Catherine Ambegia v. Certas Direct Insurance Company, 2022 CanLII 14964

Citation: Ambegia v. Certas Direct Insurance Company, 2022 ONLAT 20-004896/AABS

Licence Appeal Tribunal File Number: 20-004896/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:

Catherine Ambegia

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Justin Mariani, Counsel

For the Respondent:

Maggie Morgan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Catherine Ambegia (“C.A.”) was involved in an automobile accident on October 4, 2016 and sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”). Certas denied the benefits in dispute on the basis that it determined that they were not reasonable and necessary. C.A. disagreed and applied to the Tribunal for resolution of the dispute.

PRELIMINARY ISSUES

2Certas raised a preliminary issue pursuant to s. 56(1) of the Schedule, on several of the disputed benefits. Its position was that C.A. failed to dispute some of the benefits within two years of Certas’ denial.

3Further, Certas raised a preliminary issue pursuant to s. 38(2) and s. 55(1) of the Schedule. Its position was that it did not receive a copy of the OCF-18.

4Preliminary issues were raised on the following treatment plans:

Section 56(1)

a. Is the medical benefit in the amount of $2,546.00 for chiropractic treatment, recommended by Medex Health Centre in a treatment plan dated October 16, 2017, reasonable and necessary?

b. Is the medical benefit in the amount of $1,263.52 for physiotherapy, recommended by Arthrospine Physiotherapy and Wellness in a treatment plan dated January 14, 2017, reasonable and necessary?

c. Is the cost of examination expense in the amount of $2,200.00 for a psychological assessment, recommended by Medex Medical Centre in a treatment plan dated January 19, 2018, reasonable and necessary?

Section 38(2) and Section 55(1)

d. Is the cost of examination expense in the amount of $2,460.00 for an orthopaedic assessment, recommended by Elite Specialist Group in a treatment plan dated December 17, 2018, reasonable and necessary?

ISSUES

5In addition to the preliminary issues noted above, the following benefits are also in dispute:

a. Is the medical benefit in the amount of $4,384.04 for psychological treatment, recommended by Elite Specialist Group in a treatment plan dated March 19, 2019, reasonable and necessary?

b. Is the medical benefit in the amount of $1,250.00 for chiropractic treatment, recommended by York Medical Centre in a treatment plan dated October 15, 2018, reasonable and necessary?

c. Is the cost of examination expense in the amount of $2,460.00 for a psychological assessment, recommended by Elite Specialist Group in a treatment plan dated January 9, 2019, reasonable and necessary?

d. Is the cost of examination expense in the amount of $200.00 for a disability certificate dated October 15, 2018, reasonable and necessary?

e. Is Certas liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to C.A.?

f. Is C.A. entitled to interest on any overdue payment of benefits?

6In submissions, C.A. withdrew issue numbered 4b. As such, this decision will focus on the remaining issues in dispute.

FINDINGS

7C.A. is statute-barred in accordance with s. 56(1) of the Schedule from proceeding with her claims for the following benefits:

a. OCF-18 dated October 16, 2017 for chiropractic treatment;

b. OCF-18 dated January 19, 2018 for a psychological assessment; and

c. OCF-18 dated December 17, 2018 for an orthopaedic assessment

8C.A. is not entitled to funding for the following benefits:

a. OCF-18 dated October 15, 2018 for chiropractic treatment;

b. Disability Certificate dated October 15, 2018;

c. OCF-18 dated January 9, 2019 for a psychological assessment; and

d. OCF-18 dated March 19, 2019 for psychological treatment.

9C.A. is not entitled to an award.

ANALYSIS

Is C.A. statute-barred from claiming the following benefits:

OCF-18 dated October 16, 2017 for chiropractic treatment

OCF-18 dated January 19, 2018 for a psychological assessment

OCF-18 dated December 17, 2018 for an orthopaedic assessment

10Section 56(1) of the Schedule sets out a two-year limitation period within which proceedings must be commenced after the insurer’s refusal to pay the amount claimed. C.A. has failed to establish that her claims for these disputed benefits were commenced within two years after the denial. In addition, C.A. incurred the expense for an orthopaedic assessment prior to submitting the OCF-18, which is not in accordance with s. 38(2) of the Schedule. Certas’ denials were proper and in accordance with s. 38(8) of the Schedule.

