Citation: Saied v. Intact Insurance Company, 2023 ONLAT 21-003295/AABS

Licence Appeal Tribunal File Number: 21-003295/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:

Ehab Saied

Applicant

and

Intact Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Rajiv Kapoor, Paralegal

For the Respondent:

Hiba Fasih, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ehab Saied, the applicant, was involved in an automobile accident on January 31, 2019, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are as follows:

i. Is the applicant entitled to $226.97 ($1,335.28 less $1,108.31 approved) for chiropractic services recommended by Novo Medical Services Inc. in a treatment plan submitted on May 7, 2019 and denied on May 21, 2019?

ii. Is the applicant entitled to $2,534.16 for chiropractic services recommended by Novo Medical Services Inc. in a treatment plan submitted on July 2, 2019 and denied on July 15, 2019?

iii. Is the applicant entitled to $2,377.42 for chiropractic services recommended by Novo Medical Services Inc. in a treatment plan submitted on September 3, 2019 and denied on September 17, 2019?

iv. Is the applicant entitled to $87.19 ($200.00 less $112.81 approved) for a Disability Certificate prepared by Novo Medical Services Inc. on February 1, 2019?

v. Is the applicant entitled to $2,200.00 for a psychological assessment recommended by Novo Medical Services Inc. in a treatment plan submitted August 20, 2019 and denied on September 6, 2019?

vi. Is the applicant entitled to $2,200.00 for a chronic pain assessment recommended by Novo Medical Services Inc. in a treatment plan submitted December 16, 2019 and denied on January 2, 2020?

vii. Is the applicant entitled to $1,223.43 for a home exercise program in a treatment plan submitted on December 18, 2019 and denied on January 2, 2020?

viii. Is the applicant entitled to interest on overdue amounts?

ix. Is the applicant entitled to an award under s. 10 of O. Reg. 664?

x. Is the applicant entitled to $1,000.00 in costs from the respondent?

3The issue of whether the applicant’s injuries are predominantly minor pursuant to s. 3 of the Schedule is no longer in dispute.

RESULT

4The applicant is entitled to the following:

i. $1,645.71 for the cost of the psychological assessment.

ii. Interest on the cost of the psychological assessment, pursuant to s. 51 of the Schedule.

5The applicant is not entitled to the remainder of the issues in dispute.

ANALYSIS

Summary of Medical Evidence

6Prior to the accident, the applicant visited his family physician, Dr. Mansour, for back pain on October 16, 2018. He was diagnosed with mechanical back pain, and was advised to avoid activity causing pain, do stretching exercises, receive physiotherapy, massage, and acupuncture, and take Tylenol. There are no further pre-accident records pertaining to this back pain.

7The accident occurred on January 31, 2019. An OCF-3 was submitted by Dr. Anjelika Alechina, chiropractor, on February 1, 2019. She listed the following injuries: sprain and strain of cervical, thoracic, and lumbar spine, sprain and strain of left knee, sprain and strain of bilateral ankles, pain in joints and limbs, and chest pain.

8The applicant first visited Dr. Mansour after the accident on February 8, 2019, for a cough and fever. The accident was not mentioned. On May 2, 2019, Dr. Mansour noted that the applicant was rear-ended in January, and he was still having back pain. Dr. Mansour recommended Naproxen, Cyclobenzaprine, rest, and for the applicant to return to see him if he hadn’t improved in a week.

9The applicant was assessed by Dr. Eric Silver, family physician, pursuant to s. 44 of the Schedule, on July 23, 2020. Dr. Silver noted that the applicant stopped using prescription medications and stopped attending physical therapy in 2019. At the time of the assessment, the applicant was applying Voltaren cream to his back and shoulders a few times per week. He used Advil two to three times per month when needed. His back pain occurred a few times per week, lasting approximately 15 minutes each. Dr. Silver opined that the applicant sustained uncomplicated soft tissue injuries to his lower back as a result of the accident. He did not believe that clinic-based therapy was reasonable or necessary.

10On August 10, 2020, the applicant underwent a s. 44 assessment with Dr. Shari Schwartz, psychologist. He told Dr. Schwartz that he sometimes feels pain in his back or shoulders. He had resumed his pre-accident housekeeping and childcare activities, and was fully independent with regard to self-care. He stated that he did not think he needed psychological counselling and that he did not want any. Dr. Schwartz’s psychological testing did not show elevated scores with respect to symptoms of depression, anxiety, or somatization. There was no diagnosis to be made.

