Licence Appeal Tribunal File Number: 23-014374/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:
Jason Richard Stone
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR: Stephen Rotstein
APPEARANCES:
For the Applicant: Rakesh Sharma, Counsel
For the Respondent: Cody Moskovitz, Counsel
HEARD: In Writing
OVERVIEW
1Jason Richard Stone, the applicant, was involved in an automobile accident on June 26, 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, 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 $4,149.56 for physiotherapy services proposed by Total Recovery Rehab Centre in a treatment plan dated October 25, 2022?
iii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated November 11, 2022?
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
3I find that the applicant sustained a minor injury which is subject to treatment within the MIG.
4The applicant is not entitled to the OCF-18 for physiotherapy treatment in the amount of $4,149.56 or the OCF-18 for $2,200.00 for a psychological assessment.
5The applicant is not entitled to interest.
6The applicant is not entitled to an award,
PROCEDURAL ISSUE
Section 54 of the Schedule
7Section 54 of the Schedule provides that if an insurer refuses to pay a benefit or reduces the amount of a benefit that a person is receiving, the insurer shall provide the person with a written notice advising the person of his or her right to dispute the refusal or reduction.
8The applicant in their submissions refers to s. 54 of the Schedule. They submit that they do not have the onus to disprove the case made out by the respondent that is not based on the denial reasons provided to the applicant under s. 54 of the Schedule.
9In case before me, the applicant is arguing that the respondent is not permitted to make new submissions in this written hearing that were not specified in the respondent’s denial letters for the benefits in dispute. The applicant has not directed me to any authority, nor has he cited Tribunal caselaw to support this interpretation. I do not read s. 54 of the Schedule to hold that the respondent in a hearing before the Tribunal can only make submissions based on its denial letters or that it is not permitted to make new submissions. Instead, s. 54 states that an insurer shall provide a clear and unequivocal denial letter and advise the insured of their right to dispute the refusal. In my view, s. 54 does not limit the respondent’s right to make submissions at a hearing or that its submissions are confined to those contained in a denial letter.
10I find in this case that the respondent complied with s. 54 of Schedule by providing the applicant with a clear and unequivocal denial. The denial letter also stated that the applicant has the right to dispute the denials, as required by s. 54. I do not find that s. 54 places any restriction on how the respondent presents its case at a hearing.
ANALYSIS
The Minor Injury Guideline
11I find the applicant sustained a minor injury as defined by the Schedule as a result of the accident and is therefore subject to the $3,500.00 MIG funding limit on treatment.
12Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor 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.”
13An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG.
14The applicant did not provide specific submissions on his accident-related impairments, or on which ground they sought removal from the MIG. The applicant’s submissions state that the statutory requirement to make a claim for medical and rehabilitation benefits other than those payable under the MIG, is to be compliant with s. 38(3) of the Schedule, which sets out the requirements of a treatment and assessment plan. The applicant argues that the completed treatment and assessment plan (OCF-18) is deemed to be reasonable for costs and necessary for rehabilitation and that it is the insurer’s obligation to respond within 10 days of receipt of the OCF-18 and give notice of the goods and services it agrees to pay, does not agree to pay and medical reasons and all other reasons as to why the insurer considered it not reasonable and necessary. The applicant argues that in order for these denial notices under s. 54 of the Schedule to be valid, the respondent must comply with the provisions of s. 38(8) of the Schedule and provide medical and all other reasons as to why the goods and services are not reasonable and necessary.
15The applicant submits that if the treatment plans submitted comply with s. 38(3), their onus is only to disprove on a balance of probabilities the denial reasons served upon the applicant in the notice under s. 54 of the Schedule, in order to prove entitlement to the denied treatment plans and be removed from the MIG.
16In this case applicant submits that the treatment plans submitted comply with s. 38(3) and then sets out the reasons they believe the denial notices do not comply with s. 38(8) of the Schedule. They further argue that there is no statutory requirement under s. 38 of the Schedule to include any other medical records to the submitted treatment plan in support of the proposed treatment.
17The respondent argues that the applicant has not discharged their onus of proving non-minor injuries as a result of the accident. The respondent relies on the s. 44 assessment done by Orthopaedic Surgeon Dr. Farshid Tabloie which noted in the report dated February 6, 2024, that the physical examination of the applicant’s cervical, thoracic and lumbar spine all revealed normal alignment and full range of motion. Dr. Tabloie concluded, from an orthopaedic perspective, the applicant did not sustain any significant musculoskeletal injuries beyond myofascial pain and strain type of injury. Dr. Tabloie’s report concluded the applicant’s injuries meet the criteria of a “minor injury” as described in the MIG.
