Bano v. Certas Home and Auto, 2023 CanLII 40122

Citation: Bano v. Certas Home and Auto, 2023 ONLAT 20-006374/AABS

Licence Appeal Tribunal File Number: 20-006374/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:

Farkhunda Bano Applicant

and

Certas Home and Auto Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Rizwan Wancho, Paralegal For the Respondent: Brendan Sheehan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Farkhunda Bano (“F.B.”), the applicant, was involved in an automobile accident on July 22, 2107, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Certas, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2Is F.B. barred from proceeding with her claim for non-earner benefits (“NEBs”) and a treatment plan (OCF-18) submitted on February 5, 2018, and denied on February 8, 2019, listed below as issues 3 (i) and (ii), as she failed to commence her application within two years after Certas’ refusal to pay the amounts claimed?

ISSUES

3The issues in dispute are:

i. Is F.B. entitled to an NEB in the amount of $185.00 per week from August 22, 2017 to date and ongoing?

ii. Is the medical benefit in the amount of $483.63 for assistive devices, recommended in an OCF-18 submitted on February 5, 2018, and denied February 8, 2018, reasonable and necessary?

iii. Is the medical benefit in the amount of $2,049.18 for psychological assessment, recommended in an OCF-18 submitted September 10, 2018, and denied September 18, 2018, reasonable and necessary?

iv. Is the cost of examination expense in the amount of $2,200.00 for a physiatry assessment, recommended in an OCF-18 submitted September 21, 2018, and denied September 29, 2018, reasonable and necessary?

v. Is the medical benefit in the amount of $3,042.64 for psychological services, recommended in an OCF-18 submitted January 3, 2019, and denied January 11, 2019, reasonable and necessary?

vi. Is the medical benefit in the amount of $2,925.00 for chiropractic services, recommended in an OCF-18 submitted July 30, 2019, and denied August 9, 2019, reasonable and necessary?

vii. Is F.B. entitled to payment in the amount of $130.00 for completion of a Disability Certificate (OCF-3) submitted on November 4, 2018?

viii. Is F.B. entitled to interest on overdue payments of benefits?

ix. Is F.B. entitled to an award under Ontario Regulation 664 because Certas unreasonably withheld or delayed the payment of benefits?

RESULT

4F.B. is barred from proceeding with her claim for NEBs and the OCF-18 for assistive devices, as she failed to commence her application within two years after Certas’ refusal to pay the amounts claimed.

5F.B. has demonstrated that the OCF-18s for the physiatry assessment and chiropractic treatment are reasonable and necessary. Interest is payable.

6The remaining OCF-18s are not reasonable and necessary and no interest or an award is payable.

7F.B. is entitled to an award in the amount of 10 percent of the total for the OCF-18s that are payable. Interest is payable.

BACKGROUND

8In order to provide context in addressing the disputed NEB claim, a timeline is necessary:

i. August 1, 2017 – Disability Certificate – OCF-3 submitted, indicating a complete inability to carry on a normal life (which is denied by F.B.);

ii. Reasons for denial of the NEB claim were based on s. 44 insurer examination reports dated October 16-27, 2017;

iii. November 22, 2017 – Notice of a denial of the NEB claim provided by Certas;

iv. September 4, 2018 – Second OCF-3 submitted again indicating a complete inability to carry on a normal life;

v. November 15, 2018 – Explanation of benefits again denying entitlement to NEBs.

9The following is a timeline of events regarding the February 5, 2018 OCF-18 in dispute and subsequent filing of the Tribunal application:

i. February 8, 2018 – initial notice responding to the February 5, 2018 OCF-18, denying the benefit;

ii. May 9, 2018 – subsequent notice in response to February 5, 2018 OCF-18 following receipt of the November 2017 s. 44 report, maintaining denial of the benefit;

iii. February 3, 2020 – Tribunal application sent to Certas and receipt of same confirmed. Also sent to the Tribunal, however, the facsimile transaction to the Tribunal was not successful transmitted;

iv. May 29, 2020 – Tribunal application resent to the Tribunal, when it was discovered that the initial attempt was unsuccessful. Receipt of same confirmed; and

v. June 4, 2020 – Tribunal application process commenced.

