Citation: Mayooran v. TD General Insurance Company, 2026 CanLII 37021

Licence Appeal Tribunal File Number: 24-010206/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:

Swarna Mayooran

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Selva Thiyagarajah, Paralegal

For the Respondent:

Noura Bagh, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Swarna Mayooran, the applicant, was involved in an automobile accident on February 2, 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, TD 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from July 21, 2023 to date and ongoing?

iii. Is the applicant entitled to $2,738.40 for physiotherapy services, proposed by Ajax Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) submitted October 24, 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

3The applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

4The applicant is not entitled to an IRB.

5As the MIG limits have been exhausted, it is not necessary to consider whether the treatment plan for physiotherapy services is reasonable and necessary.

6The respondent’s denial of the disputed plan was proper notice in accordance with s.38(8) of the Schedule, and therefore, the disputed treatment plan is not payable pursuant to s.38(11) of the Schedule.

7As no benefits are owing, interest and an award are not payable.

ANALYSIS

The applicant has not demonstrated that she suffers from accident-related injuries that warrant removal from the MIG

8I find that the applicant has not demonstrated that she sustained impairments which warrant removal from the MIG.

9Section 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 in accordance with the MIG. 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.”

10An 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 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. The applicant bears the burden of proof to establish that her injuries are not minor as defined by the Schedule.

11Although the applicant submits that she sustained physical and psychological impairments as a result of the accident, she does not make any submissions or direct me to any medical evidence which may support her removal from the MIG. Rather, the applicant submits that her physical and psychological impairments continue to restrict her ability to engage in employment and activities of normal life, without documents in support of her submission.

12In response, the respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of a minor injury under the Schedule. The respondent relies on the s.44 Insurer Examination (“IE”) report dated May 7, 2024, by Dr. Maria Nesterenko, general practitioner.

13The respondent submits that the applicant has not provided medical documentation in support of a claim for chronic pain with functional impairment, or psychological impairment to warrant removal from the MIG, and I agree. The respondent relies on the IE report dated May 7, 2024, by Dr. Nesterenko, in which Dr. Nesterenko indicates that the applicant has full range of motion in her neck, shoulders and back, with no functional limitations in her activities of daily living, or vocational activities. The respondent submits that Dr. Nesterenko concludes that the applicant’s uncomplicated soft tissue injuries are resolving.

14I find that the applicant has not met her burden of establishing that her accident-related impairments are not uncomplicated soft tissue injuries with no residual functional impairment. In addition, the applicant does not point or direct me to any CNRs of her treating physicians in support of her removal from the MIG. The applicant does not mention any functional restrictions, or psychological symptoms. The applicant’s focus in her submissions is on the alleged procedural errors made by the respondent, and it is submitted that these procedural errors should result in finding the disputed benefits are payable.

15I find that the applicant has not proven on the balance of probabilities that she suffers from an accident-related physical or psychological impairment warranting removal from the MIG.

The applicant is not entitled to an IRB from July 21, 2023 to date and ongoing

16I find that the applicant has not established on a balance of probabilities that she is entitled to an IRB. I find that the applicant has not proven that she meets either the pre- or post-104-week test for entitlement to IRBs for the following reasons.

17The applicant does not address whether she is entitled to a pre-104 or post-104-week IRB in her submissions and focuses instead on whether the respondent was non-compliant in arranging s. 44 IEs regarding her claim for an IRB.

18To receive payment for an IRB under s.5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. At the post-104 mark, under s. 6 of the Schedule the applicant must prove that she suffers a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience. The applicant bears the burden of proving, on a balance of probabilities, that they meet both tests.

19The applicant relies on a Disability Certificate (“OCF-3”) dated May 24, 2023, completed by Dr. Sandra Hinin, chiropractor, which indicates that the applicant sustained sprain/strain type injuries to her neck, back, knee and wrist as a result of the accident. The OCF-3 indicates that the applicant worked as a server and kitchen helper before the accident. The applicant submits that she has not returned to work after the accident because of her physical and psychological impairments.

20The respondent submits that the applicant has not met her onus in proving that she is substantially unable to perform the essential tasks of her pre-accident employment as a result of the accident. The respondent relies on the IE report of Dr. Maria Nesterenko dated May 7, 2024, who concluded that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment, which involves cooking, making wings, cleaning and serving. During the physical examination of the applicant, Dr. Nesterenko found range of motion in the applicant’s neck, shoulders, elbows, wrists and back within normal limits. Although, Dr. Nesterenko found some tenderness in the applicant’s elbows, back and knees, she concluded that applicant’s strain/sprain injuries did not prevent her from returning to her pre-accident job.

21I find the medical evidence relied upon by the applicant does not support that she has a substantial inability to perform the essential tasks of her employment within the 104-week period. In addition, I find that the applicant has not provided a description of the essential tasks of her pre-accident employment.

