21-004129/AABS

Licence Appeal Tribunal File Number: 21-004129/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:

Que Quan Tran

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Leo Demarce

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

Kevin So, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1Que Quan Tran, the applicant, was involved in an automobile accident on June 10, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2Where more context is required, it is appropriate to include it in the overview section so that the reader has a better understanding of the background informing the dispute. This may include, for example, relevant timelines, novel circumstances, or unique procedural history. It is not necessary to rehash the mechanics of the accident unless it is pivotal to the issue.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $16,712.81 for the cost of examination expense for catastrophic impairment determination assessments, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated December 13, 2019?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

Request is denied

4The applicant’s request for the cost of catastrophic impairment determination examinations in the amount of $16,712.81 is denied.

5The applicant is not entitled to interest as there are no overdue payments of benefits.

the insurer provided a proper notice of denial

The applicant’s argument – focused on technical issue with the notice of denial

6The applicant relies on section 38(8) of the SABS which states:

i. Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for, and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

7The applicant argues that the respondent failed to provide a valid notice of denial to the applicant. The Insurer’s reason for denial is “This recommendation does not fit with the loss details so I cannot approve it”. The applicant provides the following:

i. Pursuant to section 38(8) of the Schedule, it is respectfully submitted the denial letter of April 9, 2020 is deficient as it failed to provide any medical reasons or reasons in general for the denial of the subject treatment plan.

ii. The Divisional Court, in the decision, Hedley v. Aviva Insurance Company of Canada, confirmed that reasons provided by the insured must be “meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination.” The Applicant submits that the Insurer failed to provide any medical reason in its denial. The Applicant furthers submits that the Insurer reasons fail to be “meaningful” and, in essence, are boilerplate statements. As such, it is respectfully submitted that the Insurer has failed to provide the Applicant with a valid notice.

8The applicant then argues that because the notice does not provide a meaningful reason that the notice is therefore invalid and should trigger S38(11) of the SABS which states:

i. If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

a. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

b. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8)

9The applicant concludes:

i. The legislation and case law are clear that the consequence of a failure to provide a proper denial is that the Insurer must pay for the benefits in dispute. As a result, the Applicant respectfully submits that as a consequence of its failure to provide proper notice pursuant to section 38(8) of the Schedule, it must pay the disputed treatment plan.

the respondent’s argument – focused on the applicant’s inability to meet their burden of proof

10The respondent argues that the notice of denial provided was adequate to the request made. There was no medical reason provided for the denial of each assessment request because there was no medical correlation between the subject accident and the assessments requested.

11The respondent then argues that it is the applicant’s burden to prove that the assessments are reasonable and necessary:

i. Funding for catastrophic impairment assessments is not automatic. In order to establish entitlement to receive funding for catastrophic impairment assessments, it is now well established that an insured person must establish that each of the proposed assessments is reasonable and necessary. While the Tribunal notes that assessments are speculative by nature, there must be some evidence suggesting that a specified condition to be assessed exists, and that further investigation into that condition is reasonable and necessary. This is to be established by proving persuasive medical evidence, not mere speculation in legal submissions. A suggestion that an insured does not have the means to incur the assessments is not relevant to the analysis.

ii. Certas reiterates that Ms. Tran bears the burden of proving that the catastrophic assessments are reasonable and necessary, and that the fees are reasonable. Entitlement to payment for catastrophic assessments is not absolute.

12The respondent then describes in detail the medical history of the applicant and its relevance to this hearing in this synopsis:

i. As noted above, Ms. Tran is an individual who sustained injuries in a motor vehicle accident in 2009, as well as a slip and fall in 2012. She had been diagnosed with diffuse degenerative issues in her cervical and lumbar spine, with imaging demonstrating worsening issues over time. The evidence does not support a finding that the 2013 accident had a significant impact on these issues, though Certas accepts that a certain degree of exacerbation did occur. Indeed, Certas removed Ms. Tran from the MIG to account for these issues.

ii. In respect of the June 10, 2013 accident, Ms. Tran complained of tinnitus, neck pain, and a general recurrence of old pain symptoms which had been consistently voiced in the preceding years. She mentioned anxiety while driving to work on two occasions, on June 31, 2013 and November 8, 2013. This shows that Ms. Tran sustained some exacerbation of pre-existing degenerative issues as a direct result of this accident, and some situational anxiety that did not prevent Ms. Tran from driving. Her complaints of right-sided neck pain and general back pain were not new complaints, and there is no real evidence that her condition was significantly affected by this accident. Certas also notes that the last OCF-18 submitted on Ms. Tran’s behalf, prior to this OCF-18 for CAT assessments, was submitted on March 4, 2017. This illustrates the inactive nature of this claim, and underscores the fact that CAT assessments are not appropriate

13The respondent then refers to the OCF-18, specifically as to the lack of details provided for the value of the assessments and how they will benefit the applicant:

i. The additional comments section of the OCF-18 provides no detail as to Ms. Tran or her purported medical condition. The additional comments simply list the type of assessments proposed, with no discussion on the nexus between those assessments and Ms. Tran’s case. Indeed, the OCF-18 itself merely serves to underscore the frivolous nature of this request for catastrophic assessments, where there is no evidence to plausibly suggest that Ms. Tran could meet the threshold for CAT under any criterion.

14The respondent then addresses the technical argument raised by the applicant with regards to S38(11) of the SABS:

i. Certas responds to Ms. Tran’s technical argument with respect to section 38(11) of the Schedule. Certas clearly denied the assessment request, noting that the goods and services do not fit with the loss details. None of the evidence provided to date supports Ms. Tran’s request. She clearly had sufficient knowledge about the nature of this denial to initiate the current dispute.

ii. In any case, section 38(11) is only activated in the case of incurred benefits. Ms. Tran has not incurred any of the assessments, so the proposal cannot be found to be payable on the basis of section 38(11). This is not a deemed incurred provision, but requires that the goods and services be incurred in fact. They are not incurred, and are not payable on a technical basis.

15The respondent concludes:

i. Certas notes that Ms. Tran’s entire argument is focused on the technical, with substantive being a mere afterthought. It is clear that Ms. Tran has taken this approach because her substantive claim for CAT assessments has no merit, and should be dismissed.

CONCLUSION

16The applicant has failed to meet their burden of proof that the notice of denial was invalid. The argument relies on the statement that the reason for denial was not meaningful, that the reasons were in fact boilerplate statements, and therefore the insurer failed to provide a valid notice.

17The applicant, however, must first provide the insurer with a reasonable explanation as to why the assessments are required, and how they relate to the accident in question.

18I am most persuaded by the OCF-18 that provides no explanation for the assessments, other than what assessments are to be performed. There is nothing in this document identifying what the underlying reasons are, how they relate to the accident in question, and what the benefits and expected outcomes will be.

19The insurer states that they “clearly” denied the assessment request, noting that “the goods and services do not fit with the loss details”. I find that this statement is more than adequate in describing why the request is denied. I find it to be far more meaningful than the reasons provided for the request for the assessments, as there were none provided.

Interest is not due as the request is denied

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest does not apply as there is no overdue benefit to be paid.

ORDER

21The applicant is not entitled to $16,712.81 for the cost of examination expense for catastrophic impairment determination assessments, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated December 13, 2019.

22The applicant is not entitled to interest on any overdue payment of benefits.