Licence Appeal Tribunal File Number: 24-015092/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:
Daniel Mekonen
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Julia Logoutova, Paralegal
For the Respondent: Owen Cromb, Counsel
HEARD: In Writing
OVERVIEW
1Daniel Mekonen, the applicant, was involved in an automobile accident on August 9, 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, Definity 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:
Is the applicant entitled to the services proposed by Aqua Wellness as follows: i. $3,516.20 for physiotherapy services, in an OCF-18/treatment plan (“treatment plan”) submitted on June 19, 2024; ii. $3,636.20 for physiotherapy services, in a treatment plan submitted on March 8, 2024; and iii. $3,816.20 for physiotherapy services, in a treatment plan submitted on December 8, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the services proposed in any of the disputed treatment plans, or interest.
4The application is dismissed.
ANALYSIS
Are the treatment plans for physiotherapy reasonable and necessary?
5The applicant has not met his onus to establish that the treatment plans for physiotherapy are reasonable and necessary.
6To receive payment for a treatment and assessment plan under s. 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.
7In dispute are three treatment plans for physiotherapy services, all from the same treatment provider, Aqua Wellness. All three plans call for 15 sessions of therapy, in an attempt to reduce pain, increase strength and increase range of motion, in an attempt to return to the activities of normal living and pre-accident work activities.
8The applicant states that he has been removed from the MIG and that the treatment plans are reasonable and necessary because he is still in pain, noting he was already in physiotherapy for an earlier accident when the subject accident occurred. To support his case, he relies on the Clinical Notes and Records (“CNRs”) from his family physician, Dr. Raafat Gindi, as well as an Independent General Practitioner Evaluation report dated January 27, 2025 by Dr. Melissa Hershberg, general practitioner.
9The respondent states that while the applicant has been removed from the MIG, it was for psychological reasons, the applicant has already achieved maximal medical recovery from his physical injuries. To support its claim, the respondent relies upon a s.44 Insurers Examination report dated March 15, 2024 by General Practitioner Dr. Babak Sharifian.
10While I am alive to the fact that the applicant has been removed from the MIG, the applicant still has the onus to establish that the treatment plans in dispute are reasonable and necessary. Having carefully reviewed the CNRs from the applicant’s family physician, I can see a long history of assorted medical complaints, including sporadic reports of back, shoulder and neck pain. Critically, however, I have not been led to any evidence which suggests that physiotherapy was recommended for accident-related injuries, or that physiotherapy was helpful in managing his accident-related pain or improving range of motion.
11Rather, I note a reference in Dr. Gindi’s CNRs dated January 12, 2024, which says “physiotherapy is not helping”. While this note post dates one of the treatment plans, I find it contemporaneous to the issues in dispute and speaks to the reasonableness and necessity of physiotherapy treatments in general.
12I have also reviewed the medical reports of Dr. Sharifian and Dr. Hershberg. Dr. Sharifian states that the applicant’s physical injuries have all resolved, and that testing was “almost devoid of findings”. Dr. Hershberg reports that the applicant had full range of motion in both his lumbar and cervical spine. In fact, the only physical injury of note she noted was decreased range of motion in the right shoulder. Having reviewed both medical reports, I have not been led to a recommendation from either doctor for ongoing or continued physiotherapy.
13Given that I have not been led to a recommendation for physiotherapy services, and that the CNRs from the applicant’s family physician report that physiotherapy was not helping, I find, on a balance of probabilities, that the applicant has not met his onus to establish that the treatment plans in dispute are reasonable and necessary.
Is the applicant entitled to a treatment plan due to non-compliance with Section 38(8) of the Schedule?
14The applicant claims the insurer has violated s. 38(8) of the Schedule, and therefore, the applicant is entitled to the treatment plans in dispute.
15Section 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.
16The applicant submits that they did not receive any response from the insurer at the time, Unifund Assurance, to the treatment plans in dispute, and there is no evidence that Unifund ever responded. Of note, both parties agree that the respondent, Definity Insurance Company, has since taken priority over the applicant’s claims.
17The respondent acknowledges that an explanation of benefits was not delivered within the 10 day period called for under s. 38(8) of the Schedule. However, it argues that s 38(11) of the Schedule compels the insurer to pay for all of the items listed in the subject treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. The respondent further argues that a proper explanation of benefits has since been provided to the applicant, yet the applicant has not been able to provide any evidence that the disputed plan was incurred during the period of non-compliance.
18I have reviewed the evidence provided by both parties and agree with the respondent. I note the applicant has submitted three Explanation of Benefits letters/forms in his evidence, all of which are dated July 30, 2025. I have reviewed the letters and find the letters to be compliant with the Schedule, with the exception of their timing.
19I do agree the explanation of benefits letters, as shown in the applicant’s evidence, were sent to the applicant well after the 10 day notice outlined in the Schedule. As such, the applicant would be entitled to the treatment plans if they were incurred. I do note I have not been led to any evidence that indicates expenses from the treatment plans were incurred between their submission on and the compliant Explanation of Benefits letters sent on July 30, 2025 to the applicant.
20As the applicant has submitted valid Explanation of Benefits letters, but has not provided any evidence of incurred expenses, I find the applicant has not, on the balance of probabilities, met the onus to establish the treatment plans in dispute are payable due to the respondent not complying with section 38(8) of the Schedule.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
ORDER
22The application is dismissed:
i. The applicant is not entitled to any of the treatment plans in dispute.
ii. No interest is payable.
Released: April 24, 2026
Jeff Chatterton
Adjudicator