Licence Appeal Tribunal File Number: 22-012064/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:
Ghada Lisa Kakish
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Mohamed Elbassiouni, Counsel
For the Respondent: Cara L. Boddy, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ghada Lisa Kakish, the applicant, was involved in an automobile accident on December 16, 2015, 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 Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $12,399.00 ($26,143.00 less $13,744.00 approved) for a catastrophic assessment, proposed by Biomedix Impairment and Diagnostic Centre Inc. in a treatment plan submitted February 5, 2021?
ii. Is the applicant entitled to $2,287.69 for an income replacement calculation report, proposed by ADS Forensic Accountants in a treatment plan submitted July 6, 2021?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the amount in dispute with respect to the treatment plan for catastrophic assessments.
4The applicant is not entitled to the cost of the income replacement calculation report.
5The applicant is not entitled to interest.
6The respondent is not liable to pay an award.
ANALYSIS
Catastrophic Assessments
7I find that the applicant is not entitled to the amount in dispute with respect to this treatment plan.
8On February 5, 2021, the applicant submitted a treatment plan for catastrophic impairment assessments for the total amount of $26,143.00. The treatment plan was comprised of the following:
i. Orthopaedic assessment - $2,000.00
ii. Executive summary and rating of whole person impairment - $2,000.00
iii. Medical file review - $2,000.00
iv. Psychiatric evaluation part I – psychiatric assessment for catastrophic impairment determination, psychiatric testing, and review of external file material - $2,000.00
v. Psychiatric evaluation part II – psychiatric scoring - $2,000.00
vi. Psychiatric evaluation part III – communication with team members, preparation of report - $2,000.00
vii. Psychological testing - $2,000.00
viii. Neurological catastrophic assessment part I - $2,000.00
ix. Neurological catastrophic assessment part II - $2,000.00
x. Occupational therapy in-home assessment - $2,000.00
xi. Occupational therapy situational assessment - $2,000.00
xii. Occupational therapy communication with family members and friends, preparation of report - $2,000.00
xiii. OCT-18 completion - $200.00
xiv. OCF-19 completion – $200.00
xv. Travel time for occupational therapist - $399.00
xvi. Transportation for applicant - $204.00
xvii. Interpretation - $1,140.00
9The respondent partially approved $13,744.00 of the treatment plan on May 13, 2021. The respondent denied items (iii), (v), (vi), (vii), (ix), (xii), and (xv) above.
10The applicant submits that the respondent failed to comply with s. 38(8) of the Schedule, and the remainder of the treatment plan is accordingly payable pursuant to s. 38(11). The applicant also submits that the proposed assessments are reasonable and necessary. For the following reasons, I find that the applicant has failed to prove that she is entitled to the remainder of this treatment plan.
The respondent did not breach s. 38(8)
11Section 38(8) of the Schedule requires an insurer to provide the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment 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. Section 38(10) states that a notice under s. 38(8) may notify an insured person that it requires them to undergo an examination under s. 44.
12If an insurer fails to provide notice that complies with s. 38(8), under s. 38(11)2 it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11th business day after the treatment plan was submitted until the proper denial notice is given.
13The applicant submits that, in its letters of March 12 and May 13, 2021, the respondent failed to identify the services, assessments, and examinations described in the treatment plan that the respondent did not agree to pay for. She also submits that the letter of May 13, 2021, failed to provide reasons as to why the denied assessments were not reasonable and necessary. Although she mentions that a letter dated April 7, 2021, was not compliant with s. 38(8), she does not make any further submissions explaining why. I accordingly will not engage in an analysis with respect to the letter of April 7, 2021.
14I agree with the respondent that the March 12, 2021, letter was not defective. It stated that the entire amount of the treatment plan from Biomedix Impairment and Diagnostic Centre Inc., dated February 10, 2021, for catastrophic assessments, was not yet approved pending the results of an insurer’s examination. Under the heading of “amount approved”, it stated “TBD”. I find that the notice very clearly explained that the entirety of the treatment plan was in question. Due to this clarity, I find that there was no requirement for the respondent to also specifically list each line item in the treatment plan in the notice letter for it to have been compliant with s. 38(8).
15The letter dated May 13, 2021, listed each line item in the treatment plan as well as the amount claimed and the amount approved. Many of the items were entitled “catastrophic determination assessment” without further description. I note that this is how they were labelled in the treatment plan under the section for proposed goods and services, although they were described in more detail in the “additional comments” section of the treatment plan. At first glance, the letter itself lacked specificity such that the assessments could not be distinguished from each other. However, the respondent enclosed a copy of the s. 44 report of Dr. Khaled, general practitioner, and referred the applicant to the report for an explanation of each approval and denial. Dr. Khaled identified each of the line items of the treatment plan, including their detailed descriptions as specified in the “additional comments” section, and why he believed they were reasonable and necessary or not. I find that this notice was compliant with s. 38(8) as it set out the items that were approved or denied based on their description in the treatment plan, and then provided additional clarity and medical reasons by referring to the report of Dr. Khaled.