22I find that the applicant has not met her burden in proving that she has suffered a substantial inability to perform the essential tasks of her employment as a kitchen helper at Sutha Wing Shop within 104 weeks after the accident.

23The applicant did not address the question of whether she satisfies the test for post-104-weeks IRBs. I find that the applicant makes no submissions, nor does she direct me to any evidence in support of whether she has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

24For the above-noted reasons, I find that the applicant has not met her burden of proving on a balance of probabilities that she meets the pre- or post-104-wek IRB test. As a result, she is not entitled to payment of an IRB in the amount of $400.00 per week from July 21, 2023 to date and ongoing.

Section 44 of the Schedule

25The applicant did not file submissions on eligibility to IRBs. Instead, she focused on the respondent’s non-compliance with s. 44 of the Schedule. I find that the applicant failed to attend properly scheduled IEs, without providing a reasonable explanation.

26Under s. 44 of the Schedule, the applicant is required to attend at IEs if the following conditions are met:

a. IEs are to be conducted not more often than is reasonably necessary;

b. IEs are to be conducted by regulated health professionals or people who have expertise in vocational rehabilitation;

c. The IEs are to be scheduled for a day, time, and place convenient to the applicant;

d. The respondent is required to provide notice of the IE to the applicant five or more business days before the IE;

e. The IE notice is required to provide the applicant with the medical and any other reasons for the IE, whether she was required to attend and if so, the day, time and location of the IE and the name of the IE assessors, their regulated health profession, and their titles and designations indicating their specialization, if any.

27The interpretation of a “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, 2003 ONFSCDRS 92 and was more recently reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:

a. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed;

b. The onus is on the insured person to establish a “reasonable explanation”;

c. Ignorance of the law is not a “reasonable explanation”;

d. The test for “reasonable explanation” is both a subjective and objective test that should take into account both personal characteristics and a “reasonable person” standard;

e. The lack of prejudice to the insurer does not make an explanation automatically reasonable; and,

f. An assessment of reasonable includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.

28Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.

29The applicant submits that the respondent unreasonably suspended IRB payments because she was unable to attend IEs, which were scheduled and re-scheduled without regard for her convenience, and the respondent did not make reasonable efforts to accommodate her availability pursuant to s. 44(9)(2).

30The applicant further submits that the notice of examination (“NOE”) dated October 5, 2023, received on October 11, 2023, for a re-scheduled functional capacity evaluation (“FCE”) on October 13, 2023 is non-compliant with s, 44(6) of the Schedule because she received less than 5 business days notice.

31The respondent submits that it paid the applicant IRBs following the accident. Under s. 37(1) of the Schedule, if the respondent wanted to determine if the applicant was still entitled to IRBs, the respondent was entitled to notify the applicant that it required her to undergo an IE. The choice of the IE assessor is the respondent’s as set out in 16-003144 v. Cumis. See also paragraph 11 of the Tribunal’s reconsideration decision in R.J. v. Economical Insurance Company, 2020 CanLII 80296 (ON LAT). Under s. 37(2)(d) and 37(7) of the Schedule, if the applicant failed or refused to attend at an IE that was properly requested by the respondent. The respondent was entitled to make a determination that the applicant was no longer entitled to IRBs.

32The respondent submits that the applicant is barred under s. 55(1)2 of the Schedule from proceeding with her claim for IRBs because she failed to attend IEs scheduled under s. 44 of the Schedule.

33The respondent submits that it provided proper notice on July 4, 2023, for IEs to determine the applicant’s continued eligibility for an IRB. The respondent further submits that it provided proper notice on August 18, 2023, for re-scheduled IEs. The respondent submits that by notice dated October 13, 2023, it re-scheduled the FCE on November 8, 2023, and for a psychological assessment on November 16, 2023. The respondent further submits that the applicant did not attend these properly scheduled IEs, without a reasonable explanation.

34The respondent argues that as of the date of this hearing the applicant has never provided an explanation for her non-attendance at the IEs.

35It is undisputed that the respondent’s NOE dated July 4, 2023 initially requested that the applicant attend IEs scheduled to proceed on July 18, 2023, at 11:00 a.m.; July 19, 2023, at 11:00 a.m.; and July 20, 2023, at 9:00 a.m. for an assessment with Dr. Maria Nesterenko, general practitioner, a functional capacity evaluation (“FCE”) and a psychological assessment regarding the applicant’s continued entitlement to an IRB.