ANALYSIS

F.B. is barred from proceeding with her NEB claim

10Section 56 of the Schedule provides that a proceeding under s. 280 of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. F.B. has failed to commence the proceeding within two years after Certas’ denial.

11F.B. submits that she applied for a NEB via an OCF-3 dated September 4, 2018, which was denied by Certas on November 23, 2018. As per Certas’ notice, the reasons for denial were based on s. 44 insurer examination reports dated October 16-27, 2017. The s. 44 reports concluded that F.B. did not suffer a complete inability to carry on a normal life, and is therefore not entitled to receive a NEB.

12F.B.’s position is that, although the initial filing of her Tribunal application was unsuccessful (as a result of a failed facsimile transmission), it was resent May 29, 2020, and the June 4, 2020 date that the Tribunal opened the Tribunal application should be the relevant date for the time period. Further, she submits that, March 16, 2020 should be the date of the Tribunal application because that is the date the limitation period in Ontario was suspended due to the occurrence of the COVID-19 pandemic.

13I disagree with F.B. on her NEB claim.

14First, the August 2017 OCF-3 indicated a complete inability to carry on a normal life. Certas was within its right to deny the benefit based on the results of the October 2017 s. 44 reports. I find there were no deficiencies with Certas’ denial, and as such, the two-year limitation period (which F.B. was made aware of in the notice letter) began to run when Certas advised her of the denial in its November 22, 2017 notice letter. Second, calculating the two-year limitation period based on the above, would mean that F.B. had a deadline of November 22, 2019 to dispute Certas’ denial of the NEB. Lastly, F.B.’s application to the Tribunal does not start the limitation period process. Once an application has been submitted to an insurer, thus begins the countdown on the limitation period. Filing an application with the Tribunal notifies the Tribunal of a claims dispute, but this is separate from the provisions under s. 56 of the Schedule.

15The August 2017 OCF-3 indicated that F.B. suffered a complete inability to carry on a normal life. Therefore, Certas obtained an opinion to determine if F.B. qualified for same. Having obtained opinions that did not affirm her claim, Certas issued a proper denial on November 22, 2017. There is no recourse as a result of the COVID-19 extension that applies in this proceeding that applies in this proceeding since the COVID-19 extension began on March 16, 2020 or more than two years after Certas’ denial.

16F.B. makes an argument regarding the Tribunal’s ability to exercise its discretion using section 7 of the Licence Appeal Tribunal Act, 1999 S.O. 1999, c. 12, Sched. G (LAT Act) to extend the limitation period. However, I find the circumstances of the filing of F.B.’s’s application do not warrant consideration under s. 7.

17Section 7 of the LAT Act allows the Tribunal statutory discretion to extend the time for commencing a proceeding in certain circumstances if it is satisfied that there are reasonable grounds for applying the extension and granting the relief sought. In order to determine whether an extension of time is granted, the Tribunal weighs four factors: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal. The granting of an extension of time depends on the specific facts of each case.

18The necessary step of filing her application and making Certas aware of her claim, took place on February 4, 2020. This is the necessary step to commence the dispute process over entitlement to benefits. Regardless of when the Tribunal received her application to commence her dispute, it is clear that Certas received the completed application (in accordance with s. 36 of the Schedule) on August 1, 2017 with the election for NEB being indicated in the initial OCF-3. Certas responded to the completed application with its October and November 2017 denials. There are no grounds to consider the s. 7 limitation period extension on these grounds.

19I have determined that the two-year limitation period deadline was November 22, 2019, and F.B.’s application was filed with Certas on or about February 4, 2020. Further, Certas issued a proper denial on November 23, 2017 responding to the applicant’s NEB claim. As such, the section 56 limitation period in the Schedule was passed by almost three months. Accordingly, F.B. missed the deadline to apply for the NEB and is therefore barred from proceeding with her NEB claim.