11The applicant was involved in a subsequent motor vehicle accident on August 30, 2020. Prior to that, he had not returned to visit Dr. Mansour.

12The applicant was assessed by Dr. Leon Steiner, psychologist, on October 9, 2020. Dr. Steiner noted that the applicant’s injuries were exacerbated by the August 2020 accident. He indicated that the applicant is unable to perform his usual household chores. He had nightmares and anxiety in a vehicle. Dr. Steiner diagnosed Specific Phobia – Situational Phobia, and recommended 12-16 sessions of psychotherapy.

13Dr. Schwartz conducted a paper review on February 21, 2021 after receiving the report of Dr. Steiner. She stated that there had been an elevation in the applicant’s psychological symptoms since her previous assessment, and recommended six sessions of psychotherapy to treat those symptoms.

14Dr. Mansour referred the applicant for an x-ray of his lumbar spine in December 2020, which identified multilevel mild osteophytosis. The next time he visited Dr. Mansour was on February 2, 2021. Dr. Mansour’s note states “MRI requested for insurance purposes”, “MVA last Aug”, and “aggravated low back pain since then and shooting pain to the right leg more than the left.” There is no copy of the MRI report in evidence. He visited Dr. Mansour again for back pain on April 24, 2021, and was still experiencing shooting pains down his left leg. On July 16, 2021, Dr. Alshaar, a physician at Dr. Mansour’s office, noted that the applicant was experiencing chronic low back pain with intermittent flareups. Dr. Mansour prescribed Naproxen and Baclofen. There are no further records from Dr. Mansour or his office with respect to the applicant’s accident-related injuries.

Chiropractic Services and Home Exercise Program – Issues (i), (ii), (iii), and (vii)

15To receive payment for a treatment and assessment plan under s. 15 and 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.

16The applicant does not make specific submissions with respect to whether each of the chiropractic treatment plans in dispute, or the treatment plan for the home exercise program, are reasonable and necessary. He argues, somewhat confusingly, that the treatment plans in dispute were already recommended by his family physician prior to the accident, and that the accident aggravated his pre-existing back pain and caused new injuries. The applicant states generally that his doctors recommended engaging in physiotherapy, stretching, acupuncture, massage therapy, pain management, and avoidance of activity causing pain. He further submits that the treatment was very helpful to his condition.

17The respondent argues that no records have been provided to substantiate the applicant’s claim that treatment has been beneficial, and that he has not provided any records for any treatment.

18I find that the applicant has not proven on a balance of probabilities that the treatment plans for chiropractic services or a home exercise program are reasonable and necessary. Although the applicant is correct that pain relief is an appropriate goal for treatment, he has not provided any evidence as to whether his pain would be relieved by the proposed treatment, or whether the treatment is warranted. Dr. Mansour recommended physical treatment prior to the accident, but he never recommended it after. Further, the applicant only visited Dr. Mansour once in between the first accident and the second. He was advised to visit Dr. Mansour if his pain did not improve, but did not return until after the second accident. The reports of Dr. Silver and Dr. Schwartz, which were completed just before the second accident, indicate that he was experiencing intermittent pain but that he had returned to his pre-accident activities. I agree with the respondent that an OCF-18 on its own is not enough to establish that the treatment is reasonable and necessary.¹ In addition, submissions are not evidence.

19However, the applicant also argues that the respondent has breached s. 38(8) of the Schedule, and the treatment plans are therefore payable. The applicant submits that the respondent failed to respond to each OCF-18 by the 10-day deadline in the Schedule. Although the denials were made within ten business days, the letters were sent by regular mail, and thus they were deemed to be delivered five days following the date they were sent.

20In reply, the applicant relies on Mahhamoud v. Aviva General Insurance, 2022 CanLII 11144 (ON LAT) [Mahhamoud] and Ratiu v. Aviva Insurance Company of Canada, 2022 CanLII 11135 (ON LAT) [Ratiu], for the assertion there is no requirement for services to be incurred to be payable if there is a breach under s. 38(8).

21The respondent submits that if I find that the denials were not made in accordance with the timeframes in the Schedule, it should only be liable for the costs incurred for the time it was non-compliant. As the applicant has not provided evidence that the costs have been incurred, the respondent argues it is not liable to pay for the goods and services in the disputed treatment plans.

22I disagree with the applicant’s interpretation of s. 38(11)2, and find that the cases he relies on are distinguishable. Section 38(11)2 specifies that, if the notice requirements in s. 38(8) are breached, the insurer shall pay for the goods and services described in the treatment 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)”. This means that an insurer is able to cure the deficient notice, but must pay for goods and services that relate to the period in between the deficient and cured notice. It cannot be said that if an insurer sends a denial letter late, all goods and services in the denied treatment plan are forever payable. That would effectively render s. 38(11)2 meaningless.

