Citation: Sadiq v. Primmum Insurance Company, 2026 ONLAT 24-014161/AABS

Licence Appeal Tribunal File Number: 24-014161/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:

Shaik M Sadiq

Applicant

and

Primmum Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Julia Logoutova, Paralegal

For the Respondent:

Damian Di Biase, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Shaik Sadiq, the applicant, was involved in an automobile accident on April 7, 2023, 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, Primmum Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. 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 limit ('MIG")?
2. Is the applicant entitled to $3,911.75 for Chiropractic and Massage Therapy Services, proposed by Aqua Wellness Centre Ltd., in a treatment plan/OCF-18 ("treatment plan") submitted September 5, 2023?
3. Is the applicant entitled to $3,685.75 for Chiropractic and Massage Therapy Services, proposed by Aqua Wellness Centre Ltd., in a treatment plan submitted November 24, 2023?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant is subject to the MIG and its $3,500.00 funding limit.
2. As I have found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
3. The treatment plans are payable in accordance with s.38(11) of the Schedule.
4. Interest is payable on any outstanding amount in accordance with s. 51 of the Schedule.

ANALYSIS

Applicability of the MIG

4I find that the applicant has not established on a balance of probabilities that he sustained injuries as a result of the accident that warrant his removal from the MIG.

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 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.

7The applicant has not made submissions or directed me to evidence that the applicant's accident-related injuries warrant his removal from the MIG. Instead, the applicant submits that the respondent informed the applicant that his injuries do not fall within the MIG and that the MIG does not apply in an Explanation of Benefits ("EOB") dated May 23, 2024. The applicant seeks an order confirming the applicant's removal from the MIG.

8The respondent submits that the May 23, 2024 EOB, which included the s.44 insurer's examination ("IE") report of Dr. Maria Nesterenko, physician, informed the applicant that his injuries had been assessed as minor, that he remained subject to the MIG, and that the respondent was maintaining the denials of the treatment plans for chiropractic and massage services in dispute in this hearing.

9I find the respondent's submissions on these points to be unhelpful to my analysis, as the evidence reveals that the May 23, 2024 EOB does not address the treatment plans in dispute, and informs the applicant that the MIG does not apply. However, the reasons given for the MIG determination do not support the applicant's removal from the MIG, as they rely on excerpts of Dr. Nesterenko's March 18, 2024 IE report, in which she opined that the applicant's injuries met the definition of minor in the Schedule and that he did not have a pre-existing condition that would preclude him from recovering within the MIG funding limits.

10The EOB states:

Based on the report of the Examination required by insurer we have made a determination that your impairment does not come within the definition of a minor injury and the Minor Injury Guideline does not apply, for the following reason(s):

As per Dr. Maria Nesterenko GP

-In my opinion, Mr. Shaik sustained injuries as a result of the subject loss that are "minor", as defined in the SABS and for which the Minor Injury Guideline applies.

-There is no compelling evidence of a pre-existing medical condition that will prevent Mr.Shaik from achieving maximal recovery from the "minor injury" in relation to the initially sustained injuries as a result of the subject motor vehicle accident, if subject to the limits for treatment of "minor injuries", as set forth in the SABS.

11Based on the context of the MIG determination in the EOB itself, and the respondent's subsequent actions, I find that it is more likely than not that the statement that the MIG did not apply was a clerical error which the respondent had overlooked. I say this because, as the applicant notes, the respondent did not attempt to correct the EOB. Additionally, neither party has directed me to evidence that the respondent provided the applicant with further information about the consequences of a removal from the MIG, including the increase in the funding limit, or that the respondent would reassess the denied treatment plans to determine whether they were reasonable and necessary. Additionally, neither party has directed me to evidence that the applicant sought clarification of his MIG status or sought further approvals for benefits subsequent to the treatment plan dated November 24, 2023.

12Further, the accident benefits file reveals that the respondent continued to send Standard Benefits Statements which reflected that the applicant was subject to the MIG limit of $3,500.00 after the EOB was sent to the applicant. On July 22, 2024, the respondent sent a letter to the applicant confirming that he was subject to the MIG, that the $3,500.00 had been exhausted, and that his file would be closed due to inactivity, and requesting additional medical information that the applicant wished the respondent to review.

13As a result, I find on a balance of probabilities that the respondent did not remove the applicant from the MIG.