F.B. is barred from proceeding with her claim for the February 5, 2018 OCF-18

20F.B. failed to commence her claim within the two-year limitation period.

21F.B. submits that while an initial denial was provided on February 8, 2018, it’s the subsequent May 9, 2018 denial based on a s. 44 report, that should “start the clock” on the limitation period.

22In response, Certas argues that the February 8, 2018 denial was sufficient to trigger the start of the two-year limitation period. It posits that the notice advised of the denial and that it required her to attend a s. 44 insurer examination, in accordance with s. 38 of the Schedule.

23I agree with Certas that the initial denial, which was provided in accordance with s. 38 of the Schedule, triggered the limitation period, beginning February 8, 2018.

24Even if I accept F.B.’s argument that the subsequent May 9, 2018 denial was the formal denial that commenced the limitation period, her own evidence confirms that the limitation period has expired. F.B. argued that her application was not submitted to the Tribunal until May 29, 2020 and the Tribunal opened the application on June 4, 2020. As such, using F.B.’s timelines, the limitation period, at the earliest, expired May 9, 2020. The date of which is earlier than the May 29, 2020 and June 4, 2020 dates that F.B. tries to rely on for the commencement of her application. Further, the s. 7 extension also does not apply as it pertains to F.B.’s claim regarding submitting her Tribunal application. A facsimile error is not a reasonable ground for an extension under s. 7 of the LAT Act.

25For the reasons above, I find that F.B. is barred from pursuing her claim for the February 5, 2018 OCF-18 for assistive devices. Accordingly, an analysis as to whether the OCF-18 is reasonable and necessary is not required.

Are the OCF-18s for a psychological assessment and psychological treatment reasonable and necessary?

26Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. In all cases, F.B. bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary. To do so successfully, F.B. should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

27I find that F.B. is not entitled to the OCF-18s for a psychological assessment or psychological treatment as she has not established that they are reasonable and necessary.

28F.B. submits that Certas’ denial based on the s. 44 reports was incorrect in that the s. 44 report had been completed almost one year prior to the OCF-18 for psychological treatment was submitted. She further submits that Certas disregarded a September 4, 2018 Disability Certificate (OCF-3) in favour of its October 27, 2017 s. 44 report. Although F.B.’s position appears to be that Certas removed F.B. from the Minor Injury Guideline (the “MIG”) after reviewing the family physician, Dr. Bari’s records, based on his psychological impairment comments and his September 4, 2018 OCF-3, I disagree with this position.

29It is clear to me that F.B. was removed from the MIG on the basis of suffering a fractured wrist. What is not clear, is how any comments from Dr. Bari in his clinical notes and records (CNRs) (i.e.: a sole entry querying post-traumatic stress disorder) amounts to persuasive, objective grounds that support that a psychological assessment or psychological treatment is reasonable and necessary. While she relies on the CNRs of Dr. Bari, I place more weight on her own reporting to the s. 44 assessor, psychologist, Dr. Silverman, about her post-accident psychological well-being. This is especially so, where F.B. reported to Dr. Silverman, that she had not received nor was interested in receiving any psychological treatment.

30For these reasons, I find that F.B. has not demonstrated that the OCF-18s for a psychological assessment and psychological treatment are reasonable and necessary.

Is the OCF-18 for a physiatry assessment reasonable and necessary?

31Similar to the OCF-18s for psychological assessment and services, in order to receive payment for the OCF-18 for a physiatry assessment under the Schedule, F.B. bears the onus of proving on a balance of probabilities that the treatment and assessment plans are reasonable and necessary as a result of the accident. To meet this burden, F.B. should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit. I find that F.B. has met her burden for the physiatry assessment and is therefore entitled to payment and interest on same.

32While F.B. mainly focuses on the alleged errors of the s. 44 reports, she does point out that despite authorizations to collect medical records, Certas did not obtain the hospital records, OHIP summary, or Dr. Bari’s CNRs. I note that the s. 44 orthopaedic assessor, Dr. Ikejiani notes on page 4 of his report, that he did not have the fracture clinic records or x-ray reports from Markham Stouffville Hospital, which he commented would have been important to review for the purposes of an orthopaedic assessment.

