Citation: Kuganesan v. Jevco Insurance Company, 2026 ONLAT 24-005896/AABS

Licence Appeal Tribunal File Number: 24-005896/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:

Abishiga Kuganesan

Applicant

and

Jevco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Julia Logoutova, Paralegal

For the Respondent:

Brittany Landry, Counsel

HEARD: By way of written submissions

OVERVIEW

1Abishiga Kuganesan (“the Applicant”) was involved in an automobile accident on April 9, 2022, and sought benefits from Jevco 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 to be decided in the hearing are:

i. Are the applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to the medical benefits proposed by Aqua Wellness Centre Ltd. as follows:

(i) $3,801.05 for chiropractic and massage therapy treatment submitted by treatment plan dated August 2, 2022?

(ii) $3,786.05 for chiropractic and massage therapy treatment submitted by treatment plan dated August 26, 2022?

(iii) $3,381.05 for chiropractic and massage therapy treatment submitted by treatment plan dated November 4, 2022?

(iv) $2,616.05 for chiropractic and massage therapy treatment submitted by treatment plan dated February 28, 2024?

iii. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

4The Applicant has not demonstrated that she is entitled to the plans in dispute due to non-compliance with section 38(8) of the Schedule by the Respondent.

5The Applicant is not entitled to the plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit for a minor injury.

6No interest is payable.

BACKGROUND

7The Applicant was the driver of a vehicle which was struck while exiting a suburban parking lot. She sought no medical attention of the day of the accident but went to her family physician about three weeks later, on April 29, 2022. She was diagnosed with whiplash and referred for physiotherapy. The Applicant started chiropractic and massage therapy treatment at Aqua Wellness Rehabilitation clinic thereafter.

8The Applicant submitted no medical evidence to support her claim. Instead, she advances her claim for entitlement to the plans in dispute on a purely technical basis. She claims that the Respondent failed to comply with section 38(8) of the Schedule when it responded to the plans in dispute. To her, the Respondent’s insufficient denials entitle her to payment of the plans in dispute.

9The Respondent submits that het Applicant sustained a minor injury as a result of the accident. It submits that the denial it issued were proper and compliant with section 38(8) of the Schedule.

10For the following reasons, I agree with the Respondent and find that the Applicant has not met her onus to demonstrate entitlement to the plans in dispute.

ANALYSIS

11Section 38(8) of the Schedule provides that the Respondent must reply to a treatment and assessment plan within 10-busines days of receipt of that plan and provide all the medical and other reasons why it refuses to pay the benefit. Section 38(9) of the Schedule provides that the Respondent must also advise the Applicant if it believes that the MIG applies.

12Pursuant to section 38(11)1 of the Schedule, the Respondents failure to comply with section 38(8) and 38(9), preclude it from taking the position that the Applicant sustained an impairment to which the MIG applies, and it must pay for all goods and services incurred during the period starting on the 10^th business day and ending on the day a compliant notice is provided.

13For the following reasons, I find that the denials provided by the Respondent comply with the Schedule. Accordingly, I find that the Applicant has not met her onus to demonstrate entitlement to the plans based on the Respondent’s alleged non-compliance.

14I find that denial for the plan dated August 2, 2022 is compliant with the Schedule. The August 2, 2022 plan was denied on August 12, 2022. The letter identifies the denied plan by date, amount, and service provider. The letters describe a minor injury, that it includes one or more sprain and strain injuries, and compared that description with the information in the plans and the limited documents on file and concluded that the Applicant’s impairment is predominantly a minor injury. The letters also note that notice of insurer’s examinations (“IEs”) would follow. The letter is compliant with section 38(8) and 38(9) because it identifies the plans and unequivocally denies funding for them, provides the medical and other reasons for the denials, and confirms that it believes the MIG applies to the Applicant’s claim.