18The respondent also relies on the s. 44 psychological assessment done by Psychologist Dr. Amena Syed. Dr. Syed noted in a report dated February 6, 2024, that the applicant’s condition appears to have improved with the natural progression of time. Dr Syed noted the applicant does not appear to be significantly impaired psychologically as there are minimal indications that he may have current or active depressive or anxiogenic experiences. He concluded the applicant is not suffering from any psychological impairment that would warrant a diagnosis as per DSM5 as result of the subject accident. Dr Syed noted that the applicant’s injuries resulting from the accident meet the criteria of a minor injury as described in the MIG.
19The respondent also submits that the applicant has not provided any evidence from a health care practitioner that shows he suffers from pre-existing injury that prevents him from achieving maximum medical recovery if restricted to the MIG. The respondent argues that based on s. 18(2), if there is no evidence or medical opinion to support the applicant will not reach maximal medical recovery if restricted to the MIG benefits, MIG must apply.
20The applicant bears the onus of proving that his accident-related impairments warrant removal from the MIG. Without specific submissions as to what ground he sought removal from the MIG, and without being directed to medical evidence establishing non-minor impairments, I find that the applicant has not discharged his onus.
21As noted above, s. 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 days of receiving it by identifying the goods and services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide the medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
22If 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 an 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 if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred 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).
23In this case I find that the applicant has not met his onus of proving that his accident-related injuries warrant removal from the MIG. I am not persuaded by the applicant’s position that his only requirement is to prove that the respondent’s denial notices are not compliant with s. 38(8) of the Schedule. This is not the appropriate test to establish removal from the MIG. It is well settled that the applicant is required to submit evidence and make submissions to support that his injuries fall outside of the MIG (See: Scarlett v. Belair Insurance, 2015 ONSC 3635 (Div. Ct)). The consequence of s. 38(11)(1), is that if proper notice is not provided, the insurer cannot take the position that the applicant has an impairment to which the MIG applies to deny the treatment plan. An improper denial of a treatment plan does not mean that an applicant is then automatically removed from the MIG for the duration of their claim.
24In this case the applicant has made a general reference to chronic pain and a psychological condition as the reasons for removal from the MIG. However, he did not provide specifics of what the chronic pain or psychological condition experienced by the applicant. Rather, he has provided the two treatment plans in dispute and set out the reasons why he believes that the respondent’s denial notices were not compliant with s. 38(8) of the Schedule. The Tribunal has consistently found that a treatment plan itself is not sufficient medical evidence to prove entitlement, as contemporaneous corroborating medical evidence and submissions are required to support entitlement to medical benefits and removal from the MIG. I find that other than the two treatment plans submitted by the applicant, no further medical evidence has been submitted or relied upon by the applicant.
25The applicant simply submits that the OCF-18 was completed by a regulated health professional, physiotherapist Mr. Ahmed Afifi, dated October 25, 2022 who checked the box stating that the injuries sustained in the motor vehicle accident (‘MVA”) are predominately not minor injuries. Dr. Afifi comments that the applicant has significant limitations due mainly to low back pain and radiating pain.
26The applicant further relies on Dr. Afifi’s OCF-18 notes that the applicant has a well documented history of lumbar disc dysfunction that was made worse by the MVA and therefore concludes the applicant will require treatment outside the MIG in order to continue to make progress and return to work.
27The applicant also relies on an OCF-18 completed by Dr. Bruce Cook for a psychological assessment. In the OCF-18 Dr Cook checks the box stating that the injuries sustained in the MVA are predominately not minor injuries, and the injuries listed in the OCF-18 are: post traumatic stress disorder and moderate depressive episodes. Under goal and evaluation the OCF-18 states in depth clinical interviews will be conducted together with administration of various inventories to determine the presence of and extent of psychological impairment.
28I find that other than these two treatment plans the applicant has not provided medical evidence to support or corroborate the applicant’s impairments. The applicant has not made any specific submissions as to chronic pain, or ongoing psychological issues. The applicant’s reliance on the treatment plans is not sufficient evidence that he has ongoing pain with a corresponding functional impairment or a psychological impairment as a result of the accident. Further the respondent has provided s. 44 assessments which find that the applicant’s injuries are minor, and fall within the MIG. Therefore, I do not find that the applicant suffers from accident-related impairments that would warrant removal from the MIG.
29For the reasons outlined above, I find on a balance of probabilities, that the applicant does not suffer from a psychological condition or a chronic pain condition as a result of the accident and therefore he is not removed from the MIG on this basis.
Entitlement to Treatment Plans in Dispute
30Given that I have found that the applicant’s accident-related impairments do not warrant removal from the MIG, it is not necessary for me to determine the reasonableness and necessity of the treatment plans.
31I will still need to address the applicant’s submissions that the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule, since the applicant argued that the respondent did not comply with the notice requirements of s. 38(8) of the Schedule.
Denial of the Treatment Plan for physiotherapy services in the amount of $4,149.56
32I find the respondent did comply with the notice requirements of s. 38(8) of the Schedule and therefore the OCF-18 for physiotherapy services is not payable pursuant to s. 38(11).
