Licence Appeal Tribunal

Citation: M.L. v. Zenith Insurance Company, 2020 CanLII 34474 Released Date: 04/03/2020 File Number: 19-002259/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:

M. L. Applicant

and

Zenith Insurance Company Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Mitchell Kent, Paralegal

For the Respondent: Jonathan Heeney, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, M.L., was involved in an automobile accident on August 18, 2017, (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). This dispute focuses on the respondent’s, Zenith, denial of M.L.’s entitlement to medical benefits.

2M.L. submits that, as a result of injuries she sustained in the accident, the treatment she seeks is reasonable and necessary.

3Zenith argues that M.L. has not established that the treatment plans are reasonable and necessary.

DISCUSSION - Section 38 compliance

The Parties Positions

4M.Z. submits that the following treatment plans should be approved because Zenith failed to comply with s. 38(8) of the Schedule:

a. Is the medical benefit submitted on June 1, 2018 and denied on July 7, 2018 payable?

b. Is the medical benefit submitted on June 7, 2018, and denied on July 9, 2018, payable?

c. Is the cost of an examination expense recommended submitted on October 2, 2018 and denied on October 18, 2018, payable?

5Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans, with specific consequences if they fail to comply. Under s. 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary. As per s. 38(11), if an insurer fails to comply with these requirements, it is prohibited from taking the position that the MIG applies and must pay for any treatment expenses until such time that it gives proper notice.

6M.L. contends that the above denials were beyond the 10-day limit imposed by s. 38. M.L. submits that the denial of June 1 OCF-18 was denied approximately 15 days late, the June 7 OCF-18 was denied 11 days late, and the October 2 OCF-18 was denied one day late.

7Zenith contends that the denials did not comply with s. 38(8). Zenith submits that M.Z. mistakenly relies on the date the OCF-18s were completed, not the dates they were submitted. For example:

a. the June 1 OCF-18 was submitted on June 28, 2018, denied on July 7, thus, the denial was in 5 days;

b. The June 7 OCF-18 was submitted on June 27, 2018, denied on July 9, thus, the denial being 7 days later; and

c. The October 2 OCF, submitted on October 5, denied on October 18, was therefore denied 8 days later.

8I find that all three denials were within the 10-day limitation period prescribed by the Schedule. For these reasons, I find that Zenith complied with s. 38(8), and the OCF-18s are not payable in accordance with s. 38(11) of the Schedule.

Tribunal Order non-compliance

9Zenith submits that M.Z. is in non-compliance with the Tribunal Order dated June 19, 2019. That Order, which the Tribunal issued in the parties’ consent, states as follows:

the applicant shall provide the respondent with the following by August 22, 2019:

a) Clinical notes and records of the family physician from three years pre-accident to date

b) Decoded OHIP summary from three years pre-accident to date.

c) Prescription summaries from three years pre-accident to date

d) Updated GWL Extended Health Benefits file

e) Complete psychological and counselling records

f) Complete copy of any medical report prepared for the applicant with respect to this accident including any defence medical reports in relation to the applicant’s tort claim, should it exist.

10Despite this, Zenith did not request a specific remedy, nor did it bring a motion to compel production. I draw an adverse inference from M.Z.’s failure to produce the above list of documents. In the complete absence of any explanation for this failure, I conclude that either these documents do not exist, or they do not support M.Z.’s position. Therefore, my finding will be based on the evidence put before me.

ISSUES

11The issues I must determine are as follows:

i. Is the medical benefit in the amount of $3,875.30 for physiotherapy treatment recommended by Midland Wellness in a treatment plan (OCF-18) submitted on September 20, 2017, and denied on September 27, 2017, reasonable and necessary?

ii. Is the medical benefit in the amount of $3,267.73 for physiotherapy treatment recommended by Midland Wellness in an OCF-18 submitted on December 19, 2018, and denied on March 28, 2018, reasonable and necessary?

iii. Is the medical benefit in the amount of $1,720.57 for psychological treatment recommended by Midland Wellness in an OCF-18 submitted on September 11, 2018 (amount submitted was $3,192.25) and partially approved (in the amount of $1,471.68) on October 1, 2018, reasonable and necessary?

iv. Is the medical benefit in the amount of $1,047.32 for psychological treatment recommended by Midland Wellness in an OCF-18 submitted on June 1, 2018 (amount submitted was $3,192.25) and partially approved (in the amount of $2,44.93) denied on July 7, 2018, reasonable and necessary?

v. Is the medical benefit in the amount of $2,560.15 for physiotherapy treatment recommended by Midland Wellness in an OCF-18 submitted on June 7, 2018, and denied on July 9, 2018, reasonable and necessary?

vi. Is the costs of an examination expense in the amount of $2,120.00 for an orthopaedic assessment recommended by Midland Wellness in an OCF-18 submitted on October 2, 2018 and denied on October 18, 2018, reasonable and necessary?

vii. Is M.L. entitled to interest on any overdue payment of benefits?