33Certas relies on its s. 44 reports from Dr. Ikejiani, Dr. Silverman, and Ms. Pierce, occupational therapist, in support of its determination. I agree with F.B., that the lack of records provided to the assessors, despite authorization for same to be provided, to be problematic. Such an evidentiary deficit does not allow for a fulsome assessment to be conducted, when the medical history is not a part of the consideration. While the assessors may have conducted objective testing to come to their conclusions, not having F.B.’s medical history available for review cannot provide the assessors with the complete health picture of her pre-and post-accident well-being. This is especially the case considering she suffered a wrist fracture as a result of the accident. For these reasons, I place little weight on the s. 44 reports of the three assessors.

34I find there is persuasive evidence that the s. 44 assessor was not able to provide an accurate opinion on due to the lack of key medical records. In failing to review key medical documents, Dr. Ikejiani would have read the numerous pain complaints made by F.B. to Dr. Bari during her numerous visits post-accident due to pain. Further, Dr. Ikejiani would have also read that F.B. made consistent pain complaints to many of her treatment providers and assessors, regarding her wrist fracture, back and neck pain. In addition, I note that F.B. reported that the pain is unmanageable and severe at times, during a June 11, 2018 visit to Dr. Bari. Dr. Bari noted chronic pain and queried post-concussion syndrome, and while not a chronic pain specialist, I am persuaded by the medical evidence that further investigation into the extent of F.B.’s post-accident pain complaints is warranted.

35I find that F.B. has demonstrated that a physiatry assessment is reasonable to recommend or rule out whether her ongoing pain needs to be addressed by way of a course of treatment of a specific or combination of modalities.

Is the OCF-18 for chiropractic services reasonable and necessary?

36As mentioned at paragraphs 24 and 29, the onus is on F.B. to demonstrate that the OCF-18 is reasonable and necessary as set out above.

37F.B. is entitled to the OCF-18 for chiropractic services.

38F.B. relies on the same arguments as those for the other OCF-18s in dispute. Essentially, arguing about the shortcomings of the s. 44 assessors’ reports. While this is not what is required in order to establish that a claim for treatment is reasonable and necessary, I do find her subjective reporting and Dr. Bari’s records again, to be persuasive.

39Certas maintains its position on the denial, as discussed earlier with the s. 44 reports of the three assessors. I will not reiterate my finding regarding the s. 44 report other than to say that I rely on the same reasons as to why little weight was given to the reports.

40It is well-settled that pain relief is a legitimate goal of treatment, and the July 30, 2019 OCF-18 indicates a goal of pain relief. F.B. reported to Dr. Bari and her other treatment providers, that when she has received treatment, she gets relief from pain. As discussed, her ongoing pain complaints are supported by the medical documentation. I find her medical record persuasive, as well as her self-reporting. While the treatment may not return her to her pre-accident level of function, as a means to provide her relief from her post-accident pain, I find this is a reasonable goal of the OCF-18.

F.B. is not entitled to payment of the OCF-3

41F.B. submits that pursuant to s. 25(1)(3) which sets out that an insurer shall pay reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under s. 38, including any assessment or examination necessary for that purpose, if any one or more of the goods, services, assessment or examinations described in the treatment and assessment plan have been deemed by the Schedule to be payable.

42F.B.’s position is that because her alleged psychological impairments worsened, a subsequent OCF-3 was provided, as well as to confirm she suffers a complete inability to carry on a normal life.

43Certas submits that the OCF-3 is not payable as it did not request another OCF-3. I agree.

44F.B. erroneously relies on s. 25 which speaks to treatment and assessment plans, and an OCF-3 is not captured under this definition. Further, under s. 38, there is no provision that pertains to an OCF-3. The OCF-3 is required for the purposes of a ‘complete’ application, however, unless a subsequent OCF-3 is requested by the insurer, any additional OCF-3s may not be payable.