11C.A. relies on T.F. v. Peel Mutual Insurance Company², which sets outs the test for insurer denials, providing that, “an insurer’s medical and any other reasons should include specific details about the insured’s condition forming the basis for the insurer’s decision. Further, that an insurer’s medical and any other reasons should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

12C.A. submits that the denials of the two OCF-18s were not in compliance with s. 38(8) as they did not provide clear medical and other reasons for the denial. C.A. points to a portion of the reasons provided in the Explanation of Benefits (“EOB”), where it is indicated that there was no evidence that her injuries fell outside the Minor Injury Guideline. C.A. argues that this reasoning fails to meet the standard of “clear and sufficient” and therefore the OCF-18s are payable, in accordance with s. 38(11) of the Schedule.

13Certas posits that the October 16, 2017 OCF-18 (submitted November 15, 2017) was denied on November 22, 2017, which is within the s. 38 timelines. Further, that C.A. was notified on November 22, 2017 that a s. 44 insurer’s examination (“IE”) was being scheduled to address whether the OCF-18 was reasonable and necessary. A report was generated by orthopaedic surgeon Dr. Yee on December 18, 2017. An EOB dated December 20, 2017 denied the OCF-18 pursuant to the report of Dr. Yee. Certas’ position is that C.A. is barred from pursing a claim for the October 2017 OCF-18 as she commenced the proceeding on May 11, 2020, more than two years after the denial.

14On the evidence, the November 22, 2017 notice explains that the OCF-18 was received, that Certas will not pay for any of the recommended goods and services and an IE is being scheduled. For each of the modalities recommended in the OCF-18, Certas provided the following reason for the IE, “to assist in determining whether the plan relates to injuries from the accident and is reasonable and necessary as we have insufficient information to make this determination.”

15In the December 20, 2017 EOB, they rely on Dr. Yee’s conclusion that the accident-related injuries are minor and that although C.A.’s recovery may have been prolonged because of pre-existing degenerative disc disease, no further facility-based treatment was required. The EOB further noted that C.A. did not suffer any neurological impairment as a result of the accident. The EOB advised C.A. of the OCF-18 it agreed to fund and the denial of the October 2017 OCF-18.

16On the evidence, I am persuaded that both the November 2017 correspondence and the December 2017 EOB sufficiently and clearly provided C.A. with Certas’ position, such that an unsophisticated person would be able to make a decision to accept or dispute the determination. The timeliness of both notices falls within the required timelines set out in the Schedule, and I agree that the “medical and other reasons” were clearly set out in both notices.

17The January 2018 OCF-18 (submitted February 13, 2018), was initially denied in a letter dated February 22, 2018. C.A. was informed that a s. 44 IE was to be scheduled to address this treatment plan. A s. 44 psychology assessment report was prepared by Dr. Day on March 22, 2018, in which Dr. Day concluded that C.A. did not meet the DSM-5 criteria for a psychological disorder. C.A. was provided with a copy of the denial of the OCF-18 by way of correspondence dated March 29, 2018. The reason for the denial was provided in the notice, indicating that the OCF-18 is not being considered because the IE concluded that the psychological assessment was not reasonable and necessary, in accordance with Dr. Day’s IE report.

18I understand that at the time of this January 2018 OCF-18, C.A. was already taken out of the MIG, therefore there is no indication in the denial that her injuries were considered minor. As such, I find that the “medical and other reasons” provided, were clear and sufficient and would allow C.A. to be able to make a determination as to accept or dispute Certas’ position regarding the January 2018 OCF-18.

19I accept that the correspondence and EOBs for both OCF-18s contained clear and sufficient language and that they were provided in accordance with s. 38(8) of the Schedule. While C.A. argues that the OCF-18s are reasonable and necessary, this issue is moot, as I find that she is statute-barred from pursuing her claim for these treatments for the reasons stated above.

20Regarding the December 2018 OCF-18, C.A. does not refute Certas’ claim that the expense was incurred prior to the OCF-18 being submitted.

21Section 38(2) of the Schedule sets out that an insurer is not liable to pay a medical or rehabilitation benefit, or an assessment or examination which was incurred by an insured person prior to the insured person submitting a treatment plan which satisfies the requirements set out within s. 38(3). There are four exceptions noted within s. 38(2).