FINDING

12Based on a review of the evidence,

a. I find that M.L. is not entitled to the OCF-18 for an orthopaedic assessment;

b. M.L. is not entitled to the OCF-18s for physiotherapy treatment;

c. M.L. is not entitled to further funding beyond what has been previously partially approved for psychological treatment; and

d. As there are no amounts overdue, M.L. is not entitled to interest.

ANALYSIS

13Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.¹

Are the physiotherapy treatment plans reasonable and necessary?

14I find that M.L. has failed prima facie to meet her burden of proof with respect to her physiotherapy treatment claims. Accordingly, I do not find it necessary to set out Zenith’s rebuttal evidence or arguments. I note that Zenith provided evidence that all of its denials were based on medical evidence and reports from its own assessor and from M.L.’s claims documents.

15M.L. relies on an MRI report² in support of her claim for further physiotherapy treatment. In the report, Dr. Murphy opines that there was “mild AC joint degenerative change, considerable fluid in the subacromial subdeltoid bursa consistent with bursitis, a roughly 1 cm partial thickness articular sided tear of the distal infraspinatus tendon, and a very small sub-centimeter full thickness tear”.

16In addition to the MRI report, M.L. relies on an orthopaedic assessment report.³ M.L. submits that, if her treating orthopaedic surgeon recommends injections in order to participate in further physiotherapy, then the treatment plans are reasonable and necessary. I disagree.

17Orthopaedic Surgeon Dr. Abughaduma opines in her report that “M.L. has maximized [her recovery] with nonsurgical treatment including…physiotherapy”. Dr. Abughaduma recommends that M.L. either receives injections and continue with physiotherapy or have shoulder surgery.

18Dr. Abughaduma does not specifically recommend physiotherapy. I find that her statement that M.L. has maximized her treatment including physiotherapy, suggests that further physiotherapy would not be of any benefit to M.L.

19I am persuaded by Dr. Abughaduma’s report that M.L. has reached maximum medical recovery. I do not find that the opinion supports that further physiotherapy treatment is reasonable and necessary. Although M.L. submits that her treatment provider records⁴ indicate that she is still having pain in her shoulder, neck and back, I find that an Orthopaedic Surgeon would be most knowledgeable in assessing M.L.’s level of impairment.

20The notes of M.L.’s treating chiropractors/physiotherapists do not provide a diagnosis based on objective testing. These clinical notes and records are a compilation of M.L.’s self-reporting of her subjective pain complaints as well as treatment based on her subjective complaints. There is no indication that the treatment providers performed any objective testing, make a diagnosis based on that objective testing, or recommend treatment based on the findings of their objective testing.

21I am not persuaded by the clinical notes and records of the chiropractors/physiotherapists. They lack any analysis of how the claimed treatment plans were reasonable and necessary to address M.L.’s alleged injuries.

22In addition, M.L. has extended health coverage for physiotherapy at 100% coverage, subject to a maximum amount per visit. As noted above, M.L. has not provided the extended health coverage documents. Zenith submits that M.L. has therefore failed to establish that the treatment plans are payable by the insurer. I agree.

23According to s. 25(1)3 of the Schedule, the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including an assessment necessary for that purpose.⁵

24Pursuant to s. 268 of the Insurance Act and s. 47(2) of the Schedule, an individual who is injured in a motor vehicle accident must first seek coverage through any available collateral benefits provider before relying on the no-fault scheme contained in the Schedule.⁶

25M.L. has not directed me to any evidence that the OCF-18s were submitted to her collateral benefits provider. As such, I find that Zenith is not required to pay any amount of the treatment plans until M.L. has provided Zenith with proof of submission to the collateral benefits provider.

26For the reasons above, I find that M.L. has not persuaded me that the physiotherapy treatment plans are reasonable and necessary.

Is the Orthopaedic Assessment reasonable and necessary?