23In Mahhamoud, the Tribunal found that the denial letter fell short of the insurer’s obligation to provide medical and other reasons pursuant to s. 38(8) of the Schedule, thus triggering the consequences of s. 38(11). That case is distinguishable as the deficient notice was never cured, and thus there was a question as to whether the services needed to be “incurred” to be payable. The Tribunal found that it would be contrary to the consumer protection purpose of the Schedule to require an injured person to incur an expense prior to a finding by the Tribunal as to whether notice was deficient. In the case before me, the respondent cured the breach within a few days when the letter was deemed delivered.

24Ratiu did not involve a s. 38(8) breach and is therefore of limited assistance. The treatment plan in that case was found to be reasonable and necessary, and the insured was entitled to payment for the treatment plan even though it had not been incurred yet. That is not the same as the issue before me, as the treatment plans have not been deemed reasonable and necessary.

25The respondent relies on D.N. v. Aviva Insurance Company, 2018 CanLII 13166 (ON LAT) [D.N.], where denial letters were provided by an insurer a few days after the 10-day deadline prescribed by the Schedule. The Tribunal found that as there were no goods or services consumed by the insured prior to the date the denial letters were provided, the insurer was not required to pay for them under s. 38(11)2.

26While I am not bound by Tribunal decisions in any event, I am bound by the Divisional Court decision in Aviva General Insurance v. Catic, 2022 ONSC 6000 [Catic], which affirmed the principle set out in D.N. In that case, the insurer provided a denial letter outside of the 10-day period under s. 38(8) of the Schedule, and the insured did not incur any expenses up to the date the denial letter was delivered. The Court found that s. 38(11)2 compels the insurer to pay for all items in the treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. The facts in D.N. and Catic mirror the facts before me.

27I find that the denial letters were not provided in accordance with the timeframes in the Schedule. However, I also find that there is no evidence that the treatment was incurred prior to the date that the notice letter was deemed delivered.

28The applicant also submits that the notice letter for the treatment plan for $2,534.16 (issue (ii)) was deficient for an additional reason. The applicant argues that the denial letter failed to specifically identify each of the goods, services, assessments, and examinations described in the OCF-18, and that denials must be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response.

29The respondent submits that the denial letter set out the required information pursuant to s. 38(8) of the Schedule. It denied the treatment plan in its entirety, advised that it requested an independent assessment, and requested documents pursuant to s. 33(1) of the Schedule.

30I see no issues with the content of the denial letter such that s. 38(8) would be triggered. The only issue identified by the applicant is that each of the items listed on the OCF-18 were not specifically listed in the denial letter. I do not find that this was a breach of s. 38(8), particularly as it is clear that the treatment plan was denied in its entirety. It was not a situation where a person reading the denial letter would not know what items were denied and what were not, as the applicant suggests.

31I therefore find that the applicant has failed to prove on a balance of probabilities that the treatment plans for chiropractic services are reasonable and necessary, or that they are payable by virtue of s. 38(8).

Disability Certificate – Issue (iv)

32An OCF-3 was prepared by Dr. Angelika Alechina, chiropractor, on February 1, 2019. Dr. Alechina requested $200 in payment for the completion of the OCF-3. The respondent paid $112.81. The applicant submits that $200.00 is a reasonable fee for preparing a disability certificate, and should be paid in full.

33The respondent submits that the applicant has failed to establish why he should be entitled to the cost of preparing an OCF-3 beyond the maximum hourly rate for chiropractors under the Superintendent’s Guideline No. 03/14 (“Guideline”). The respondent paid $112.81, which is the rate for one hour of a chiropractor’s time.

34In reply, the applicant states that the maximum payable for the completion of the form is $200.00.

35The $200.00 noted in the Guideline for the completion of an OCF-3 is the maximum payable amount, however it is not the amount that must be payable for every OCF-3. The Guideline states that insurers “are not liable to pay for expenses related to professional services rendered to an insured person that exceed the maximum hourly rates set out in the Appendix.” Section 25(1)1 of the Schedule states that an insurer shall pay reasonable fees charged for preparing a disability certificate if required. The applicant has the burden of proving that the fee charged is reasonable.

