Licence Appeal Tribunal File Number: 24-012835/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
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Julia Logoutova, Paralegal
For the Respondent:
Mark Esteireiro, Paralegal
HEARD: In Writing
OVERVIEW
1Daniel Mekonen, the applicant, was involved in an automobile accident on November 3, 2022, 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, Unifund 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 $3,861.20 for physiotherapy proposed by Aqua Wellness in a treatment plan/OCF-18 dated June 6, 2023?
RESULT
3The applicant is held to the Minor Injury Guideline, and the $3,500 treatment limit applies.
4As the applicant is in the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary.
5The disputed treatment plan is not payable pursuant to s. 38 of the Schedule..
ANALYSIS
Is the applicant removed from the Minor Injury Guideline?
6The applicant has not demonstrated he should be removed from the MIG.
7Section 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.”
8An 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.
9The applicant has not made an argument for removal from the MIG on the basis of having a non-minor injury or that he has a pre-existing condition which precludes maximal recovery if he were to be held to the MIG. Instead, the applicant has chosen to focus their argument on an alleged violation of s. 38(8) of the Schedule by the respondent.
10The consequences of s. 38(11) relate directly to the insurer’s failure to fulfill the statutory requirements of s. 38(8). The insurer is no longer able to take the position that the impairment falls within the MIG and must pay for costs under the Treatment Plan in question until a compliant notice is given. This ensures that the insured who receives a non-compliant notice can proceed to obtain treatment with the assurance that his costs will be covered. It is worth noting, however, that the language used ins. 38(11) refers to the specific Treatment Plan in question and does not impose a permanent prohibition with respect to whether the impairment is covered by the MIG.
11As the applicant has chosen not to argue removal from the MIG on a substantive basis, I find the applicant has not, on the balance of probabilities, established that he should be removed from the MIG.
12As the applicant is in the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary.
13I shall now turn to the s.38(8) arguments.
Is the applicant entitled to the treatment plan in dispute because the respondent is not compliant with Section 38(8) of the Schedule?
14The applicant has not demonstrated that the respondent is not compliant with s. 38(8) of the Schedule, and therefore, the treatment plan in dispute is not payable under s. 38(11).
15A violation of s.38(8) is covered in s.38(11), where the Schedule says “If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
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).
16The applicant argues that the insurer has violated s. 38(8) because it does not provide a reference to the insured’s medical condition. The applicant argues that according to T.F. v. Peel Mutual Insurance Company, 2018, the insurance company has an obligation to provide specific details about the applicant’s condition forming the basis for the insurer’s decision, or alternatively, identify information about the insured’s condition that the insurer does not have but requires.
17The respondent argues that its notice was, in fact, compliant with s. 38(8). It refers to the longstanding practice at the Tribunal which recognizes the MIG as a valid medical reason for a denial.
18I have reviewed the denial letter sent by the respondent to the applicant, dated June 19, 2023. I find the letter does comply with s. 38(8).
19The letter clearly identifies the treatment plan and treatment provider in dispute and identifies that the respondent does not agree to pay for any of it. In its explanation, the respondent clearly identifies that it believes the applicant’s injuries are minor, and it has not been presented with objective medical evidence that the injuries are beyond minor in nature, nor has it been presented with evidence that indicates a pre-existing condition will preclude recovery under the MIG.
20I agree that referring to the Minor Injury Guideline does indeed qualify as a medical or any other reason for the purposes of s. 38(8) of the Schedule and it is also a requirement for compliance with s. 38(9).
21As such, I find this letter complies with section 38(8).
22Furthermore, as I noted in paragraph 10, a violation of 38(8) does not remove a candidate from the MIG but merely allows entitlement to a specific treatment plan. The applicant remains in the MIG. As the applicant is being held to the MIG, it is not necessary to review if the treatment plans are reasonable and necessary.
23In summary, as I have found that the denial letter sent to the applicant does comply with s. 38(8), I find that the applicant has not, on the balance of probabilities, demonstrated that the treatment plan is payable pursuant to s. 38 of the Schedule.
ORDER
24The application is dismissed.
i. The applicant is being held to the MIG.
ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary.
iii. The treatment plan in dispute is not payable pursuant to s.38 of the Schedule.
Released: April 24, 2026
Jeff Chatterton
Adjudicator