33In the denial letter dated November 22, 2022, the respondent denied the treatment plan on the basis that the applicant sustained a minor injury as a result of the accident and treatment for those rest within the limits provided. It states “(a)t this time, we wish to advise that your approved treatment under the Minor Injury Guideline as exhausted. The maximum amount of medical and rehab available within minor injury is $3500. Please note that all treatment amounts fall within the limitation. This amount is inclusive of treatment received with Minor Injury Guideline”.
34The denial letter further stated that the respondent did not have compelling medical evidence of a non-minor impairment. As stated “(p)lease have your health practitioner provide us with compelling medical evidence of a pre-existing condition which has been documented before the accident or injury that would prevent you from achieving maximum medical recovery within $3500 allotted to a minor injury”
35The applicant submits that the respondent’s reasons do not qualify as a medical reason as they fail to make a comparison of the injuries stated/information provided with the MIG definition and how the injuries stated under part 6 of the OCF-18 would fall within the definition of a minor injury. The applicant also claims the respondent’s adjuster is not a regulated health professional and therefore is not competent/qualified to render a medical opinion except to make a comparison of the listed injuries under part 6 of the OCF-18 with the statutory definition of a minor injury under the Schedule.
36The applicant further submits that the response is boilerplate, and it ignored the information under Part 4 and 7 of the treatment plan which states he has no-pre-existing injury.
37I find that the November 22, 2022 letter as a valid denial. I do not agree that the notice was a boilerplate denial or that the adjuster was not qualified to make that assessment. I find that the EOB identified the treatment plan in dispute and specifies that it is not payable because the applicant’s injuries are minor and can be treated within the MIG. The reference to the applicant’s standing within the MIG and the fact that the applicant sustained a “minor injury” is a medical reason for the purposes of s. 38(8). The denial further notes that the respondent has not received compelling evidence to indicate that the applicant’s injuries warrant removal from the MIG and further invites the applicant to provide medical evidence in support that his injuries are not minor.
38I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons, it does not render the notice invalid.
39For the reasons outlined above, I find on a balance of probabilities, that the applicant has not met his burden of proving that this treatment plan for physiotherapy services is payable under s. 38(11) of the Schedule.
Denial of Psychological Assessment of $2,200.00
40I find that applicant has not proven, on a balance of probabilities, that the respondent was non-compliant with the notice requirements of s. 38(8) of the Schedule and therefore the OCF-18 for a psychological assessment dated November 11, 2022 is not payable pursuant to s. 38(11).
41The respondent claims that denial was based on the two s. 44 insurer reports dated February 6, 2024 of Dr. Syed and Dr. Tabloie. With respect to Dr. Syed’s report, the applicant claims that the examination is statutorily deficient as it refers to the information about a pre screening report attached to the OCF 18 but fails to compare administrative test resulting with the information/diagnosis of post traumatic stress disorder and moderate depressive episodes in the pre- screen report to see if the OCF 18 for psychological assessment is reasonable and necessary. The applicant further states Dr. Syed does not make any comparison with the information in the OCF-18 to make a determination if the proposed assessment is reasonable and necessary.
42The applicant further states that since the OCF-18 submitted is in compliance with s. 38(3) of the Schedule, it is deemed to be reasonable and necessary as the first option available under s.38(8) is to give notice of goods and services the insurer agrees to pay.
43Unlike the denial letter provided with respect to physiotherapy plan, the applicant has not provided in their in their evidence a denial letter from the respondent with respect to the psychological assessment. Nor did the submissions refer to a specific denial letter for this plan, or specify the language that the applicant claimed was non-compliant with s. 38(8) which would follow from their argument that the respondent was non-complaint with s. 38(8). Since the applicant did not provide details of the language used in the denial letter, or a copy of the denial letter itself, the applicant has not met his onus to prove that the denial was non-compliant with s. 38(8) or that the OCF-18 is payable under s. 38(11).
44For the reasons outlined above, I find on a balance of probabilities, that the applicant has not met his burden of proving that the treatment plan for a psychological assessment is payable under s. 38(11) of the Schedule.
Interest
45Interest applies to payments of any overdue benefits pursuant to s. 51 of the Schedule. As no overdue payment of benefits is owing to the applicant, no interest is payable.
Award
46The 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.
47Since I have found that no payment of benefits is owing, and there is no evidence before me to suggest that the respondent unreasonably withheld or delayed the payment of any benefits, I find that the respondent did not unreasonably withhold or delay the payment of benefits. The respondent is not liable to pay an award under s. 10 of Reg. 664.
ORDER
48For the reasons outlined above, I find:
i. The applicant’s injuries are “minor injuries” as defined in the Schedule and he remains within the MIG;
ii. The applicant is not entitled to the treatment plans in dispute.
iii. As no benefits are owing, the applicant is not entitled to interest or an award.
Released: January 19, 2026
Stephen Rotstein
Vice-Chair