36The applicant has not provided any evidence as to how long it took Dr. Alechina to prepare the OCF-3. No invoice or any other information from Dr. Alechina has been included in evidence. As such, I am unable to find that the applicant has satisfied his burden to prove on a balance of probabilities that the $200.00 fee claimed was reasonable. I decline to order the respondent to pay more than it already has for the OCF-3.

Psychological Assessment – Issue (v)

37It appears that there is no dispute as to whether a psychological assessment is reasonable and necessary. There is a dispute as to whether the amount payable for this treatment plan should be $2,200.00 or $1,645.71. I find that this treatment plan is payable at $1,645.71.

38The applicant submitted an OCF-18 for a psychological assessment in the amount of $2,200.00 on August 20, 2019. The treatment plan was partially approved on March 9, 2022, in the amount of $1,645.71. In its letter, the respondent explained that it reduced the fee for completing the OCF-18 from $200.00 to $149.61 in accordance with hourly rate for psychologists in the Guidelines, and it reduced the fee for the assessment from $2,000.00 to $1,496.10 to allow for 10 hours to assess the applicant and write a report. It explained that if the provider took longer than one hour to complete the OCF-18, it required the provider to explain why additional time was needed. It also requested a copy of the report as well as a detailed breakdown of the invoice prior to paying for the assessment.

39On March 11, 2022, the respondent acknowledged receipt of a letter from the applicant (which neither party has entered into evidence), and stated that they could not consider payment of any invoice until they receive a breakdown outlining the provider completing each component of the assessment and the amount of hours they spent completing each component. The respondent submits that once the invoice was received, it was paid. The applicant submits that the invoice for this assessment has not been paid yet.

40The applicant has not provided any evidence as to whether the assessment took more than 10 hours. In fact, the applicant does not make submissions as to why $2,000 is the appropriate amount for the assessment. He instead argues that the assessment is payable in full as it was deemed reasonable and necessary by Dr. Schwartz. I note that Dr. Schwartz’s opinion in her report of February 17, 2021, was not that the assessment was payable, it was that some psychological treatment was warranted. The respondent has no obligation to pay $2,000 for an assessment simply because it found that an assessment was warranted. The applicant has the burden of proving on a balance of probabilities that the amount proposed in the treatment plan is reasonable and necessary, and that once the assessment has taken place, the invoice amount reflects the actual work done. The applicant has not discharged his burden in this regard.

41There is also no evidence before me as to how long it took the psychologist to complete the OCF-18. The respondent specifically requested that information if it did in fact take the psychologist longer than one hour, and it appears that this information was not provided. I take the applicant’s silence on that point to mean that there is no evidence that the OCF-18 took longer than one hour to complete. I find that portion of the treatment plan to be payable at $149.61.

42The applicant submits that the respondent failed to re-evaluate his claim upon receiving medical evidence from its own s. 44 assessor, Dr. Schwartz. The applicant states that Dr. Schwartz’s paper review report, in which some psychological treatment was recommended, was provided to the respondent on February 17, 2021. This does not appear to be the case. A February 24, 2022 letter from the insurer indicates that there was an error made by the assessment centre, and the report was not provided to the respondent until February 17, 2022. Upon receipt of the report, the respondent re-evaluated the claim, removed the applicant from the MIG, and approved the assessment.

43The applicant relies on Yang v. Dominion, 2022 CanLII 23412 (ON LAT) [Yang]. In that case, treatment was denied as the insured was in the MIG. The Tribunal found that once an insured is removed from the MIG, the insurer has an obligation to re-evaluate the treatment plans it denied because of the insured’s injuries being minor and subject to the MIG monetary limits. Thereafter, those treatment plans become subject to the test of being reasonable and necessary. If an insurer does not do so pursuant to s. 38(8) of the Schedule, the consequences under s. 38(11) are triggered.

44In this case, the psychological assessment was initially denied based on the opinion of Dr. Shari Schwartz in her first report of August 21, 2020. She determined that a psychological assessment was not reasonable and necessary. However, after being provided with Dr. Steiner’s report of October 13, 2020, Dr. Schwartz found that psychological treatment was warranted. It cannot be said that the assessment was denied solely because the applicant was in the MIG; the assessment was denied because Dr. Schwartz initially did not believe it to be reasonable and necessary. I do not find that s. 38(8) applies as it did in Yang.

45As such, I find that the treatment plan is payable at $1,645.71.

Chronic Pain Assessment – Issue (vi)

46The applicant argues that a chronic pain assessment will assist with outlining a strategy for future endeavors to assist with management and hopefully resolution of his impairments. He states that his family physician made note of chronic pain. He argues that a chronic pain assessment is warranted as a s. 25 assessor is familiar with the legal test for the benefits available, as well as the Schedule, and is therefore in a better position to comment on the applicant’s chronic pain condition than his family physician.