45Further, the initial August 2017 OCF-3 indicated that F.B. suffered a complete inability to carry on a normal life, therefore, there was no need to provide a second OCF-3 that indicated the same complete inability to carry on a normal life. In addition, there are other ways of providing an update on an insured person’s post-accident condition, by way of medical records, that likely would be payable, due to the necessary ongoing adjustment of the file.

46Essentially, F.B. provided a duplicate OCF-3, which was not requested, and is therefore not payable.

Interest

47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. F.B. is entitled to interest on the OCF-18 for a physiatry assessment and chiropractic treatment.

Award

48The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits. In determining the type of conduct for which an award is appropriate, the adopted standard is set out in the FSCO case Plowright v. Wellington Insurance Co. (1993 OIC File No.: A-003985 (FSCO) [“Plowright”]). According to Plowright, the conduct must be found to be an “Unreasonable behaviour by an Insurer in withholding or delaying payments can be seen as behaviour, which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate”. In Plowright, the award was less than 10% of the total benefits.

49Keeping with the standard set out in Plowright, an award should not be ordered simply because an adjudicator determined that an insurer made an incorrect determination. The insurer’s conduct must rise to the level described in Plowright, that is, excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I find that Certas has demonstrated that type of conduct as it pertains to the two OCF-18s I have found to be payable.

50F.B. submits that an award is warranted for several reasons as follows:

i. Certas denied all of the benefits in dispute;

ii. The denials were based on s. 44 reports that were obtained over a year prior to the claimed OCF-18s;

iii. Certas disregarded Dr. Bari’s records;

iv. Certas denied the NEB in spite of the subsequent OCF-3 from Dr. Bari;

v. Prescription costs were denied despite being prescribed and supported by Dr. Bari; and

vi. Certas failed to consider the s. 25 examination reports.

51Regarding issue (i) raised by F.B., I have found that she has demonstrated that two of the claimed benefits are reasonable and necessary. Further, I find that Certas failed to provide the necessary medical documentation to its assessors. In addition, as further medical records were provided, Certas did not endeavour to seek addendums to the initial reports of its assessors, which may have resulted in a different, or at the very least, more recent opinion.

52I do find that a nominal award is appropriate based on Certas’ actions as it pertains to the two OCF-18s that I have found to be reasonable and necessary. An insurer has on ongoing duty to adjust the file, and where there is medical documentation that is material to the determination of the insured person’s entitlement to treatment for ongoing accident-related pain complaints, consideration of such documentation should not be ignored. Certas continued to rely on its s. 44 reports, despite additional medical reports provided, which I find to equate to an inflexible approach to the handling of F.B.’s file.

53As such, I find an award in the amount of 10 percent of the total of the two OCF-18s I have determined are payable is appropriate. I leave it to the parties to determine the actual dollar amount and the total interest payable.

54Regarding the remaining issues raised on her award claim, I do not find that an award is appropriate. F.B. is barred from proceeding with her claims for a NEB and the assistive devices, therefore Certas cannot be found to have unreasonably withheld or delayed payment of those benefits. The remaining disputed benefits were found not to be reasonable and necessary, and therefore not payable. As such, Certas did not unreasonably withhold or delay payment of those benefits.

55Accordingly, I partially grant F.B.’s request for an award, as it pertains to the OCF-18s for a physiatry assessment and chiropractic treatment. Interest is payable in accordance with s. 51 of the Schedule.

ORDER

56F.B. is barred from proceeding with her claim for a NEB and the OCF-18 for assistive devices.

57F.B. is entitled to payment of the OCF-18s for a physiatry assessment and chiropractic treatment. Interest is payable in accordance with s. 51 of the Schedule.

58F.B. is not entitled to funding for the remaining OCF-18s or the OCF-6 in dispute as she has not established that they are reasonable and necessary. No interest is payable.

59F.B. is entitled to an award in the amount of 10 percent of the total of the two OF-18s that are reasonable and necessary, plus applicable interest.