Licence Appeal Tribunal File Number: 24-004755/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 Ghobrial
Applicant
and
TD Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Shahzad Ayub, Counsel
For the Respondent:
Ryan Bowes, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Daniel Ghobrial, the applicant, was involved in an automobile accident on August 29, 2021, 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 Home and Auto 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 limit?
ii. Is the applicant entitled to $2,200.00 for psychological services, proposed by Sarvin Sabet Psychological Services in a treatment plan dated April 13, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG. The applicant is not entitled to the treatment plan for a psychological assessment dated April 13, 2022, interest or an award.
PRODEDURAL ISSUE
4The applicant has attached Tab R to his initial submissions which provides further submissions and analysis of the issues in dispute. The respondent submits that by doing so, the applicant has exceeded the page limits and attempted to circumvent the filing requirements as ordered in the Case Conference Report and Order (“CCRO”) dated September 3, 2024. As a result of this breach, the respondent submits that the Tribunal has the discretion to exclude the applicant’s submissions in full or in part.
5The applicant has not provided any response in his reply to the respondent’s submissions in this regard.
6I agree with the respondent that the CCRO sets out that the hearing adjudicator may choose not to consider submissions which exceed the page limits and that it is subject to my discretion. Pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, it is within my discretion to strike any submissions in excess of the ten-page limit set out in the CCRO.
7I find that the CCRO orders that the applicant’s submissions are to be ten pages in length. The applicant’s substantive submissions are five pages in length. In addition, the applicant has set out his analysis in a chart at Tab R which is three pages in length and at Exhibit 1 which is three pages in length. In total the applicant’s submissions are 11 pages in length. I find that the submissions and arguments in Tab R and Exhibit 1 should have been included in the applicant’s substantive submissions and not as attachments. However, the respondent has not led any evidence to establish that it would be prejudiced as a result of the one extra page of submissions or the format of the applicant’s submissions. In contrast, excluding the applicant’s submissions at Tab R and Exhibit 1, would limit his ability to participate in these proceedings and argue his position with respect to the issues in dispute. Given the severity of the potential prejudice to the applicant if I were to exclude Tab R and Exhibit 1, I decline the respondent’s request to strike any of the applicant’s submissions and will consider them in their entirety.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
8I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.
9Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
10An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.
11I find that the applicant’s submissions do not address whether he sustained a minor injury, and no medical evidence has been submitted in support of his removal from the MIG. Rather, the applicant submits that the disposition of this issue is comprised of an analysis of the respondent’s s. 38(8) and 44(5) notices issued in respect of the treatment plan in dispute dated April 13, 2022. The applicant argues that by failing to comply with s. 38(8) in denying the treatment plan, the MIG remedy is triggered, and the respondent is prohibited from applying the MIG. He submits that he should therefore be removed from the MIG because the notices are deficient.
12I find that based on the Divisional Court decision in Zheng, Cai v. Aviva Insurance Company, 2018 ONSC 5707, which I am bound by, the consequences of s. 38(11) of the Schedule only apply to the specific treatment plan in dispute, and an improper denial does not result in an applicant being removed from the MIG generally. The Divisional Court held at paragraph 21:
The Adjudicator’s actual orders do not go beyond the Treatment Plans at issue. Further, the language used in s. 38 refers to the specific Treatment Plan in question. We therefore do not accept the submission, in these cases, that s. 38(11) imposes a permanent prohibition on Aviva with respect to whether the impairment of the Respondents is covered by the MIG or is subject to the $3,500 limit in s. 18(1).
13I therefore do not accept the applicant’s submissions that s. 38(11) imposes a permanent prohibition on the respondent with respect to whether the applicant’s impairments are MIG or are subject to the $3,500.00 limit in s. 18(1) of the Schedule. As the applicant has not provided any further submissions or medical evidence to support his removal from the MIG, I find that he has not met his onus of proving on a balance of probabilities that his accident-related injuries warrant removal from the MIG.
Entitlement to the treatment plan for a psychological assessment
14Having found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG, it is unnecessary for me to consider the reasonableness and necessity of the treatment plan for a psychological assessment dated April 13, 2022.
15I will therefore address the applicant’s submissions that the treatment plan is payable pursuant to s. 38(8) and s. 44(5) of the Schedule, as the respondent did not comply with the notice requirements of the Schedule.