47The respondent submits that in order for a chronic pain assessment to be reasonable and necessary, there should be some evidence that such a condition exists. An OCF-18 is not enough without further corroborating evidence.

48I don’t agree that there must be evidence that a chronic pain condition actually exists before an assessment is warranted. However, there has to be some evidence that the applicant’s pain and impairments warrant investigation into whether the condition exists.

49The evidence surrounding the applicant’s pain complaints as a result of the January 2019 accident is sparse. He only complained of pain once to his family physician prior to the second accident, and it appears that the second accident exacerbated any symptoms he was still experiencing. There is little information as to the nature of his pain, whether it is consistent, how often it occurs, or whether it impacts his life in any way. Based on the s. 44 assessments, it appears that prior to the second accident, the applicant’s pain was intermittent, and did not affect his ability to function. One notation of “chronic pain” from a physician after the second accident without further elaboration is not sufficient evidence that a chronic pain assessment for injuries sustained in the first accident is reasonable and necessary. In fact, the note referring to “chronic pain” also refers to it being “intermittent”. I find that the applicant has not proven on a balance of probabilities that a chronic pain assessment is reasonable and necessary.

50The applicant also argues that this assessment is payable pursuant to s. 38 of the Schedule as the denial letter was delivered late, in a similar fashion to the letters pertaining to the chiropractic treatment plans above. There is no evidence that the cost of the assessment was incurred prior to the deemed delivery date (or at all). For the same reasons I have stated above, I do not find this treatment plan to be payable pursuant to s. 38.

Interest – Issue (viii)

51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the cost of the psychological assessment.

Award – Issue (ix)

52Under s. 10 of O. Reg. 664, the applicant may be entitled to an award of an amount up to 50% of the benefits and interest owed to him if I find that the respondent unreasonably withheld or delayed payments. I find that the applicant has failed to show that is the case.

53The threshold for an award is high. The only treatment plan that I have found to be payable is one that the respondent also agrees is payable. There was an error with respect to the assessment centre providing the paper review report of Dr. Schwartz late, and perhaps the respondent should have reached out to the assessment centre to find out why the report was delayed. However, one error in adjusting a claim does not necessarily warrant an award, and the respondent is not required to be held to a standard of perfection. Upon being provided with the report and discovering the error, the insurer quickly agreed to fund the psychological assessment. I do not believe that its actions were excessive, imprudent, stubborn, unyielding or immoderate. As such, I decline to order an award.

Costs – Issue (x)

54Costs are a discretionary remedy which may be awarded when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedure. Rule 19.5 provides a list of factors that the Tribunal shall consider in assessing whether to order costs.

55The applicant’s only submission with respect to costs was that he requested $1,000 “due to the severe prejudice experienced by the applicant”. No evidence has been provided about what “severe prejudice” the applicant experienced. The applicant cannot simply request costs without providing any further information as to why they are warranted. In any event, I do not believe that the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith. I find that the applicant is not entitled to costs.

ORDER

56The applicant is entitled to the following:

i. $1,645.71 for the cost of the psychological assessment completed by Dr. Steiner.

ii. Interest on the cost of the psychological assessment, pursuant to s. 51 of the Schedule.

57The applicant is not entitled to the following:

i. $226.97 ($1,335.28 less $1,108.31 approved) for chiropractic services recommended by Novo Medical Services Inc. in a treatment plan submitted on May 7, 2019 and denied on May 21, 2019.

ii. $2,534.16 for chiropractic services recommended by Novo Medical Services Inc. in a treatment plan submitted on July 2, 2019 and denied on July 15, 2019.

iii. $2,377.42 for chiropractic services recommended by Novo Medical Services Inc. in a treatment plan submitted on September 3, 2019 and denied on September 17, 2019.

iv. $87.19 ($200.00 less $112.81 approved) for a Disability Certificate prepared by Novo Medical Services Inc. on February 1, 2019.

v. $2,200.00 for a chronic pain assessment recommended by Novo Medical Services Inc. in a treatment plan submitted December 16, 2019 and denied on January 2, 2020.

vi. $1,223.43 for a home exercise program in a treatment plan submitted on December 18, 2019 and denied on January 2, 2020.

vii. An award under s. 10 of O. Reg. 664.

viii. Costs.

Footnotes

1. 1Janette Blas v. Aviva Insurance Canada, 2021 CanLII 127471 (ON LAT)