36The respondent suspended the applicant’s IRB on July 21, 2023, because the applicant did not attend the IEs, and she did not provide a reasonable explanation for her non-attendance. On July 14, 2023, the applicant advised the respondent that since she an appointment with her son, she was unable to attend the IEs. The applicant did not provided specifics of the appointment with her son until August 10, 2023, after the dates of the assessments, when she advised that she had to drop off her son at a camp program before 9:00 a.m. and pick him up by 3:00 p.m. The applicant has not explained the reason she was unable to drop off her son before 9:00 a.m. and attend the assessments on July 18 and 19, 2023 at 11:00 a.m., nor did she request additional time to get to the IE on July 20, 2023, or make an attempt to attend the IEs.

37It is also undisputed that the respondent’s NOE dated August 18, 2023 re-scheduled the IEs for September 12 and 26, 2023, and October 12, 2023. The applicant attended the IE with Dr. Nesterenko on September 12, 2023, but she did not attend the psychological assessment on October 12, 2023. The applicant attended the FCE on September 26, 2023, but the IE facility advised her that the assessment was cancelled. On September 26, 2023, the applicant requested that the respondent change the time of the psychological assessment from 1:30 p.m. to 9:30 a.m. because she had a prior commitment.

38I find that the respondent sent a NOE dated October 13, 2023, and properly re-scheduled the FCE and psychological assessment for November 8 and 16, 2023, respectively. I find that the NOEs were compliant, and the applicant has not provided a reasonable explanation for her non-attendance at these assessments. Therefore, she is barred under s. 55, and she has not demonstrated why an IRB would be payable based on these findings.

The applicant is not entitled to the disputed treatment plan

39Since I have found that the applicant’s accident-related injuries do not remove her from the MIG, it is not necessary for me to consider whether the plan for physiotherapy services is reasonable and necessary.

40The applicant makes no submissions as to the reasonableness or necessity of the treatment plan in dispute. The applicant argues that the respondent made procedural errors. The applicant submits that these procedural errors should result in a finding that the disputed benefits are payable.

Section 38(8)

41Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

42If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11)1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that is an insurer fails to provide proper notice of the reasons for its denial it must 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 notice as described in s. 38(8).

43The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule. The denial should allow an unsophisticated person to understand the denial and make an informed decision in response.

Is the physiotherapy treatment payable?

44I find that the applicant has not established that the plan dated October 24, 2023 is payable because the respondent’s denial notice was compliant with the Schedule.

45The plan for physiotherapy services dated October 24, 2023, is by Bhavnaben Parmar, physiotherapist, of Ajax Rehabilitation Centre, in the amount of $2,738.40. The respondent wrote to the applicant on November 7, 2023 denying the benefit, within 10 business days after receiving the plan on October 24, 2023. The respondent stated in the letter dated November 7, 2023 that the applicant sustained minor injuries and the MIG limits are exhausted.

46The applicant submits that the November 7, 2023 letter was an improper denial without medical reasons, and the respondent cannot rely on its IE report since it was based on an improper denial. The applicant submits that the NOEs are also non-compliant with s.44 of the Schedule based on the improper denial and suspension of the IRB.

47I find that the November 7, 2023 notice letter was compliant with s.38(8) of the Schedule. I find that the respondent’s denial of the disputed plan is a separate issue from its denial of the IRB, and the s. 44 assessment with Dr. Nesterenko was obtained to determine the applicant’s entitlement to an ongoing IRB. The respondent has identified that the applicant’s medical condition falls under the MIG, satisfying s. 38(9). The respondent provided clear medical and other reasons in its notices, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. The applicant was provided with information regarding her right to appeal the decision within two years from the date of the denial. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of her medical documentation, it does not render the notice invalid.

48Here, the respondent states that it has not received medical evidence of a medical condition that warrants removal from the MIG. The respondent states that the medical evidence it has received suggests that the applicant sustained a minor injury as defined in the Schedule. The respondent requested medical records that it does not have but requires to determine whether the applicant’s injuries fall outside the MIG. As such, I find the respondent’s reference to the MIG, description of the applicant’s injuries as minor and the request for further information in the denial letter was a valid denial of the plan.

49Given that the respondent provided proper notice and the applicant provided no submissions as to why this plan is reasonable and necessary, I find that the applicant has not met her burden to establish entitlement to this plan.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no benefits owing or delayed, no interest is payable.

Award

51The 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. Since the respondent has not withheld or delayed benefits, an award is not payable.

ORDER

52For the reasons set out above, I find that:

i. The applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

ii. The applicant is not entitled to an IRB.

iii. As the MIG limits have been exhausted, it is not necessary to consider whether the disputed plan for physiotherapy services is reasonable and necessary.

iv. The respondent’s denial of the disputed plan was proper notice in accordance with s.38(8) of the Schedule, and therefore, the disputed treatment plan is not payable pursuant to s.38(11) of the Schedule.

v. As there are no benefits owing or delayed, the applicant is not entitled to interest or an award.

vi. The application is dismissed.