Licence Appeal Tribunal File Number: 24-014800/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:
Maiwand Safa
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Darya Katkouskya, Counsel
For the Respondent: Karina Dziuba, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Maiwand Safa, the applicant, was involved in an automobile accident on May 27, 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.
PRELIMINARY ISSUES
2The preliminary issue to be decided are:
i. Is the applicant barred from proceeding to a hearing for the following benefits: non-earner benefit (“NEB”); physiotherapy services for $2,152.71; and translation services for $539.00, because the applicant failed to dispute their denial within the two-year limitation period?
SUBSTANTIVE ISSUES
3The substantive issues in dispute are:
i. Is the applicant entitled to a NEB in the amount of $185.00 per week from June 25, 2022, to May 27, 2024?
ii. Is the applicant entitled to $2,152.71 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated August 24, 2022?
iii. Is the applicant entitled to $2,052.52 for physiotherapy services, proposed by 101 Physio in a plan submitted on December 21, 2022?
iv. Is the applicant entitled to $539.00 for translation services, proposed by 101 Assessments in a plan submitted on September 13, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant is statute-barred from proceeding with his claims for an NEB, physiotherapy services for $2,152.71 and translation services for $539.00.
5The applicant is not entitled to physiotherapy services for $2,052.52.
6The respondent’s denial of the OCF-18 dated December 13, 2022, was proper in accordance with s. 38(8) of the Schedule.
7No interest is payable.
8The respondent is not liable to pay an award to the applicant.
ANALYSIS
Preliminary Issues
9The preliminary issue to be decided is whether the applicant is barred under s.56 of the Schedule from proceeding to a hearing for an NEB, physiotherapy services for $2152.71 and translation services for $539.00 listed as issues 3 (i), 3 (ii), and 3 (iv), above because he failed to file an application with the Tribunal to dispute the denial of these benefits within the two-year limitation period.
10Under s. 56 of the Schedule, an applicant has two years after the insurer’s refusal to pay the amount claimed to dispute the denial. The limitation period is triggered by a clear, unequivocal denial in straightforward and clear language directed towards an unsophisticated person, as established in Smith v. Co-Operators General Insurance Company, 2002 SCC 30.
The applicant is statute-barred from pursuing his claim for an NEB
11I find that the respondent’s denial of the NEB claim was valid and triggered the s. 56 two-year limitation period.
12The applicant filed his application to the Tribunal on December 3, 2024, which is beyond the two-year limitation period from the date when the respondent first denied his entitlement to an NEB on July 12, 2022.
13However, section 7 of the Licence Appeal Tribunal Act, 1999, c. 12, Sched. G (LAT Act), affords the Tribunal statutory discretion to extend the limitation period prescribed by the Schedule if it is satisfied that there are reasonable grounds for granting such relief. In determining whether to grant an extension, the Tribunal examines four factors: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal. No one factor has precedence; ultimately, the “justice of the case” determines whether to grant this relief. See Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997 (Div. Ct) and Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act), 2012 ONSC 1492 (Div. Ct).
14The respondent argues that the applicant submitted an initial Application for Accident Benefits (“OCF-1”) signed by the applicant, and dated June 9, 2022, which indicated that he was unemployed, and a full-time student at the time of the accident, and he returned to his normal activities after the accident. The respondent provided an Explanation of Benefits (“EOB”) dated June 16, 2022, to the applicant, which indicates that based on his OCF-1 dated June 9, 2022 (incorrectly identified as June 9, 2011), he does not suffer a complete inability to carry on a normal life and includes a right to dispute notice.
15The respondent submits that on June 16, 2022, it received a second OCF-1 dated June 15, 2022, with contradictory information which indicated that the applicant was employed before the accident, and he is unable to return to his activities of normal living. The respondent further submits that on July 4, 2022 and July 14, 2022, it received a Disability Certificate (“OCF-3”) dated June 16, 2022, which indicated that the applicant’s symptoms began on April 27, 2022, which was before the accident; he was unemployed at the time of the accident; and he sustained a complete inability to carry on a normal life. It is noted that the OCF-3 also indicates that the applicant last worked after the accident on June 16, 2022, he was enrolled in an education program at the time of the accident, and he is able to return to his education program after the accident.
16The respondent submits that the limitation period was triggered by its initial denial dated June 16, 2022, which was a clear and unequivocal denial of the applicant’s NEB claim, and therefore, the limitation period ended on June 17, 2024. The respondent submits that it scheduled s. 44 assessments to address the applicant’s claim for an NEB because it had received contradictory information on the forms.
