Licence Appeal Tribunal File Number: 21-011528/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:
Abdul Khalil
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Lisa Yong
APPEARANCES:
For the Applicant:
Ryan Zigler, Counsel
Maziar Mortezaei, Counsel
For the Respondent:
Paul Belanger, Counsel
HEARD: In Writing
OVERVIEW
1Abdul Khalil, the applicant, was involved in an automobile accident on December 10, 2016, 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, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the Case Conference, the respondent conceded that the applicant is catastrophically (CAT) impaired.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $11,780.00 for the balance for CAT Impairment Assessments in treatment plan proposed by Toronto Health Care Clinic Inc. submitted November 2, 2020 and denied November 16, 2020?
ii. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Regulation 554?
iii. Is the applicant entitled to interest on any overdue payments of benefits?
RESULT
4The applicant is not entitled to the payment of the disputed cost of assessment in the OCF-18 submitted November 2, 2020.
5The applicant is not entitled to any interest or award.
6The application is dismissed.
ANALYSIS
7To 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.
The applicant is not entitled to $11,780.00, being the balance for the costs of assessments in the OCF-18 dated November 2, 2020
8The Case Conference Report and Order dated February 3, 2022 identified the issue in dispute in the amount of $11,580.00. The applicant clarified in its submissions that the disputed amount is, in fact, $11,780.00 ($24,560.00 less $12,780.00 approved). This was also confirmed by the OCF-18 and respondent’s denial letter dated November 16, 2020. Therefore, I confirm that the disputed amount for this OCF-18 is $11,780.00.
9The applicant submitted an OCF-18 dated November 2, 2020, proposing a series of CAT assessments to which the respondent partially approved and denied as follows:
i. The respondent partially approved five $2,000.00 assessments for orthopedic, neurological, psychiatry, occupational therapy - in home, occupational therapy – situational CAT assessments and $2,000.00 for an executive summary, which is a total of $12,000 plus HST (i.e. $12,780.00 as stated above);
ii. The respondent denied funding for three $2,000.00 items for “Document Review and CAT Analysis” and three $1,000.00 items for “Report” for the areas of orthopedic, neurology and psychiatry.
iii. The respondent also denied the amount of $2,000.00 for an initial assessment, clinical file review and preliminary report proposed by Dr. Khaira, chiropractor; and
iv. With respect to transportation expenses, the respondent advised that it would be prepared to reimburse the applicant for any transportation costs upon presentation of an invoice. The respondent also noted in its denial letter that translation costs were not applicable, despite $0 claimed in the OCF-18, as the applicant indicated on the OCF-1 that he speaks English.
Document Review, CAT Analysis and Report for Orthopedic, Neurology and Psychiatry (balance of the cost for CAT assessments)
10The applicant submits that, when the legislative amendment was made to s. 25(5) of the Schedule on June 3, 2019, the monetary limitation of $2,000.00 cost per assessment only applies to accidents that occur on or after June 3, 2019. He submits that since the subject accident occurred on December 10, 2016, it is therefore not subject to the monetary limitation as stated above.
11The applicant did not complete its submission relating to the legislature’s intention of the Schedule and also quoted the case of Stranges v. State Farm Mutual Automobile Insurance Company, 2017 ONFSCDRS 239 without elaborating as to how the case supports its submission.
12The respondent submits that the insurer’s liability for the cost of the assessment approved was limited to $2,000.00 per assessment pursuant to s. 25(5)(a) of the Schedule. The respondent submits that it has approved up to $2,000.00 per assessment for orthopedic, physiatry and neurological CAT assessments and has met its obligation in accordance with s. 25(5)(a) of the Schedule. It submits that the providers are not entitled to charge additional fees for document review and report as they are included within the cost of $2,000.00 which has been approved. It further submits that the burden of proof is on the applicant, and not on the respondent, to establish that the cost of assessment is reasonable and necessary.
13I agree with the respondent that s. 25(5)(a) of the Schedule sets a $2,000.00 funding limit for cost of assessments. With reference to Stranges, that case confirmed that “… the $2,000.00 cap (s. 25(5) of the Schedule) applies to all examinations after August 31, 2010.”
14The amendment to s. 25(5) of the Schedule which took effect on June 3, 2019 is only relevant to the HST portion of any incurred cost of examination or assessments. To clarify for completeness, prior to the amendment on June 3, 2019, the Schedule did not state that HST was payable beyond the $2,000.00 limit. After the amendment, HST is payable on top of the $2,000.00 cap limit by the insurance company.
15The onus remains on the applicant to establish that the cost for assessment is reasonable and necessary. In this regard, the applicant did not present any medical evidence or explanation as to why the providers had proposed the additional charges of documentation review and CAT analysis (for $2,000.00) and report (for $1,000.00) for each of the three multidisciplinary areas of orthopedic, psychiatry and neurology, and most importantly, why the costs were reasonable and necessary.
16For the reasons above, I find the applicant has not met its onus of proof. Therefore, the applicant is not entitled to the balance of the cost of assessment for the document review, CAT analysis and report for orthopedic, psychiatry and neurology, and no interest is payable.
Cost for Initial Assessment and Preliminary Report by the chiropractor
17The applicant also submits that the respondent denied the cost of assessment proposed by Dr. Khaira on the basis that it was not “essential” and that it applied the wrong test. The applicant argues that “essential” means “absolutely necessary” or “vitally necessary” which is a stricter standard than mandated under the Schedule. Since the insurer applied the wrong test, the applicant submits that he is entitled to the full payment of the cost of assessment including interest.
18The respondent did not dispute the fact that it denied the need of the initial assessment and preliminary report by the chiropractor but submits that the onus remains on the applicant to establish the cost for assessment is reasonable and necessary.
19The applicant was given the opportunity to make reply submissions but has failed to make any further submissions to establish it met the onus of proof.
20I find that the applicant has not met its onus of proof that the cost of assessment by the chiropractor is reasonable and necessary. Therefore, I find that the applicant is not entitled to the cost in dispute.
21As I find the applicant is not entitled to the disputed balance of the cost of assessment, no interest is payable.
Award
22As no benefits are owing, it follows that the applicant is not entitled to interest and the respondent is not liable to pay an award.
ORDER
23The applicant is not entitled to payment for the disputed cost of assessments in the treatment plan claimed in this application.
24The applicant is not entitled to any interest or an award.
25The application is dismissed.
Released: August 23, 2023
Lisa Yong
Adjudicator