14For these reasons, and because the applicant has not made submissions or led evidence to support his removal from the MIG for medical reasons, I find that the applicant has not met his onus to prove that he sustained injuries as a result of the accident that warrant his removal from the MIG.

15The applicant remains subject to the MIG, and its $3,500.00 funding limit.

16As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.

17However, the applicant submits that the denials of the treatment plans in dispute do not comply with section 38(8) of the Schedule and the treatment plans are therefore payable under s. 38(11). I will consider the applicants submissions with respect to s.38.

Section 38

18Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

19If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

Is the treatment plan for $3,911.75 for chiropractic and massage therapy services submitted September 5, 2023 payable under s. 38(11)?

20I find that the treatment plan for chiropractic and massage therapy services is payable under s. 38(11).

21The applicant submits that the respondent's September 15, 2023 denial letter does not comply with s. 38(8) because it does not identify the goods and services in the treatment plan, and it does not provide sufficient medical reasons for the denial. The respondent argues that the denial is valid.

22While the denial letter does not specify the goods and services set out in the treatment plan, I find that the reference to the goods and services is sufficiently clear because the denial letter identifies the date, amount, and treatment provider of the treatment plan, and the treatment plan is attached to the denial letter. The denial letter identifies the applicant's injuries, and explains that the injuries fall within the definition of Minor Injury as set out in the Schedule as a medical reason.

23However, I find that the denial letter is not a clear and unequivocal denial. It states both that the respondent has determined that the applicant's injuries fall within the MIG and that the treatment plan will be subject to a s.44 examination ("IE") for a MIG determination, which I find confusing. As a result, I find that the denial notice is not sufficiently clear for an unsophisticated person to make an informed decision whether to dispute the denial.

24I find that the respondent's September 15, 2023 denial letter is not compliant with s.38(8), and s.38(11) is engaged.

25As noted above, the March 23, 2024 EOB did not reference the treatment plan, and neither party has directed me to a subsequent denial of the treatment plan in dispute.

26Accordingly, the treatment plan for chiropractic and massage therapy services submitted on September 5, 2023 is payable in accordance with s. 38(11), once incurred and properly invoiced.

Is the treatment plan for $3,685.75 for chiropractic and massage therapy services submitted November 24, 2023 payable under s. 38(11)

27I find that the treatment plan is payable in accordance with s. 38(11).

28The applicant submits that the respondent's December 1, 2023 denial letter does not comply with s. 38(8) because it does not identify the goods and services in the treatment plan, and it does not provide sufficient medical reasons for the denial. The respondent argues that the denial is valid.

29The denial letter identifies the applicant's injuries as soft tissue injuries to the shoulder and thoracic spine as well as a contusion in the knee, and explains that these injuries fall within the definition of Minor Injury set out in the Schedule, which is a medical reason.

30While it does not identify the goods and services in the treatment plan, as above, I find that the reference to the goods and services is sufficiently clear because it identifies the date, amount and provider and amount of the treatment plan and the treatment plan is attached to the EOB. It also clearly states that the respondent does not agree to pay for any of the goods and services set out in the treatment plan.

31However, I find that the EOB is not a clear and unequivocal denial as it states that the treatment plan will be reviewed on the basis of whether the goods and services are reasonable and necessary once the respondent has received the results of the pending s. 44 examinations, which I find confusing, because the denial is based on the applicant's injuries falling within the MIG. In my view, the wording suggests that the treatment plan is subject to a second, different test. As such, I find that the EOB is not sufficiently clear and understandable for an unsophisticated person to make an informed decision whether to dispute the denial.

32As a result, I find that the December 1, 2023 EOB is not compliant with s 38(8), and s. 38(11) is engaged.

33As noted above, the March 23, 2024 EOB was silent on the treatment plan, and neither party has directed me to evidence that a subsequent denial was sent to the applicant.

34Accordingly, I find that the November 24, 2023 treatment plan for $3,685.75 for chiropractic and massage therapy services is payable in accordance with s 38(11), once incurred and properly invoiced.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

ORDER

36I find that:

1. The applicant is subject to the MIG and its $3,500.00 funding limit.
2. As I have found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
3. The treatment plans are payable in accordance with s.38(11) of the Schedule.
4. Interest is payable on any outstanding amount in accordance with s. 51 of the Schedule.