Licence Appeal Tribunal File Number: 21-010726/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:
Sui Ming Lo
Applicant
and
Aviva Insurance Company of Canada
Respondent
AMENDED DECISION
ADJUDICATOR:
Deborah Neilson
APPEARANCES:
For the Applicant:
Sui Ming Lo, Applicant
Gail Wong, Counsel
Maka Metreveli, Paralegal
For the Respondent:
Jonathan White, Counsel
HEARD:
In Writing
OVERVIEW
1Sui Ming Lo, the applicant, was involved in an automobile accident on February 6, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant seeks payment for attendant care benefits, massage and physiotherapy services, assistive devices, and the cost of neurological, chronic pain and concussion assessments incurred on the basis the respondent did not properly deny her claims for these benefits. She seeks payment of these benefits she has incurred until such time as the respondent provides proper denials.
ISSUES
3The issues in dispute as listed in the case conference order are as follows:
i. Is the applicant entitled to attendant care benefits in the amount of $3,059.50 per month from November 30, 2020 to date and ongoing, for services proposed by Optimal Assessment Centre in a treatment plan (OCF-18) submitted, November 30, 2020, denied on December 18, 2020?
ii. Is the applicant entitled to $2,017.08 for chiropractic services , proposed by Bloor-Dufferin Rehab in a treatment plan submitted July 14, 2020, denied on August 28, 2020?
iii. Is the applicant entitled to $3,051 for other goods and services of a medical nature , proposed by Dr. Michael Gofeld in a treatment plan submitted November 18, 2020, denied on February 22, 2021?
iv. Is the applicant entitled to $1,381.81 for other goods and services of a medical nature, proposed by Optimal Assessment Health Centre in a treatment plan submitted November 26, 2020, denied on December 22, 2020?
v. Is the applicant entitled to $2,726.48 for other goods and services of a medical nature, proposed by Optimal Assessment Health Centre in a treatment plan submitted December 7, 2020, denied on December 22, 2020?
vi. Is the applicant entitled to $3,051 for other goods and services of a medical nature, proposed by Optimal Assessment Health Centre in a treatment plan submitted March 30, 2021, denied on April 12, 2021?
vii. Is the applicant entitled to $1,317.73 for medical services , proposed by Bloor-Dufferin Rehab in a treatment plan/OCF-18 (“plan”) submitted July 13, 2021, denied on July 30, 2021?
viii. Is the applicant entitled to interest on any overdue payment of benefits? #
RESULT
4The applicant is entitled to expenses incurred, if any, from the 11th business day after receipt of the treatment plans for $3,051 for a chronic pain assessment, $1,317.73 for physiotherapy and massage therapy, the $2,017.08 treatment plan for chiropractic services, and interest in accordance with the Schedule. The remainder of the applicant’s claims are dismissed.
PROCEDURAL ISSUES
5The case conference order lists eight issues, none of which are an award under s. 10 of Regulation 664 (“award”). However, in her submissions, the applicant has asked for an award on the basis the respondent has acted in an unreasonable manner. In my view, the issue of an award is not properly before the Tribunal. Neither party has filed motions to add the issue of an award to this proceeding. As such, the Tribunal will not consider the issues and will focus its analysis on the issues that are outlined in the case conference order.
ANALYSIS
6The applicant was 62 years old on the date of loss and had pre-existing mild degenerative disc disease and osteoarthritis of C5-6. She sustained soft tissue injuries in the accident consisting of a grade II whiplash associated disorder and sprain of the lower back and shoulders. She also complained of insomnia and has been diagnosed with migraine headaches as a result of the accident. At the time of the accident the applicant was employed full-time at a Japanese restaurant. She also held a part-time job consulting over the phone for a kitchen cabinet company. After the accident, she returned to work at her part-time consulting job.
7On April 1, 2020, the applicant consulted with Dr. Paul Chan, family physician, by telephone. He assessed Major Depressive Disorder. He noted that she was having concentration issues in the context of certain life changes that appeared unrelated to the accident. These included a recent break-up with her boyfriend, moving in with her elderly mother in seniors’ housing, and financial stress related to applying for Employment Insurance benefits after losing her employment position as a restaurant server during the COVID-19 pandemic. On July 6, 2020, the claimant reported to Dr. Chan that she had blurred vision that improved with blinking. She was receiving CERB benefits. Dr. Chan diagnosed dry eyes, and recommended physiotherapy for her pain symptoms.
8December 4, 2020, Dr. David Kennedy, the applicant’s family physician, noted that the applicant had fallen in her kitchen, landing hands and feet first. There was no head injury. He assessed a “fall” and recommended ice and analgesia. On September 20, 2021, Dr. Daniel Wong, neurologist, in a telephone assessment diagnosed cervicogenic headaches, likely as a result of whiplash. In a follow-up telephone assessment on September 13, 2022, Dr. Wong noted only a mild degree of chronic angiopathic changes. He diagnosed her symptoms as musculoskeletal in origin.
The applicant not entitled to attendant care benefits
9The applicant claims that she is entitled to attendant care benefits (“ACB”) of $3,059.50 per month from November 30, 2020 to date and ongoing for services proposed by Optimal Assessment Centre in a treatment plan submitted November 30, 2020, denied on December 18, 2020. The applicant’s submission is that the respondent did not properly deny ACBs. Therefore, she is entitled to ACBs until there is a proper denial.
10Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
11Once an insurer receives a Form 1, under s. 42(3) of the Schedule, it is required to advise the insured person of how much attendant care it agrees to pay the person and the medical and/or reasons for why it does not agree to pay for all of the attendant care benefits claimed. An insurer is required to begin paying ACBs within 10 business days of receiving a Form 1, pending receipt of an IE Form 1. However, an insurer is only required under s. 19(3)5 to pay for the attendant care expense that has been incurred by the insured person if is less than the amount recommended in the Form 1.
12The applicant apparently submitted a Form 1 prepared by Jiwan Kim, occupational therapist. and not a treatment plan as stated in the application and case conference order. The respondent advised the applicant on October 1, 2020 that it required insurer’s examinations (“IE”) to determine whether Ms. Kim’s recommendations were reasonably required for the injuries she received in the accident.
13The applicant submits that the respondent failed to provide medical reasons for why it sought attendant care IEs. She initially did not object to the reasons for the IEs and attended at three IE assessments. By undergoing the IE assessments, the applicant waived any recourse she may have had against the respondent for failure to provide medical reasons in its notice of examination. To deem attendant care benefits payable for a breach of s. 44(5) would be to read into the Schedule a remedy that is not provided.
14The respondent relies on the IE reports of Dr. Isa Mohammed, general practitioner; Dr. Sarah Talebizadeh, psychologist; and Nicolas Livadas occupational therapist; all dated December 14, 2020. The IE assessors all agreed that the applicant did not require any attendant care. Mr. Livadas prepared a Form 1 that recommended $0 attendant care. The applicant was advised on December 18, 2020, that attendant care was denied from December 15, 2020.
15Under s. 42(13)(b) of the Schedule, the respondent was required to provide the medical and other reasons for why it was refusing to pay any further ACBs in its December 18, 2020 letter. No medical reason was provided other than the most recent Form 1 recommended $0 attendant care. However, the respondent referred the applicant to the IE reports enclosed in the letter for a detailed explanation of the assessors’ opinions and findings.
16Unlike ss. 38(11) and 36(6), s. 42 of the Schedule does not contain any provision requiring an insurer to pay ACBs until a proper denial is made. Accordingly, I find that to deem ACBs payable for a breach of s. 42(13)(b) would also be to read into the Schedule a remedy that is not provided.
17The applicant has not made any submissions or pointed to any evidence, including a Form 1, that recommends the attendant care claimed is reasonable and necessary. She did not dispute that the attendant care is not reasonable or necessary after December 15, 2020. Nor has she provided any proof that she incurred the attendant care claimed. The respondent advised that, pending receipt of the IE, it would pay for the expenses she incurred for attendant care services up to the amount recommended on the Form 1. However, the applicant presented no evidence that the attendant care claimed was ever incurred. Accordingly, this claim is dismissed.
The applicant is entitled to $70 for a physiotherapist to fill a claims form if the expense has been incurred
18The applicant is seeking entitlement to $2,017.08 for chiropractic services from Bloor-Dufferin Rehab that was proposed by John Haluskay, chiropractor in a treatment plan dated July 14, 2020. The respondent approved the treatment but denied that the applicant was entitled to any more than $200.00 for the cost of preparing the treatment plan and advised that applicant that it was only going to pay $1,947.08 of the proposed goods and services as a result. This means the amount in dispute is for $70.00. The applicant submits it is payable because the respondent never properly denied the $70.00.
19The applicant relies on s. 38(11)(2) of the Schedule. Under that section, if an insurer fails to provide a proper denial of a treatment plan for an assessment or medical or rehabilitation benefits that has been properly filled out within 10 business days of receipt of the treatment plan, the insurer is required to pay for the goods and services incurred that are listed in the treatment plan from the 11th business day after the treatment plan was received until the proper denial is made. The applicant also relies on 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (TF v. Peel Mutual) and submits that a proper denial requires an insurer to provide “medical reasons” for denying a plan that engage the specific details about the insured’s condition forming the basis for the insurer’s decision. The reasons should also be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response.
20The applicant submits that the respondent did not provide her with a copy of the treatment plan. The denial letter dated August 28, 2020 states that a faxback or the last page of the treatment plan was enclosed. However, there is no proof before me that it was enclosed such as a fax confirmation sheet showing the number of pages successfully faxed. The applicant also submits that the respondent failed to provide medical reasons for its denial. I agree with the applicant that, in the absence of the treatment plan or more of an explanation, it is not clear what is being denied. The respondent’s August 28, 2020 denial letter states that it had received a treatment plan from John Halusky, chiropractor, who recommended chiropractic, physiotherapy and massage therapy treatments for a total cost of $2,017.08. However, in a chart contained in the letter, the respondent indicated the amount approved was $1,947.08. The respondent also reminded the applicant that the maximum payable for preparation of a treatment plan was $200,00. There was no explanation provided as to what was denied and the reason why. In the absence of a treatment plan, I have no understanding of what was denied.
21If I am unable to determine what treatment the respondent is denying and why, I do not see how the applicant could know what was denied or why.
22The respondent does not deny that it failed to provide a proper notice. However, it submits that it is not required under the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Professional Services Guideline”) to pay more than $200.00 for the cost of assessing and filling out the treatment plan. Under s. 15(2)(b), s. 16(4)(a) and s. 25(3) of the Schedule, the respondent is not required to pay for gods and services that exceed the amounts set out on the Professional Services Guideline. Expenses related to professional services as referred to in the Schedule 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. The physiotherapist, Krupa Patel, was going to charge an additional $70.00 for documentation, support activity for claim form. If this explanation had been provided to the applicant along with a copy of the treatment plan in dispute, the reason of the denial would have been clear.
23Historically, insurers are not required to pay over and above the policy limits unless it is for some type of poor behaviour. Despite s. 15(2)(b), s. 16(4)(a) and s. 25(3), the Legislature has made it clear that an insurer will be punished for failing to provide a denial with the requisite reasons. For example, under s. 38(11) of the Schedule, an insurer will be liable for paying for medical expenses incurred under a treatment plan that exceed the $3,500.00 policy limits for a minor injury if the insurer fails to advise that a reason for the denial of the treatment plan is the Minor Injury Guideline (“MIG”). Given this propensity of the Legislature, I find that, despite the Professional Service Guideline restrictions, the respondent is liable under s. 38(11) for paying the $70.00 if it was incurred from the 11th business day after the treatment plan was received (which date is unknown) until such time as the respondent provides a proper denial.
The applicant is not entitled to $1,381.81 for assistive devices
24The applicant is seeking entitlement to $1,381.81 for other goods and services of a medical nature from Optimal Assessment Health Centre apparently proposed by Jiwon Kim in a treatment plan dated November 26, 2020, submitted on December 8, 2020 and denied on December 22, 2020. The applicant submits that the services recommended in the treatment plan are assistive devices.
25To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
26The applicant submits that the treatment plan is reasonable and necessary because clinical notes and records were provided to the respondent for its insurer’s examiner under s. 44 of the Schedule (“IE”), to review, and he did not review those notes.
27The respondent relied on the opinion of its IE assessor, Dr. Isa Mohammed, a family physician, and the findings of an occupational therapist to deny the assistive devices on the basis they were not reasonable or necessary. Dr. Mohammed stated in his report that the assistive devices were not necessary, but should additional documentation become available, she reserved the right to make any necessary amendments. Dr. Mohammed diagnosed the applicant with cervical (WADII) strain/sprain with cervicogenic headaches and lumbar strain/sprain as a result of the accident. He determined the treatment plan was not reasonable or necessary because there was no evidence of neurological or radicular pathology related to the accident.
28On April 27, 2021, the applicant provided the respondent with the clinical notes and records of Dr. Kennedy, the applicant’s family physician, and Dr. David Boivin-Lafleur. Dr. Kennedy referred the applicant to a headache clinic at Sunnybrook Hospital where she was seen by Dr. Willian Kingston, neurologist. Dr. Kingston reported on September 22, 2020, that the applicant’s headaches meet the criteria for headaches attributable to external injury of the head, migraine phenotype. She also has symptoms suggestive of an active concussion and was still in the recovery phase.
29The applicant has provided no authority to support her submission that an insurer is liable for treatment if it does not provide new information to its IE assessor to review. A failure to reconsider new medical information may entitle an insured person to an award under s. 10 of Regulation 664 if the insured person is subsequently determined to be entitled to the disputed treatment. However, there is nothing in the Schedule that states a failure to provide new medical information to an IE assessor who has already prepared a report will automatically entitle the insured person to the denied treatment or assessment.
30The applicant submits that she has provided sufficient medical evidence to satisfy her onus. However, she has not provided any submissions or evidence on what the goals of the treatment plan were or how the overall cost of achieving those goals was to be reached. I agree with the reasoning in 16-001539 v Wawanesa Mutual Insurance Company, 2017 CanLII 82039 (ON LAT). In that case, the Tribunal did not find that reading a treatment plan in issue without a persuasive analysis as to why it is reasonable and necessary was convincing. In this case, I do not even have a copy of the treatment plan in issue in order to determine what the goals were and whether the cost of for achieving those goals is reasonable. Accordingly, this claim is dismissed.
The applicant is entitled to physiotherapy and massage therapy incurred
31The applicant’s claim for $1,317.73 for medical services from Bloor-Dufferin Rehab proposed in a treatment plan submitted on July 20, 2021, dated July 13, 2021, and denied on July 30, 2021 is, according to the applicant’s submissions, a claim for physiotherapy and massage therapy. According to the respondent’s submissions, the treatment was recommended by Binda Chaulagain. The applicant submits that she is entitled to the physiotherapy and massage therapy recommended in this treatment plan because the respondent’s denial notice dated July 30, 2021 seeking an insurer’s examination under s. 44 of the Schedule (“IE”) did not provide adequate medical reasons.
32The applicant submits that the denial of the proposed treatment and the request for an IE were not made in accordance with the Schedule. The applicant relies on T.F. v. Peel Mutual Insurance Company, which held that an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies.
33The denial and IE notice dated July 30, 2021 stated that the applicant did “…not appear to show objective signs of improvement despite continuing treatment.” I find that the comment that the applicant appeared not to be responding to treatment is specific to her, without stating any specific details about her condition. Such a denial does not constitute medical reasons. Accordingly, the denial does not comply with s. 38(8) of the Schedule. The October 8, 2021 denial, however, does provide medical reasons specific to the applicant and, therefore, meets the requirements for a denial of a treatment plan in the Schedule.
34As the respondent failed to comply with s. 38(8) until October 8, 2021, it is liable for paying for any treatment incurred under the disputed treatment plan from August 5, 2021 to October 8, 2021.
The Cost of Assessments
The applicant is not entitled to a concussion assessment
35The applicant’s claim for $2,726.48 for other goods and services of a medical nature from Optimal Assessment Health Centre proposed in a treatment plan/OCF-18 (“plan”) submitted December 7, 2020 is apparently a claim for a concussion assessment and not medical treatment. According to the respondent’s denial letter dated December 22, 2020, the treatment plan was prepared by James Fung, a chiropractor on December 7 and submitted on December 8, 2020.
36The respondent is required to pay for all reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan or for preparing a disability certificate under s. 25 of the Schedule. The test for entitlement to the cost of an examination does not require the applicant to prove that he has a psychological impairment caused by the accident. It is whether there is a possibility that he has a psychological impairment caused by the accident. If so, the applicant must show on a balance of probabilities that an assessment is necessary under s. 25 of the Schedule for the review of or preparation of a disability certificate or treatment plan and that the fees charged for that assessment are reasonable.
37Under s. 25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Professional Services Guideline”). Under s. 25(5)(a) an insurer is not required to pay more than $2,000 plus HST for an assessment.
38Section 38(11) does not apply to this treatment plan because the respondent’s denial letter of December 22, 2020, which is the same letter as discussed in paragraph 28 above, complies with s. 38(8) of the Schedule for the reasons already given.
39The applicant made the same submissions with respect to this treatment plan as she did for the November 26, 2020 treatment plan for $1,381.81 for assistive devices from Optimal Assessment Health Centre. She submits the treatment plan is payable because the respondent did not provide Dr. Mohammed &****
40I do not have a copy of the treatment plan and, therefore, I am unable to determine the reasons why it was proposed, who was to conduct it and whether they were qualified to do so, why and whether the fees charged were reasonable and within the $2,000.00 limit under s. 25(5)(a) of the Schedule. It is not clear why a chiropractor would require a concussion assessment. Given that there is no evidence before me to support why a concussion assessment might be necessary, this claim is dismissed.
The applicant is entitled to the cost of a chronic pain assessment
41The applicant is seeking entitlement to $3,051 for other goods and services of a medical nature proposed by Dr. Michael Gofeld in a treatment plan/OCF-18 (“plan”) submitted November 18, 2020, denied on February 22, 2021. The respondent submits that the claim is actually for the cost of a chronic pain assessment, not medical treatment, and that it approved $2,825.00 of the assessment. The applicant submits she was not provided with a copy of the treatment plan and, accordingly, does not know why $226.00 of the assessment was denied.
42The respondent advised the applicant in its February 22, 2021 denial letter that the claim for the assessment was $3,052.00 and that the maximum payable under s. 25(5)(5)(a) of the Schedule was $2,000.00. However, that does not explain why $2,825.00 was approved given that it exceeds the maximum payable in s. 25(5)5(a) of the Schedule. Without the production of the treatment plan in dispute or an explanation of what was being denied, I am unable to determine why the entire treatment plan was not approved.
43In its submissions, the respondent states that what was denied were transportation fees and translation services on the basis that the schedule does not require payment of any additional expenses over and above the cost of the assessment and HST. This was not explained in the denial letter. If it was, the applicant would have had enough information to determine whether or not to challenge the denial. Accordingly, s. 38(11) applies.
44The respondent has provided no evidence of when it received the treatment plan. The respondent is required to pay any expenses the applicant incurred under the treatment plan from the 11th business day it was submitted to date.
The applicant is not entitled to a neurological assessment
45The applicant’s claim for $3,051 for other goods and services of a medical nature from Optimal Assessment Health Centre submitted March 30, 2021, denied on April 12, 2021 is, according to the parties, a claim for a neurological assessment. According to the respondent’s April 12, 2021 denial letter, the treatment plan was apparently proposed by Dr. Olga Finlayson on March 30, 2021.
46The respondent provided medical reasons for denying the claim, citing Dr. Mohammed’s report and that she found no evidence of any neurological issues. The denial letter was sent within ten business days of the date of the treatment plan. Accordingly, the denial was made in time. Accordingly, s. 38(11) does not apply to this treatment plan. The respondent submits that the treatment plan is payable because Dr. Kennedy’s clinical notes and records were not provided to Dr. Mohammed to do an addendum IE report. As noted earlier, there is no authority for this proposition in the Schedule.
47The only submission that the applicant made with respect to her request for a neurological assessment is that the respondent chose not to seek any further medical review from Dr. Mohammed or defer to the opinion of any other medical specialist. The evidence is that the applicant has already been seen by two neurologist, Dr. Kingston, who provided a number of recommendations, and Dr. Daniel Wong, who thought the headaches were musculoskeletal in origin. There is no evidence as to why another neurologist’s input is required for the preparation of a treatment plan. The applicant has made no submissions on the reasonableness and necessity of the treatment plan. Nor was a copy of the treatment plan before me. Accordingly, for the same reasons as set out in paragraphs 30, 31 and 40 above, this claim is denied.
The applicant is entitled to interest on any overdue benefits
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest in accordance with the Schedule on any expenses listed in the $3,051 treatment plan of Dr. Gofeld for a chronic pain assessment incurred from the 11th business day it was submitted, for any expenses listed in the $1,317.73 treatment plan dated July 13, 2021 of Binda Chaulagain for physiotherapy and massage therapy incurred from August 5, 2021 to October 8, 2021, and for any expenses over and above the $1,947.08 approved listed in the $2,017.08 treatment plan dated July 14, 2020 of John Haluskay incurred from the 11th business day after the treatment plan was received.
ORDER
49The applicant is entitled to the following:
i. Any expenses over and above the $1,947.08 approved listed in the $2,017.08 treatment plan dated July 14, 2020 of John Haluskay incurred from the 11th business day after the treatment plan was received;
ii. Any expenses listed in the $3,051 treatment plan of Dr. Gofeld for a chronic pain assessment incurred from the 11th business day it was submitted to date;
iii. Any expenses listed in the $1,317.73 treatment plan dated July 13, 2021 of Binda Chaulagain for physiotherapy and massage therapy incurred from August 5, 2021 to October 8, 2021; and
iv. Interest on the above in accordance with the Schedule.
50The remainder of the claims as follows are dismissed:
i. The claim for attendant care benefits is dismissed;
ii. The claim for $1,381.81 for assistive devices from Optimal Assessment Health Centre proposed in a treatment plan dated November 26, 2020 is dismissed;
iii. The claim for $2,726.48 for a concussion assessment at Optimal Assessment Health Centre proposed in a treatment plan/OCF-18 dated December 7, 2020 is dismissed; and
iv. The claim for $3,051 for a neurological assessment at Optimal Assessment Health Centre proposed in a treatment plan submitted March 30, 2021 is dismissed.
Released: December 8, 2023
Deborah Neilson
Adjudicator