15I find that the fact that the Respondent did not list all the goods and services proposed in the plan does not upset my conclusion that the denial is compliant with section 38(8) and 38(9) of the Schedule. Indeed, the August 12, 2022 letter lists the goods and services in the plans as “Exercise, multiple body sites etc. (as outlined in part 12 of the Treatment and assessment Plan) in the amount of $3,801.05.” There is no requirement in the Schedule for the Respondent to list all the goods and services proposed in the plan. Instead, it must identify the goods and services it agrees to pay for and those that it does not agree to pay for. In this scenario, it advised that it was not paying for the entire plan, so listing each service in the plan is unnecessary. Thus, I find this characterization of the goods and services to by insufficient to upset overall message of the letter, that the plan is not approved, and that the Respondent believes that the Applicant is subject to the MIG.

16I find that the denial for the plan dated August 26, 2022 is complaint with the Schedule. The August 26, 2022 plan was denied by letter, dated September 12, 2022. In that letter, the Respondent identified the plan by date, amount, and service provider. The letter describes a minor injury and advises the Applicant that it believes her injuries are subject to the MIG. The letter notes a lack of evidence supporting a more serious impairment and requests additional information, such as clinical notes and records form the Applicant’s family physician, as well as any hospitals or specialists attended since April 9, 2021 to the date of the letter. The letter is compliant with section 38(8) and 38(9) of the Schedule because it identifies the plan and unequivocally denies funding for it, provides the medical and other reasons for the denials, and confirms that it believes the MIG applies to the Applicant’s claim.

17I find that the denial for the plan dated November 4, 2022 is compliant with the Schedule. The November 4, 2022 plan was denied by letter dated November 21, 2022. In that letter, the Respondent identified the plan by date, amount, and service provider. The letter describes a minor injury and advises the Applicant that it determined that her injuries are a minor injury based on the medical documents provided compared to the criteria in the minor injury definition. The letter is compliant with section 38(8) and 38(9) of the Schedule because it identifies the plan and unequivocally denies funding for it, provides the medical and other reasons for the denials, and confirms that it believes the MIG applies to the Applicant’s claim.

18I find that the denial for the plan dated February 28, 2023 is compliant with the Schedule. The February 28, 2022 plan was denied by letter, dated March 13, 2024. In that letter, the Respondent identified the plan by the service provider and the amount. It referred to the date of the plan to be February 29, instead of February 28, but I find that this minor typographical error is not of a magnitude to upset the overall clarity of the message of the letter. The letter reiterates the minor injury definition and that a review of the information on file, the Applicant’s injuries are a minor injury. The letter refers to letters sent on July 18, 2022 and September 12, 2022, which requested additional information to confirm an injury that is not a minor injury, and confirmed that no compelling medical notes and records had been received to-date. The letter is compliant with section 38(8) and 38(9) of the Schedule because it identifies the plan and unequivocally denies funding for it, provides the medical and other reasons for the denials, and confirms that it believes the MIG applies to the Applicant’s claim.

19Overall, the Applicant provided no evidence to the Respondent to indicate that she sustained an injury that is not a minor injury. The treatment plans submitted on her behalf list sprain and strain injuries consistent with a minor injury. The Respondent’s denial letters consistently advise the Applicant that her injuries reported match the definition of a minor injury. The Respondent cannot give additional medical reasons because the Applicant never provided any other information for the Respondent to address.

20Having found that the Applicant has not demonstrated that the Respondent failed to comply with section 38(8) of the Schedule, and that the Applicant led no evidence and made no submissions on whether her injuries are anything other than a minor injury, it follows that I conclude that the Applicant sustained a minor injury as a result of the accident.

21The Applicant is not entitled to the treatment plans in dispute because they propose goods and services that fall outside of the MIG and the $3,500.00 funding limit for a minor injury.

Interest

22Interest 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.

CONclusion and ORDER

23The Applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

24The Applicant has not demonstrated that she is entitled to the plans in dispute due to non-compliance with section 38(8) of the Schedule by the Respondent.

25The Applicant is not entitled to the plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit for a minor injury.

26No interest is payable.

27The Application is dismissed.