Compliance with s. 44(5) of the Schedule
16While the applicant argues that the respondent’s alleged failure to comply with s. 44(5) of the Schedule triggers s. 38(11), I do not agree. The applicant has not explained how the respondent’s alleged failure to comply with s. 44(5) triggers s. 38(11). In my view, the wording of s. 38(11) is clear; this section is triggered with respect to deficient notice given in accordance with s. 38(8). A non-compliant s. 44 notice under s. 44(5) does not trigger the consequences of s. 38(11) because it is not a notice “in accordance with” s. 38(8). The remedies available to an insured person for a non-compliant s. 44 notice under s. 44(5) may include not attending the IE or attending the IE under protest. Contrary to the applicant’s argument, there is no consequence in the Schedule that the insurer is not entitled to rely on the IE report prepared pursuant to a s. 44 notice that was non-compliant with s.44(5), when denying a benefit under s. 38(8).
17Therefore, for the reasons outlined above, I will consider only whether the notices denying benefits complied with s. 38(8) and if not, what consequences are triggered under s. 38(11).
The respondent’s denial is compliant with s. 38(8) of the Schedule
18Section 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 any other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
19If 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 denials is prohibited by s. 38(11) from taking the position that the insurer 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 related 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).
20In response to the treatment plan dated April 13, 2022, the respondent provided a denial letter dated April 14, 2022 which states the following:
We have received the Treatment and Assessment Plan (OCF-18) submitted by Sarvin Sabet Psychological Services dated April 13, 2022. We do not agree to pay for any of the following goods, services and/or assessments for medical reasons and all other reasons known as of the date of this notice as follows:
Given the injuries sustained in the accident as outlined in the OCF-23 are mainly whiplash associated disorder, sprain and strain of lumbar & thoracic spine that are predominantly minor injuries in nature as defined in the Statutory Accident Benefits Schedule.
In order to determine if the above goods, services and/or assessments are reasonable and necessary for your treatment and rehabilitation, you are required to be examined by an assessors chosen by the insurer. A notice will follow under a separate cover with further information regarding your obligation for participating in the examination.
21By letter dated April 18, 2022, the respondent provided details of the s. 44 assessments scheduled, including the date, time, location, assessor name and assessor designation. The purpose of the assessments were listed as MIG determination and medical and rehabilitation benefits.
22The applicant submits that the respondent failed to comply with the notice requirements pursuant to s. 38(8) of the Schedule in denying the April 13, 2022 treatment plan. The applicant submits that the respondent in its denial notice dated April 14, 2022, provided no specific and/or meaningful details regarding the applicant or related to his medical history or expressly related to the psychological assessment proposed in the treatment plan. The applicant further submits that the respondent did not consider any of the clinical information for supporting a psychological assessment that was indicated in the pre-screen report. The applicant argues that the respondent’s reliance on the injuries listed in the OCF-23 was inconsistent with s. 38(8) because the health practitioner who prepared the OCF-23 was not qualified to opine on the presence of a psychological injury and a psychological injury could take many months or years to manifest.
23The respondent submits that it complied with s. 38(8) of the Schedule and its denial was valid. It submits that the denial letter was statutorily compliant, as it notes the applicant’s injuries as reported in the OCF-23 and their relation to the MIG and the proposed assessment. The respondent notes that there was no mention of a psychological impairment until the submission of the treatment plan in dispute which justified its request for a s. 44 psychological assessment to assess the reasonableness and necessity of the proposed assessment as well as the applicant’s overall MIG entitlement.
24I find that the April 14, 2022 denial letter was a valid denial. In determining whether an insurer’s denial is compliant with s. 38(8) of the Schedule, the analysis is not whether the denial is correct, but whether the notice meets the standard outlined in s. 38(8). I find that the notice provided specific and meaningful details regarding the applicant and his medical history. I find that the letter identified the treatment plan in dispute and specifies that it is not payable because the applicant’s injuries are minor. It refers to the OCF-23 and the specific injuries listed. Therefore, it was reasonable for the respondent to request that the applicant attend an IE to determine if the treatment plan for a psychological assessment is reasonable and necessary.
25I 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.
26Having concluded that the respondent complied with its obligations outlined in s. 38(8), I find that the applicant has not met his burden of proving that the treatment plan for a psychological assessment dated April 13, 2022 is payable.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
28The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.
ORDER
29For the reasons outlined above, I find:
i. The applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plan for a psychological assessment dated April 13, 2022;
iii. The applicant is not entitled to interest;
iv. The respondent is not required to pay an award; and
v. The application is dismissed.
Released: January 28, 2026
Melanie Malach
Adjudicator