Licence Appeal Tribunal File Number: 25-003940/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:
Mariedel Zapanta
Applicant
and
Security National Insurance Company
Respondent
DECISION
VICE-CHAIR: Brian Norris
APPEARANCES:
For the Applicant: Gordon W. Harris, Counsel
For the Respondent: Philip Byun, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mariedel Zapanta (“the Applicant”) was involved in an automobile accident on January 8, 2023 and sought benefits from Security National Insurance Company (“the Respondent”) 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 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. Is the applicant entitled to a medical benefit in the amount of $1,765.76 for physiotherapy services, proposed by N. Foley, physiotherapist, in a treatment plan/OCF-18 (“plan”) dated March 23, 2023?
ii. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
iii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant is not entitled to the plan in dispute.
4No interest or award is payable.
BACKGROUND
5The Applicant was the rear seat passenger of a vehicle which struck the side of another vehicle while changing lanes. She was examined by paramedics at the scene of the accident but did not go to the hospital.
6The Applicant has a health history that shows she sustained concussions multiple times prior to the accident. Most recently, on April 20, 2022, she was sustained a concussion due to a vehicle accident. In fact, the Applicant was receiving vestibular therapy, for the April 20, 2022 accident, around the same time that the subject accident occurred.
7The plan in dispute for this hearing is the first plan submitted by the Applicant in relation to the subject accident. The Respondent denied entitlement to the plan on the basis that the Applicant was subject to the Minor Injury Guideline (“the MIG”) and asked that she submit a treatment confirmation form (“OCF-23”) instead, which provides access to pre-approved treatment.
8The Applicant subsequently submitted an OCF-23 however, she maintains that this plan in dispute is reasonable and necessary and seeks a finding of same at this hearing.
9The Respondent submits that the plan was denied pursuant to section 38(5) of the Schedule and that the denial is not subject to review, pursuant to section 38(6).
ANALYSIS
10The Applicant bears the onus of demonstrating entitlement to the plan in dispute. For the following reasons, I find that the Applicant has not met her onus to demonstrate entitlement to the plan. Specifically, I find that the denial of the plan is valid pursuant to section 38(5) of the Schedule and is not subject to review pursuant to section 38(6).
The operation of 38(5) and 38(6) of the Schedule
11The MIG was established in 2014 under Superintendent’s Guideline No. 01/14 to speed access to rehabilitation for persons who sustained minor injuries in auto accidents. A minor injury is defined as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequalae. A minor injury can include one or more of these injuries.
12According to the MIG, insured persons with pre-existing medical conditions that would prevent recovery from a minor injury if subject to the MIG, are required to provide compelling evidence of that condition together with the treatment plan. Further, the MIG also states that:
Only in extremely limited instances, where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition that was documented by a health professional before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons describe above, is the person’s impairment to be determined not to come within this Guideline. Exclusion of a person from this Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of SABS and this Guideline.
13Section 38(5) of the Schedule states:
An insurer may refuse to accept a treatment and assessment plan if the plan describes goods or services to be received, or an assessment or examination to be conducted in respect of any period during which the insured person is entitled to receive goods or services under the Minor Injury Guideline in respect of the impairment.
14Section 38(6) of the Schedule states:
An insurer’s refusal to accept a treatment and assessment plan under subsection (5) is final and is not subject to review.
15The operation of sections 38(5) and 38(6) of the Schedule is to limit disputes at the outset of a claim and ensure that accident victims receive timely treatment for their accident-related injuries and impairments. The access to treatment is timelier through the MIG because the goods and services are pre-approved, thus there is no requirement to get approval prior to starting the treatment.
16In the Applicant’s case, she provided no evidence indicating that she sustained an injury that is not a minor injury when she initiated her claim. The only injury listed in the Applicant’s application for benefits is “my concussion from before is worse”. Similarly, the treatment plan in dispute, completed by a physiotherapist, states that the Applicant’s injury and associated sequalae are: disorders of vestibular function, chronic post-traumatic headache, and “postconcussional syndrome”.
