Citation: Khosla v. TD General Insurance Company, 2021 ONLAT 19-010508/AABS

Released Date: 02/08/2021

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:

Veena Khosla

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Dean Trinetti, Counsel

For the Respondent:

Jennifer Beresford, Counsel

Heard By Way of Written Submissions

OVERVIEW

1The applicant, Veena Khosla (“Ms. Khosla”), was injured in an automobile accident on August 26, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from TD General Insurance Company (“TD”), the respondent.

2TD denied Ms. Khosla’s claim for income replacement benefits, for various physical therapy modalities and for assistive devices. As a result, Ms. Khosla submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on July 9, 2020 and the parties were able to resolve some of the issues in dispute. A written hearing was scheduled for the remaining issues in dispute.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is Ms. Khosla entitled to $4,245.040 for chiropractic treatment, massage therapy and assistive devices recommended by HealthMax Physiotherapy Clinics (“HealthMax”) in a treatment plan (“OCF-18”) dated September 15, 2017 and denied on October 25, 2017?

(ii) Is Ms. Khosla entitled to interest on any overdue payment of benefits?

RESULT

5I find that Ms. Khosla is not entitled to the September 15, 2017 OCF-18 pursuant to s. 38(5) of the Schedule as the OCF-18 was submitted during a period where Ms. Khosla was receiving goods and services under the Minor Injury Guideline (the “MIG”).² Given that the treatment plan was denied on this basis, s. 38(6) prevents the Tribunal from reviewing TD’s denial. No interest is payable as there are no benefits owing.

ANALYSIS

The September 17, 2017 Treatment Plan

6Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident. Ms. Khosla bears the onus of proving that the OCF-18 is reasonable and necessary on a balance of probabilities.³

7The OCF-18 was completed by Dr. Fudumo Hassan, chiropractor, and sought funding for chiropractic treatment, massage therapy and various assistive devices.

8TD denied the September 15, 2017 treatment plan on October 25, 2017 via correspondence which stated, “we are unable to approve the goods, services and/or assessments on the basis that you have an impairment that entitles you to receive goods or services under the Minor Injury Guideline.” A second denial letter was sent on December 4, 2017 that again advised Ms. Khosla that TD was of the opinion that she sustained minor injuries, that she was subject to the $3,500.00 medical rehabilitation limits of the MIG and that TD would not be paying for the goods and services set out in the September 15, 2017 OCF-18. The December 4, 2017 correspondence also advised Ms. Khosla that TD waived the requirement of the completion of a Treatment Confirmation Form (“OCF-23”) and would proceed to make payments for goods and services in accordance with the MIG.

9Both parties agree that Ms. Khosla was later removed from the MIG by TD, however, neither party provided the date that this occurred. I accept that as of at least January 11, 2018, Ms. Khosla was still being treated within the MIG based on correspondence of this date from TD to Ms. Khosla.

10It is Ms. Khosla’s position that once she was removed from the MIG, TD neither reconsidered its denial of the disputed treatment plan nor made a determination regarding its reasonableness and necessity.

11TD’s position is that it was entitled to deny the OCF-18 pursuant to s. 38(5) of the Schedule. Section 38(5) permits an insurer to refuse to accept a treatment plan if the plan describes goods or services to be received in respect of any period during which the insured person is entitled to receive goods or services under the MIG. TD submitted an Auto Insurance Standard Invoice (“OCF-21”) dated January 11, 2018 which showed that Ms. Khosla received services from HealthMax between September 15, 2017 and January 10, 2018 while she was being treated within the MIG. Therefore, TD submits that its denial of the OCF-18 was in accordance with s. 38(5) and, as a result, its denial is final and not subject to review by the Tribunal pursuant to s. 38(6) of the Schedule.

12Ms. Khosla filed no reply submissions and failed to address TD’s position regarding sections 38(5) and 38(6).

13Ms. Khosla was clearly being treated within the MIG when the OCF-18 was submitted to TD, which is evidenced by the January 11, 2018 OCF-21. While the OCF-18 contained information from Dr. Hassan as to why he believed that Ms. Khosla’s injuries required treatment beyond the MIG, there is no evidence before me that any compelling evidence in addition to the OCF-18 itself was provided to TD at the time the treatment plan was submitted for consideration to support Dr. Hassan’s opinion. Moreover, I find that the submission of the January 11, 2018 OCF-21 by Ms. Khosla was an acknowledgment that she was being treated within the MIG given s. 49(1) of the Schedule, which requires the submission of an OCF-21 to an insurer prior to payment for expenses for goods and services received under the MIG.

14As TD was clear in both of its denial letters dated October 25, 2017 and December 4, 2017 that the OCF-18 was denied on the basis that Ms. Khosla was being treated within the MIG, I find that s. 38(5) applies in this matter and I am prevented from reviewing the denial pursuant to s. 38(6) of the Schedule regardless of the fact that Ms. Khosla was later removed from the MIG by TD.

Interest

15As there are no benefits owing, no interest is payable.

CONCLUSION

16For the reasons outlined above, I find that Ms. Khosla is not entitled to the September 15, 2017 OCF-18 in dispute as TD issued a valid denial under s. 38(5) and, accordingly, s. 38(6) prevents the Tribunal from reviewing the denial. No interest is payable, and the application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.