22I find that the evidence demonstrates that the cost of the OCF-18 was incurred prior to C.A. submitting it to Certas. C.A. did not make any submissions regarding whether the exceptions listed in s. 38(2) apply, and I do not find any of those exceptions are applicable in this case. While I am sympathetic that C.A. incurred the expense, I find that the requirements set out in s. 38(2) are clear. Consequently, due to C.A.’s non-compliance with s. 38(2), the December 2018 OCF-18 is not payable.

OCF-18 dated October 15, 2018 for chiropractic treatment

23Section 15(1) of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. C.A. bears the onus to prove that the benefits for which she seeks funding are reasonable and necessary for her accident-related injuries and impairments. I find C.A. has not met her burden on a balance of probabilities.

24C.A. relies mainly on the medical records of her family physician, Dr. Hwang in support of her claim that the October 2018 OCF-18 is reasonable and necessary.

25Certas’ position was that the ongoing treatment was not considered reasonable and necessary, relying on the IEs from Dr. Yee, and Dr. Murty. Certas submits that the additional comments in the OCF-18 indicate that treatment is provided by “session” and not by the hour, and further that each session, may be a combination of massage, chiropractic treatment, acupuncture, physical therapy or active rehabilitation, with no breakdown of time spent for each service. Certas’ position is that the proposed services are specific modalities that are not interchangeable, and the rates charged are contrary to the Professional Services Guideline³ (the “Guideline”).

26There is no indication in the disputed OCF-18 or the other evidence to suggest the OCF-18 proposes a specific number of sessions on an hourly basis, in order to calculate the appropriate maximum hourly rate payable. Instead, the OCF-18 proposes seven sessions, to be billed at a per session rate of $150.00, which is not in compliance with fee schedule in the Guideline for any particular treatment modality.

27Specifically, the OCF-18 notes:

Our office treats the patient by "session" not by hour, as our office renders interdisciplinary care to each patient. Each session may comprise of a combination of: a. Massage and/or b. Chiropractic and/or c. Acupuncture and/or d. Physical therapy/modality such as laser, ultrasound and various forms of electrotherapy and/or e. Active Rehabilitation session The cost of $150 per physical rehabilitation session accounts for the nature of care rendered to each patient.

28It is well settled that specific modalities are to be billed in accordance with the Guidelines, and where an OCF-18 fails to provide the appropriate rates for a particular modality, it fails to establish that the costs of the treatment are reasonable and necessary.

29Accordingly, I find that C.A. is not entitled to the cost of the OCF-18, as the ambiguity of the hourly rates fails to clearly set out the appropriate fees for massage ($58.19/hr), chiropractic ($112.81/hr), and the other treatment services noted in the OCF-18 as required by the Guideline.

Disability Certificate dated October 15, 2018

30Certas submits that C.A. is not entitled to the cost of the claim for the October 15, 2018 Disability Certificate, as it did not request it. Its position is that C.A. returned to her pre-accident employment and continued to work at the time the Disability Certificate was completed.

31C.A. offered no submissions on the issue and did not refute Certas’ position on the Disability Certificate not being reasonable and necessary. Further, on reply, C.A. did not indicate that she was seeking payment of the Disability Certificate when setting out the order she sought from the Tribunal regarding the disputed issues. As such, I find that she has not satisfied her onus to establish that the cost of the Disability Certificate is reasonable and necessary.

32As C.A. was working at the time the Disability Certificate was completed, this is an obvious indication that she is not disabled to the extent that her accident-related injuries prevent her from working. Consequently, I find that Certas is not required to pay the cost of the Disability Certificate.

OCF-18 dated January 9, 2019 for a psychological assessment

OCF-18 dated March 19, 2019 for psychological treatment

33For the reasons that follow, I find that the OCF-18s for a psychological assessment and psychological treatment are not reasonable and necessary. In order to demonstrate that a treatment plan is reasonable and necessary, an applicant must establish that the treatment is reasonable, that the treatment goals are being satisfied to a reasonable degree, and that the cost of achieving the goals is reasonable and necessary.

34C.A. submits that she continued to experience documented psychological impairment issues at the time the OCF-18 was submitted. She further submits that as a result of her accident-related impairments, the psychological assessment was incurred, therefore affirming the reasonableness and necessity of the assessment and treatment. Lastly, she submits that Certas maintained its position based on a s. 44 report done approximately one-year prior to the submission of the OCF-18s.