17Recent case law, in Marcelo v. Personal Insurance Co., 2026 ONSC 19 confirmed that a concussion is not a minor injury. However, the Applicant did not submit any medical evidence to confirm that she sustained a concussion in the subject accident. Similarly, the Applicant never provided compelling evidence from a healthcare professional demonstrating that she was recovering from a concussion at the time of the accident. The Applicant, who is not a healthcare provider, completed her application for accident benefits stating she was recovering from a concussion. The treatment plan in dispute was completed by a physiotherapist, who is qualified to diagnose a concussion, but does not include information demonstrating that the Applicant sustained a concussion in the accident, nor does it include additional documentation of same. There is no evidence before me indicating that the Applicant submitted any health records to the Respondent for review prior to June 27, 2023, about three months after the initial denial and request for information, and a month after an OCF-23 was submitted for pre-approved treatment.
18The Applicant suggests that the Respondent ought to have known of her concussion and concussion-related symptoms as a result of adjusting her April 20, 2022 claim. However, the Respondent is unable to use information from one claim to adjust the other claim without permission from the person. There is no indication that the Applicant authorized such use of her information.
19Even if the Respondent was permitted to use the information from the Applicant’s other claim, there was no opinion from a healthcare provider indicating that the Applicant would be unable to recover from the injuries sustained in this accident, as a result of her pre-existing condition. As outlined, simply having a pre-existing condition is insufficient to demonstrate that the Applicant’s case is one of the extremely limited circumstances where pre-existing conditions would preclude her recovery if subject to the MIG. Likewise, the information regarding the injuries sustained in the subject accident is limited and does not suggest that the Applicant would be unable to reach maximal recovery within the MIG. As noted, the injuries listed in the plan are predominantly minor injuries or are possible sequalae from the injuries sustained in the April 20, 2022 accident.
20I find nothing in the MIG that precludes a person from engaging in concussion treatment while subject to the MIG. The MIG provides for other interventions that facilitate pain management, activation and return to function. The MIG states that other interventions may include, but are not limited to, massage therapy, intervention for psycho-social issues, coping skills management, advice regarding hurt verses harm and maintaining active engagement. Thus, there is nothing in the MIG that precludes the Applicant from treating concussion symptoms under the MIG while she obtains the requisite information to demonstrate that she sustained a non-minor injury.
21I find that the information, or perceived lack thereof, in the denial letter dated March 23, 2023, does not entitle the Applicant to the plan in dispute. The Applicant takes the position that the Respondent is unable to apply section 38(5) of the Schedule because it did not expressly say it was relying on that section of the Schedule in the denial. There is no language in section 38(5) or 38(6) of the Schedule that indicates there is a requirement to advise the Applicant that it is relying on that particular section. This is different than in other areas, such as section 38(9), which states that reference to the MIG is a notice requirement. Moreover, it is clear from the letter that the Applicant is entitled to submit an OCF-23 and receive treatment under the MIG funding limit in the interim, yet she chose not to do so for a period of nearly two months. Similarly, the Respondent’s request for additional medical information relates to the Applicant’s claim, and whether she sustained a minor injury, not whether the plan is subject to review.
22Indeed, plans are regularly reviewed by insurers following a determination that a person is no longer subject to the MIG. However, the plans that are reviewed are the plans that were submitted for approval after engaging in treatment within the MIG – not before. In this case, the plan at issue was submitted prior to engaging in any treatment. Thus, the Respondent was within it’s right to refuse to accept the plan in dispute and require that the Applicant initiate treatment within the MIG.
23Accordingly, I find that the Applicant has not met her onus to demonstrate entitlement to the plan in dispute on a balance of probabilities.
Interest
24Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no payments went overdue and no interest is payable.
Award
25The applicant sought an award under section 10 of Regulation 664. Under section 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. Having found no benefits payable, it follows that no payments were unreasonably withheld or delayed. Accordingly, no award is payable.
CONCLUSION AND ORDER
26The plan in the amount of $1,765.76 dated March 23, 2023, was denied by operation of section 38(5) of the Schedule. The denial is not subject to review pursuant to section 38(6) of the Schedule.
27No interest or award is payable.
Released: April 24, 2026
Brian Norris
Vice-Chair