17In his reply to submissions, the applicant submits that he did not complete the OCF-1 dated June 9, 2022, and the respondent’s denial dated June 16, 2022 is invalid because it does not provide an effective denial date. He submits that the OCF-1 was completed by a clinic, and he does not agree with its contents. The applicant submits that after he retained legal representation, he submitted an OCF-1 dated June 15, 2022 to the respondent, in which he claimed an NEB. The applicant further submits that all discrepancies in the forms submitted to the respondent are a result of the applicant’s language barrier, and unfamiliarity with the accident benefits process. The applicant further submits that the July 12, 2022 denial is not a clear and unequivocal denial because the respondent stated it was unable to determine his eligibility for an NEB, and it scheduled IEs with Dr. Amena Syed, psychologist; Dr. Farshid Tabloic, orthopaedic surgeon; and Dawn Li, occupational therapist. The applicant submits that an NEB was not denied until December 13, 2022, when the respondent provided copies of the IE reports with a denial.
18The respondent argues that it provided a clear and unequivocal denial in the June 16, 2022, letter and right to dispute forms were provided. However, it is not clear whether the applicant applied for an NEB in the OCF-1 dated June 9, 2022, because he argues that the OCF-1 was sent in error without his knowledge
19I find that the respondent provided a clear and unequivocal denial in the July 12, 2022, letter in response to the applicant’s application for a NEB in his OCF-1 and OCF-3 dated June 16, 2022. I find that the July 12, 2022, letter provides specific details describing the applicant’s injuries and states that these injuries are not consistent with an inability to engage in substantially all his activities. As such, I find the respondent’s denial complied with the principles set out in Smith v. Co-operators. Further, I find that a denial may be legally incorrect but still trigger the limitation period, as stated in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111, at paragraph 13.
20After conducting s. 44 assessments, the respondent sent a subsequent letter dated December 13, 2022, stating that its assessors had determined that the applicant did not suffer a complete inability to carry on a normal life.
21Given that I have found that the respondent’s July 12, 2022, letter was a valid denial notice, the applicant was required to dispute the respondent’s denial within two years. The applicant files his application with the Tribunal on December 4, 2024, which is outside the s. 56 limitation period.
22The parties made no submissions regarding the delay or whether the Tribunal should exercise its jurisdiction to extend the limitation period under s.7 of the LAT Act. Given the lack of submissions regarding the four factors set out in Manuel v. Registrar to determine if the justice of the case requires the extension, I decline to exercise my discretion.
23I find that the applicant may not proceed with his claim for an NEB.
The applicant is statute-barred from proceeding with his claims for physiotherapy services and translations services
24I find that the respondent’s denial of the plan for physiotherapy services in the amount of $2,152.71, and for translation services in the amount of $539.00 were valid and triggered the s. 56 two-year limitation period.
25On August 24, 2022, the applicant submitted a treatment plan, dated August 23, 2022, in the amount of $2,152.71, for physiotherapy services, proposed by 101 Physio.
26On September 1, 2022, the respondent denied the treatment plan and advised the applicant it requires the findings of s. 44 assessments and additional medical documents to further determine whether it will fund the requested treatment.
27On September 13, 2022, the applicant submitted a treatment plan, dated August 18, 2022, in the amount of $539.00, for translation services, proposed by 101 Assessment Centre.
28On September 21, 2022, the respondent denied the treatment plan and advised the applicant it requires the findings of s. 44 assessments and additional medical documents to further determine whether it will fund the requested services.
29The respondent submits that the applicant did not dispute the denials of the plans listed in issues 3 (ii) and 3 (iv) within the two-year limitation period stipulated in s. 56 of the Schedule. The respondent further submits that the benefits in dispute in issues 3 (ii) and 3 (iv) were denied in clear and unequivocal denials.
30The applicant submits that he should be able to proceed to the substantive hearing. The applicant disputes that the application was brought outside the limitation period for all of the benefits claimed. He submits that in order for the two-year limitation in s. 56 to be triggered, the respondent must provide a proper notice of denial. The applicant submits that the respondent’s letters dated September 1, 2022 and September 21, 2022 were not proper denials because the respondent stated only that it was waiting for the results of s. 44 assessments before making a determination. The applicant submits that he received copies of the IE reports on December 13, 2022; however, the respondent did not provide a proper denial with the reports.
31I find the respondent’s notice letters dated September 1, 2022, and September 21, 2022 satisfied the basic requirements of Smith v. Co-operators as there were clear denials of the treatment plans in dispute. I find that the respondent provided straightforward and clear language in its notices, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decisions. I find these were clear and unequivocal denials. The applicant was provided with information regarding his right to appeal the decision within two years from the date of the denials. Section 56 does not require medical or any other reasons in order for the limitation period to begin.