27I find that M.L.’s request for her own orthopaedic assessment is not reasonable and necessary in order to determine the extent of her accident-related injuries and to determine a proper course of treatment.

28M.L. failed to prove that the orthopaedic assessment was not reasonably available through OHIP. M.L. did not point me to any evidence that the orthopedic assessment was not reasonably available. M.L. met with her family physician not long after the accident and obtained an orthopaedic report from Dr. Abughaduma.

29If M.L. was having significant neck and back pain complaints, Dr. Abughaduma, as an Orthopaedic Surgeon could have done an assessment, which could have been funded through OHIP.

30Therefore, based on my reasons above, I find that M.L. is not entitled to the cost of examination for the orthopedic assessment.

Are the psychological treatment plans reasonable and necessary?

31For the reasons that follow, I find the psychological treatment plans are partially reasonable and necessary.

32The parties agree that M.L. suffered psychological impairments as a result of the accident. The dispute regarding the treatment plans centres around whether the recommended duration of treatment and the related fees are reasonable and necessary.

33On May 11, 2018, Psychologist Dr. Seon conducted a s. 44 assessment of M.L. Dr. Seon opined that M.L. would benefit from 12 one-hour sessions of psychological counselling.

34On June 5, 2018, M.L. submitted a s. 25 psychological assessment which also recommended 12 sessions, however there was no comment on the duration of each session.

35On June 28, 2018, M.L. submitted an OCF-18 for psychological treatment which recommended 10 90-minute sessions, plus brokerage and preparation fees in the amount of $299.22 for a total of $3,192.25. Zenith submits that the recommendations in the treatment plan do not correspond to the recommendations made by the psychological assessors, nor is there an explanation for why 90-minute sessions are required versus the one-hour sessions recommended by Dr. Seon.

36On July 6, 2018, by way of Explanation of Benefits (“OCF-9”), Zenith partially approved the treatment plan for 10 one-hour sessions, excluding the cost of the brokerage and preparation fees.

37On September 25, 2018, M.L. submitted a second OCF-18 for psychological treatment in the amount of $3,192.25. By way of an OCF-9 dated January 2, 2019, based on the recommendation of Dr. Seon, Zenith partially approved six one-hour sessions of psychological treatment, excluding brokerage and preparation fees.

38Zenith submits that M.L. has not provided evidence to support why further psychological treatment is reasonable and necessary beyond the partially approved amounts. In addition, M.L. has failed to produce evidence that the psychological sessions should be 90 minutes long. Further, due to M.L.’s non-compliance of failing to produce the necessary medical records related to counselling, there is no evidence to support that further counselling is required beyond what Zenith has already approved. I agree.

39In support of its partial approval of the psychological OCF-18s, Zenith relies on the Financial Services Commission Professional Services Guideline (the “Guideline”)⁷ which states that the maximum hourly rate for a psychologist is $149.61/hr. At page 3 of the Guideline, it states,

Expenses related to professional services” as referred to in the SABS and the Professional Services Guideline include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.

40Zenith contends that the brokerage and preparation fees are not payable. M.L. provides no explanation as to why the brokerage and preparation fees are payable. As such, I agree that the brokerage and preparation fees are not reasonable and necessary.

41M.L. has not met her burden to persuade me that the psychological treatment she seeks beyond what was partially approved is reasonable and necessary. In addition, M.L. has failed to show that the brokerage and preparation fees are reasonable and necessary.

42It is unclear whether M.L. has incurred the partially approved treatment. I find that M.L. is not entitled to any further funding beyond what Zenith has already approved for psychological treatment. Consequently, I find that Zenith is not required to provide funding for the balance of the psychological OCF-18s.

CONCLUSIONS

43M.L. is not entitled to payment of the OCF-18 for an orthopaedic assessment;

44M.L. is not entitled to payment for the physiotherapy OCF-18s until proof of submission to her collateral benefits provider is given to Zenith;

45M.L. is not entitled to any additional funding of the OCF-18s for psychological treatment; and

46No interest is payable as there is no outstanding payment of benefits. The application is dismissed.

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635.
2. 2MRI Report dated December 19, 2017
3. 3Orthopaedic Assessment Report dated August 27, 2018
4. 4Clinical Notes and Records from Midland Wellness Centre – Applicant Submissions at Tab 2
5. 5Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, s. 25(1)3
6. 6Supra note 1 at 1, s. 47(2), Insurance Act, R.S.O. 1990, CHAPTER I.8, s.268
7. 7Professional Services Guideline 03/14