35C.A. indicates in her submissions that the clinical notes and records of her family physician, Dr. Hwang, note that on an October 15, 2018 visit, Dr. Hwang indicated she would benefit from a psychological assessment. However, on review of the evidence, I note an October 31, 2018 entry, where there is no presentation or diagnosis of any accident-related psychological complaints from Dr. Hwang.

36Certas relies on its March 22, 2018 s. 44 report of Dr. Day wherein, C.A. reported that she “did not see herself in need of psychological support at this time.” She further indicated to Dr. Day that she did not feel she was lacking control of her accident-related symptoms in terms of her overall adjustment or functioning. Dr. Day also noted that C.A. “placed more importance on ongoing physiotherapy treatment”, when given a choice of treatment that she believed would facilitate her overall recovery.

37While I agree that Certas maintained its position on a report that is less than a year prior to the January 2019 OCF-18 and approximately one year prior to the March 2019 OCF-18, I am not persuaded that either OCF-18 is reasonable and necessary. My finding is supported by the contemporaneous records from Dr. Hwang, specifically a February 6, 2019 visit and a subsequent April 11, 2019 visit, where there is no mention of any psychological symptomatology, or recommendation for any psychological-based treatment.

38Coupled with her own admission to Dr. Day that she would rather receive continued physical treatment, and the omission of any psychologically-based opinion outside of that of the authors of the OCF-18s, I find that C.A. has not pointed me to persuasive evidence that the denied OCF-18s are reasonable and necessary. Reliance on the OCF-18s alone is not enough to establish that the treatment is reasonable and necessary, that the treatment goals are being satisfied to a reasonable degree, or that the cost of the treatment goals is reasonable and necessary. C.A. has failed to address any of these elements of the reasonable and necessary test. Consequently, she has failed to satisfy her onus to establish that the OCF-18s are reasonable and necessary.

AWARD

39C.A. claims entitlement to an award under s. 10 of O. Reg. 664 on the basis that Certas failed to consider any medical evidence submitted on her behalf and maintained its denials of the benefits.

40Certas submits that it has reviewed the contemporaneous records of Dr. Hwang, treating physiatrist, Dr. Gynes and chronic pain specialist, Dr. Khetani. Its position is that C.A. failed to put the efficacy of the treatment in to evidence, and therefore, failed to establish that the treatment was reasonable and necessary. Therefore, its position is that it properly responded to all of the disputed claims.

41In determining the type of conduct for which an award may be appropriate, the adopted standard is set out in the FSCO case Plowright v. Wellington Insurance Co.⁴ According to Plowright, the conduct must be found to be an “immoderate, imprudent, inflexible, and excessive” approach with respect to the insurer’s decision-making. The award was less than 10% of the total benefits.

42Under s. 10, the Tribunal may grant an award up to 50 percent of the amount to which an applicant would be entitled to if the Tribunal finds that the respondent has unreasonably, withheld, or delayed payments based on its conduct.

43It is well settled that an award should not be ordered simply because an adjudicator determined that an insurer made an incorrect determination. Instead, in order to grant a s. 10 award, the insurer’s conduct must rise to the level described in Plowright, that being, excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I do not find that Certas’ conduct justifies an award.

44Since I have found that C.A. is not entitled to any benefits, Certas cannot have been found to have unreasonably withheld or delayed payment of those benefits.

ORDER

45C.A. is statute-barred in accordance with s. 56(1) of the Schedule from proceeding with her claims for the following benefits:

a. OCF-18 dated October 16, 2017 for chiropractic treatment;

b. OCF-18 dated January 19, 2018 for a psychological assessment; and

c. OCF-18 dated December 17, 2018 for an orthopaedic assessment

46C.A. has not satisfied her onus on a balance of probabilities that the following benefits are reasonable and necessary:

d. OCF-18 dated October 15, 2018 for chiropractic treatment;

e. Disability Certificate dated October 15, 2018;

f. OCF-18 dated January 9, 2019 for a psychological assessment; and

g. OCF-18 dated March 19, 2019 for psychological treatment.

47C.A. is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 216-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)
3. 3Superintendent’s Guideline No. 03/14.
4. 41993 OIC File No.: A-003985 (FSCO) [“Plowright”].