32I find that the applicant failed to file his application within the two-year limitation, and therefore, he is statute-barred from applying to the Tribunal regarding the benefits listed as issues in paragraphs 3(ii) and 3 (iv) above.
Substantive Issues
The applicant is not entitled to the plan for physiotherapy services for $2,052.52
33I find that the applicant is not entitled to $2,052.52 for physiotherapy services.
34To 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.
35The treatment plan for physiotherapy services, dated December 13, 2022, was completed by Dr. Nilav Bhowmik, chiropractor, and sought funding for physical rehabilitation, acupuncture and massage therapy in the amount of $2,052.52. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion and return to activities of normal living.
36The applicant submits that the treatment plan for physical therapy services is reasonable and necessary to restore his pre-accident functioning.
37The respondent submits that the applicant has not met his onus to establish that the plan for physical rehabilitation is reasonable and necessary. The respondent relies on an IE report dated December 8, 2022, by Dr. Ewin Urovitz, orthopaedic surgeon, in which Dr. Urovitz diagnosed the applicant with soft tissue injuries. The respondent further submits that on November 25, 2022, the applicant reported to Dr. Amena Syed, psychologist that the physical rehabilitation he was receiving has provided no benefit in alleviating his symptoms.
38The applicant does not direct me to any evidence in support of his position, and instead, focuses on the respondent’s procedural errors made by the respondent and it is submitted that these procedural errors should result in a finding the disputed benefits are payable.
39I find that the applicant has not established on a balance of probabilities that the plan for physiotherapy services for $2,052.52 is reasonable and necessary.
Section 38(8)
40I find the respondent’s denial was sufficient in providing reasons that it has not received medical evidence in support of the reasonableness and necessity of the disputed plans.
41The applicant submits that the respondent’s denial is non-compliant with the Schedule for failing to provide a valid reason. The applicant submits since the respondent did not properly deny the disputed treatment plan, in accordance with s. 38(8) of the Schedule, there is no valid denial, and the treatment plan is payable pursuant to s. 38(11).
42Section 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 the other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
43If 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 if 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).
44The 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.
Sufficiency of the Respondent’s Denial of OCF-18 dated December 13, 2022
45The respondent wrote to the applicant on January 5, 2023, denying the benefits, within 10 business days of receiving the plan on December 21, 2022.
46The applicant submits that it was an improper denial because the respondent did not provide medical and other reasons for the denial. I find that the January 5, 2023, letter was a valid denial letter. It indicates that on the respondent’s review of the medical documents on file, it was unable to determine if the recommendations on the plan are reasonable and necessary, and it requires the results of an insurer’s examination in accordance with s. 44 of the Schedule.
47I find that the January 5, 2023, denial is compliant since the respondent provides a reason for the denial because it requires additional medical information and the results of IE reports to determine whether further treatment is reasonable and necessary. 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.
48Therefore, I find on a balance of probabilities that the applicant has not met his burden to establish that this plan is payable under section 38.
Interest
49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not payable.
Award
50The 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.
51The applicant submits that he is entitled to a special award for the following reasons:
a. the respondent did not properly assess his entitlement to benefits;
b. its assessors were neglectful or deliberately disregarded their own findings;
c. the respondent failed to provide proper denials of his benefits;
d. the respondent failed to properly advise him of his removal from the Minor Injury Guideline (“MIG”);
e. the respondent failed to reconsider his entitlement to the disputed plans after his removal from the MIG; and,
f. The respondent obtained surveillance rather than paying his benefits.
52The respondent submits that the applicant has not established that its conduct in handling his claim was excessive, imprudent or unyielding.
53I find an award is not appropriate because the applicant has not met his onus to explain how the respondent unreasonably withheld or delayed the payment of benefits. Thus, an award under s.10 of Reg. 664 is not warranted.
ORDER
54For the reasons set out above, I find that:
i. The applicant is statute-barred from proceeding with his claim for an NEB, physiotherapy services for $2,152.71 and translation services for $539.00.
ii. The applicant is not entitled to physiotherapy services for $2,052.52.
iii. The respondent’s denial of the OCF-18 dated December 13, 2022, was proper in accordance with s. 38(8) of the Schedule.
iv. Interest is not payable, and the respondent is not liable to pay an award.
v. The application is dismissed.
Released: May 28, 2026
Lisa Holland
Adjudicator