Firstly, I note that I am not bound by other Tribunal decisions. In addition, I do not find the reasoning in Taksali compelling in these circumstances. In Taksali, the Tribunal did not consider that the remedy for a IE notice that does not comply with s. 44(5) is that the applicant is not required to attend the IE. In this case, the applicant attended the IE with Dr. Gwardjan as requested and the respondent relied on those results in denying the applicant’s claim. By detailing that reliance in the denial letter of June 5, 2024, the respondent was providing the applicant with notice of its reasons for denying the claim, as required by s. 38(8). Any subsequent finding by the Tribunal respecting whether it was appropriate or correct for the respondent to rely on Dr. Gwardjan’s report would not change the fact that the respondent relied upon the report in coming to its decision at the time it wrote the June 5, 2024 letter.

30Therefore, I find that the letter of June 5, 2024 complies with s. 38(8) because it describes the aspects of the opinion of Dr. Gwardjan that the respondent relied on, specifying the injuries sustained by the applicant in the accident and connecting Dr. Gwardjan’s opinion to the treatment plans in a manner that would enable the applicant to determine whether to accept or dispute the respondent’s decision to deny the treatment plans.

31As a result, I find that the letter of June 5, 2024 remedies the deficient medical reasons in the letter of November 30, 2023.

32The Divisional Court in Aviva General Insurance Company v. Catic, 2022 ONSC 6000, held that the items listed in the subject treatment plan are payable under s. 38(11)2 only if they are incurred during the period for which a compliant denial notice remains outstanding. The applicant has not directed me to evidence that the treatment plans were incurred prior to June 5, 2023 when the deficient notice was cured. Therefore, I find that the disputed treatment plans are not payable as a result of s. 38(11).

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no overdue benefits, therefore the applicant is not entitled to interest.

Award

34The 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. As there are no benefits withheld or delayed, the respondent is not liable to pay an award.

ORDER

35I find that: