Licence Appeal Tribunal File Number: 21-006980/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:
Melinda Persaud
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Erin Neal, Counsel
For the Respondent:
Kevin Temple, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Melinda Persaud (the “applicant”) was involved in an automobile accident on February 27, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by TD General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
- Is the applicant entitled to the assessments proposed by GLA Rehab Inc., as follows:
a. $7,060.57 for occupational therapy services, in a treatment plan dated December 1, 2020, and denied on December 9, 2020;
b. $354.30 for other assistive devices in a treatment plan dated December 1, 2020, and denied on December 9, 2020;
c. $2,200.00 for a social work assessment in a treatment plan dated January 18, 2022, and denied on February 10, 2022;
d. $7,697.06 for rehab therapy in a treatment plan dated January 18, 2022, and denied on February 10, 2022;
e. $4,200.00 for an FAE assessment in a treatment plan dated January 18, 2022, and denied on February 10, 2022;
f. $4,200.00 for a vocational assessment in a treatment plan dated January 18, 2022, and denied on February 10, 2022; and
g. $6,085.00 for occupational therapy services in a treatment plan dated January 18, 2022, and denied on February 10, 2022?
Is the applicant entitled to a SPECT scan proposed by IScope in the amount of $2,200.00 in a treatment plan dated January 31, 2022, and denied on March 9, 2022?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find that:
The applicant is not entitled to the disputed treatment plans.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
ANALYSIS
The Treatment Plans
4To receive payment for the disputed treatment plans under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are 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.
5Where an insurer has not properly denied a treatment and assessment plan in accordance with s. 38 of the Schedule, the benefit becomes payable. Section 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decision. Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) of the Schedule, which includes the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.
6In accordance with s. 20(1)(a) of the Schedule, no medical, rehabilitation, or attendant care benefit is payable for expenses incurred more than 260 weeks after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident. Section 20(2) states that this time limit does not apply in respect to an insured person who sustains a catastrophic impairment as a result of the accident or who is entitled to optional benefits.
7Section 3(7)(e) of the Schedule provides that expenses are not incurred by an insured person unless: (i) they have received the goods or services to which the expense relates; (ii) they have paid the expense, have promised to pay the expense, or are otherwise legally obligated to pay the expenses; and (iii) the person who provided the goods or services (a) did so in the course of the employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or (b) sustained an economic loss as a result of providing the goods or services to the insured person.
8Section 3(8) of the Schedule further provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.
9The applicant submits that the respondent is required to pay for the disputed treatment plans pursuant to s. 38(11) of the Schedule because the respondent failed to deny the treatment plans within 10 days. Further, the denial letters did not provide medical reasons as required by s. 38(8) of the Schedule. The applicant relies on T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39376 (ON LAT) and Pirzada v. Aviva Insurance, 2022 CanLII 35810 (ON LAT).
10The applicant indicates that she sustained injuries including a broken tooth, concussion with post-traumatic headaches, whiplash, sprain/strain of left knee, sprain/strain of lumbar spine, sprain/strain of left shoulder, and anxiety as a result of the accident, and she submits that her medical records support a finding that the treatment plans are reasonable and necessary.
11The applicant relies on a Disability Certificate dated March 13, 2017, an Ambulance Call Report, the clinical notes and records (“CNRs”) of Dr. William Cecutti (her family physician), Dr. Steven Margolian (dentist), Dr. Ronald Wilson (neurologist), Dr. Andrew Gomez-Vargas (neurologist), Dr. Alfonse Marchie (physiatrist), Linda Johnson (neurology nurse practitioner), Ajax Rehabilitation, Whitby Physiotherapy, and GLA Rehab, prescription summaries, various reports completed by Lisa Hung (occupational therapist), Hadassah Lebovic (occupational therapist), and Dr. Steve Blitzer (family medicine physician), as well as various diagnostic imaging reports.
12The applicant further submits that all the treatment plans in dispute were submitted to the respondent within 260 weeks after the accident, and a treatment plan does not need to be incurred pursuant to s. 3(7)(e) of the Schedule for it to be payable. The applicant relies on s. 3(8) of the Schedule and Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200.
13In response, the respondent submits that all denial letters were provided within 10 business days of the date the treatment plans were submitted in accordance with s. 38(8) of the Schedule. Further, the respondent argues that it is sufficient to provide other reasons when denying a treatment plan as medical reasons are not always necessary for a denial to be compliant. The respondent relies on Varriano v. Allstate Insurance, 2023 ONCA 78.
14The respondent further submits that the applicant has not provided sufficient evidence from a physician or a neuropsychologist that she has ongoing cognitive impairment as a result of the accident or that she requires treatment as a result of the accident. The respondent notes that the medical evidence relied upon by the applicant fails to make a distinction between the applicant’s accident-related injuries and her unrelated or pre-existing medical conditions.
15The respondent relies on an insurer examination general practitioner report dated May 3, 2021 completed by Dr. Maria Nesterenko (family medicine physician) and an insurer examination occupational therapy report dated May 3, 2021 completed by Arash Sasani (occupational therapist). It also relies on Sabadash v. State Farm et al., 2019 ONSC 1121.
16The respondent also submits that the treatment plan for the SPECT scan is not payable pursuant to s. 20 of the Schedule as it was not incurred pursuant to s. 3(7)(e) of the Schedule within 260 weeks from the accident. Further, the applicant has not demonstrated that the treatment plan should be deemed incurred under s. 3(8) of the Schedule. It relies on Pucci v. Wawanesa, 2020 ONCA 265.
17For the reasons that follow, I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plans are payable under s. 38(11) of the Schedule, that the treatment plans are reasonable and necessary, or that the SPECT scan is payable under the Schedule.
The disputed treatment plans are not payable under s. 38(11) of the Schedule
18I find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans are payable pursuant to s. 38(11) of the Schedule.
19I do not agree with the applicant’s submissions that the respondent denied the treatment plans after the 10-day deadline. Rather, I find that the evidence supports that the respondent denied the treatment plans within 10 business days after they were submitted in accordance with the Schedule.
20Further, I am not persuaded by the applicant’s submissions that the respondent’s denial letters are not compliant with s. 38(8) of the Schedule.
21At paragraph 19 of T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39376 (ON LAT), the Tribunal reiterated the comments in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) and indicated as follows:
In my view, an insurer satisfies its obligation to provide its “medical and any other reasons”, whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, 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. Ultimately, 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. Only then will the explanation serve the Schedule’s consumer protection goal.
22I have reviewed the respondent’s denial letters, and I find that the reasons provided clearly identify medical reasons, including specific details about the applicant’s condition forming the basis of the respondent’s decision, or information about the applicant’s condition that it does not have but requires to make a determination of whether the treatment plan is reasonable and necessary. Moreover, the reasons provided are sufficient to allow the applicant to make an informed decision to either accept or dispute the respondent’s decision. The medical and other reasons contained in the respondent’s denial letters are consistent with the Schedule and M.B. v. Aviva Insurance Canada.
23Accordingly, the applicant has failed to establish that the treatment plans are payable pursuant to s. 38(11) of the Schedule.
$7,060.57 for occupational therapy services and $354.30 for assistive devices are not reasonable and necessary
24I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated December 1, 2020 in the amount of $7,060.57 for occupational therapy and the treatment plan dated December 1, 2020 in the amount of $354.30 for assistive devices are reasonable and necessary.
25The plan for occupational therapy proposes rehab therapist services twice per week to help facilitate cognitive tasks, daily schedule, return to productive activity, and finding a meaningful daily routine and to augment occupational therapy intervention. The functional goal of the treatment plan is to return to activities of normal living.
26The plan for assistive devices proposes an ObusForme back support and seat cushion to improve the applicant’s sitting tolerance/posture, an automatic jar opener to ease opening jars/lids, a Dycem for non-slip surface to ease stirring tasks, and an anti-fatigue mat to increase the applicant’s standing tolerance in the kitchen. The functional goal is to return to activities of normal living.
27I find that there is insufficient evidence to support that the applicant requires assistance with cognitive tasks, daily schedule, return to productive activity, finding a meaningful daily routine, and achieving occupational therapy goals. Although the applicant was diagnosed with a concussion with post-concussive syndrome by both Dr. Ronald Wilson and Dr. Andrew Gomez-Vargas on June 20, 2017 and on July 11, 2017 respectively, there is a gap in the applicant’s medical evidence from September 2017 to April 2020. No medical records have been tendered for this period of time that support that the applicant continued to experience cognitive difficulties or functional limitations as a result of the accident. Rather, the evidence supports that the applicant commenced a new employment in September 2017 and that she took a leave from work from July 2019 to March 2021 due to her endometriosis and her hysterectomy.
28Moreover, the applicant was assessed by Dr. Nesterenko on January 14, 2021. Dr. Nesterenko noted that the applicant had already had the benefit of a formal facility based physical rehabilitation, and in her opinion, the applicant had achieved maximum therapeutic benefit from such care. Further, in the absence of any ongoing objective musculoskeletal impairment attributable to the accident-related injuries, there would be no clinical indication for any therapeutic or assistive devices, or for any occupational therapy or rehabilitation therapy related treatment. Based on her clinical assessment and her review of the applicant’s file, Dr. Nesterenko found that the treatment plans were not reasonable and necessary.
29The applicant was also assessed by Mr. Sasani on April 21, 2021. During the functional assessment, no cognitive issues were noted. The applicant demonstrated no difficulty sitting, standing, and walking, no restriction in her range of motion, and no weakness in her range of motion and strength. The applicant further demonstrated adequate range of motion and functional abilities to complete her self-care, activities of daily living, and instrumental activities of daily living tasks. Based on his objective and subjective findings, Mr. Sasani concluded that the applicant did not require the interventions and services of an occupational therapist, a rehabilitation therapist, or the provision of any assistive devices. Mr. Sasani found that the treatment plans were not reasonable and necessary.
30As such, I find that the applicant has not proven that the treatment plans are payable.
$2,200.00 for a social work assessment is not reasonable and necessary
31I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated January 18, 2022 for a social work assessment in the amount of $2,200.00 is reasonable and necessary.
32The plan proposes a social work assessment to address the applicant’s emotional impairments, including social isolation, low mood, lack of inner drive, fears, and anxiety, and to address her ability to manage stress in the workplace and her self-confidence in relation to her cognitive difficulties meeting workplace demands. The functional goals are to help increase the applicant’s daily function and to participate in activities.
33I find that there is insufficient evidence to support that the treatment plan is reasonable and necessary. As noted by the respondent, a treatment plan dated June 25, 2021 for an extensive psychological assessment was previously approved. The approved plan contained the exact same goals as the proposed treatment plan for a social work assessment. Further, the applicant has already undergone a psychological assessment with Dr. Denise Milovan, who completed a psychological report dated February 22, 2022.
34As such, I find that the applicant has not proven that the treatment plan is payable.
$7,697.06 for rehab therapy services is not reasonable and necessary
35I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated January 18, 2022 in the amount of $7,697.06 for rehab therapy services is reasonable and necessary.
36The plan proposes rehab therapist services to help the applicant achieve occupational therapy goals related to cognition, to return to a meaningful routine, to ensure that cognitive exercises are practiced more regularly, to extend occupational therapy treatment strategies into community-based settings, to help her complete a physiotherapy prescribed exercise program at home, and to plan for a social work assessment. The goals of the treatment plan are to increase strength and to help the applicant return to activities of normal living.
37I find that the treatment plan is not reasonable and necessary. As indicated above, there is insufficient evidence to support that the applicant requires assistance with cognitive tasks or further facility-based treatment. Further, the evidence supports that the applicant’s functional abilities are adequate.
38As such, I find that the applicant has not proven that the treatment plan is payable.
$4,200.00 for a FCE assessment and $4,200.00 for a vocational assessment are not reasonable and necessary
39I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated January 28, 2022 for a functional capacity evaluation in the amount of $4,200.00 or the treatment plan dated January 28, 2022 for a vocational assessment are reasonable and necessary.
40The first treatment plan proposes a functional capacity evaluation and a cognitive functional capacity evaluation to collect data regarding the applicant’s physical and cognitive abilities to perform her job. The functional goal of the treatment plan is to return to activities of normal living.
41The second treatment plan proposes a vocational assessment to determine the applicant’s realistic potential and overall employability. The functional goal is to return to activities of normal living.
42I find that there is insufficient evidence to support that these treatment plans are reasonably required as a result of the accident. As indicated above, the evidence supports that the applicant’s functional abilities are adequate.
43I further find that there is no causal connection between the applicant’s ability to perform her job and her accident-related injuries. Although the applicant initially took some time off work following the accident, she asserts that she returned to work for the period of March 2017 to May 2017. While the applicant submits that she resigned from her employment in May 2017 due to pain symptoms, according to the CNRs of Dr. Cecutti, the applicant’s employment was terminated by her employer. The applicant subsequently started a new job in September 2017. When she took a leave of absence for the period of July 2019 to March 2021, as indicated above, this leave was due to an unrelated medical condition.
44Additionally, the cost of each treatment plan is not reasonable and necessary as it exceeds the $2,000.00 limit prescribed by s. 25(5)(a) of the Schedule.
45As such, I find that the applicant has not proven that either plan is payable.
$6,085.00 for occupational therapy services is not reasonable and necessary
46I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated January 18, 2022 for occupational therapy services in the amount of $6,085.00 is reasonable and necessary.
47The treatment plan proposes occupational therapy services to provide cognitive rehabilitation. The goal of the treatment plan is to increase daily function and participation in daily activities.
48As indicated above, I find that there is insufficient evidence to support that the applicant requires assistance with cognitive tasks. Further, the evidence supports that the applicant’s functional abilities are adequate.
49As such, I find that the applicant has not proven that the treatment plan is payable.
$2,200.00 for a SPECT scan is not payable pursuant to s. 20 of the Schedule
50I find that the applicant failed to demonstrate, on a balance of probabilities, that the treatment plan dated January 31, 2022 for a SPECT scan in the amount of $2,200.00 is payable under the Schedule.
51I find that the treatment plan was not incurred within 260 weeks after the accident as required under s. 20 of the Schedule. Further, the treatment plan is not payable as it was submitted to the respondent beyond 260 weeks after the accident.
52The accident took place on February 27, 2017. At the time of the accident, the applicant was 42 years old. There has been no determination that she sustained a catastrophic impairment, nor evidence that she purchased optional benefits. By operation of s. 20(1)(a) of the Schedule, the last day that the applicant could have claimed incurred expenses for the accident was February 21, 2022.
53Although the treatment plan was prepared on January 31, 2022, it was not submitted to the respondent until February 25, 2022. Given that the treatment plan was submitted after the February 21, 2022 deadline, it is not payable pursuant to s. 20 of the Schedule as no expenses are payable beyond 260 weeks.
54Accordingly, I find that the applicant is not entitled to the treatment plan as there is no coverage under s. 20(1)(a) of the Schedule.
Interest
55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
Award
56Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As the applicant has been found to not be entitled to the treatment plans in dispute, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.
ORDER
57For the reasons outlined above, I find that:
The applicant is not entitled to the disputed treatment plans.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
58The application is dismissed.
Released: December 19, 2023
Ludmilla Jarda
Adjudicator