16The applicant relies on G.P. v. Wawanesa Mutual Insurance Company, 2022 CanLII 45306 (“G.P.”). The Tribunal held that asking the applicant to read the assessment on her own as the reasons for the denial was inappropriate, and that the notice should have had a complete and detailed account of why the assessments were not approved in a clear format so that it would be easily understood by the applicant.
17I do not agree with the reasoning of the Tribunal in G.P., nor am I bound by it. Nothing in the Schedule specifies that the requirements set out in s. 38(8) must be located within the body of a letter specifically, or that enclosures to a notice letter are not considered part of the notice. I find that the letter and its enclosures are what make up the notice, and not just the letter itself.
18I accordingly find that the items in dispute with respect to this treatment plan are not payable by virtue of s. 38(11).
The items in dispute are not reasonable and necessary
19To 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.
20Section 25(5)(a) of the Schedule states that an insurer shall not pay more than $2,000.00 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it.
21The only submissions the applicant made in support of her entitlement to the denied assessments were to point to the pages of the treatment plan where the assessments were described, and that the cost of the assessments were reasonable because each assessment was under the s. 25 cap of $2,000.00.
22Just because the treatment plan lists the assessments as being separate does not mean that they are actually separate assessments, nor does it mean that it is reasonable and necessary for the insurer to fund multiple assessments if they are in fact separate. The onus is on the applicant to prove that each examination is reasonable and necessary. It is not clear to me based on the brief descriptions in the treatment plan what the difference is between the assessments and why they should not be subsumed within each other. The applicant’s submissions do not provide any clarity on the need for the separate assessments which appear to me to be duplicative.
23Further, I agree with the respondent and the reasoning of the Tribunal in M.G. v. Aviva Insurance Canada, 2019 CanLII 40256, and Applicant v. Aviva General Insurance, 2018 CanLII 141011, that a file review is a necessary component of an assessment, and therefore a separate file review “assessment” is not reasonable and necessary. Importantly, the applicant has not provided any submissions or compelling evidence as to why a file review should be considered an assessment on its own, or why it is reasonable and necessary. The treatment plan itself does not shed light on this issue either.
24Finally, the applicant is seeking $399.00 for travel costs for the occupational therapist to complete the two assessments that were approved. The applicant has not made any submissions regarding this line item and has therefore not met her burden to prove that this expense should be paid outside of the s. 25(5) cap for each assessment.
25I accordingly find that the applicant has not met her burden, on a balance of probabilities, of proving that the denied items in this treatment plan are reasonable and necessary.
Income Replacement Calculation Report
26I find that the applicant is not entitled to the cost of the income replacement calculation report.
27Section 7(4) of the Schedule states that an insurer shall pay the expense for the preparation of a report for the purpose of calculating an insured person’s income from employment or self-employment, provided the following conditions are met: (1) the insured person is applying for an income replacement benefit that is based on the employment or self-employment considered in the report, (2) the report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004, and (3) the expense is reasonable and necessary for the purpose of determining the insured person’s entitlement to an income replacement benefit. Under s. 7(5), the maximum amount payable for this report is $2,500.00.
28The report was prepared on June 25, 2021, and its cost was $2,287.69. The parties disagree as to whether the expense was reasonable and necessary.
29On January 19, 2016, April 15, 2016, and April 15, 2021, prior to the submission of the report, the respondent denied the applicant’s entitlement to income replacement benefits. The respondent has never paid the applicant an income replacement benefit. Although the parties disagree about whether the applicant is entitled to the benefit, there is no evidence before me that the quantum of the benefit was ever in dispute. I question the need for an accounting report where there is no indication that the quantum of the benefit was ever at issue.
30The respondent also submits that the report was not reasonable and necessary because the calculation was simple. I find the reasoning of the Tribunal in Ramkelawan v. Aviva Insurance Company, 2022 CanLII 68308 (“Ramkelawan”), and S.M. v. Aviva General Insurance Company, 2020 CanLII 12712 (“S.M.”), relied on by the respondent, to be persuasive. In Ramkelawan, the Tribunal held that where the calculation involved was not sufficiently complex, an accounting report was not reasonable and necessary. The insured was a salaried employee, and the Tribunal felt that they could have simply submitted the supporting documentation directly to the respondent rather than through an accounting report. In S.M., the insured had one employer, and the math involved was not particularly difficult. After the accident, she received short-term disability payments, and this amount was simply subtracted from the income replacement benefit amount. The Tribunal held that the insured failed to demonstrate why the calculation was so difficult such that it was reasonable and necessary to secure a professional accounting report.
31The evidence before me is that, following the accident, the applicant continued to work for her employer until August 2017. She obtained a new job as of June 6, 2017, and ceased working at that job on April 23, 2019. She received 6 weeks of severance pay, and then employment insurance benefits. She remained off work until May 28, 2021, when she commenced a position with another employer.
32The applicant argues that her situation was “unique and complex”, as the calculation involved deducting 70% of her post-accident income from her pre-accident gross employment income. I disagree. In my view, deducting 70% of gross post-accident income is straightforward. There is no compelling evidence before me that there was anything out of the ordinary with respect to her employment or her pay that would have necessitated the services of an accountant.
33For the reasons above, I find that the applicant has not proven on a balance of probabilities that the accounting report was reasonable and necessary around the time it was authored.
Interest
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that no benefits are owing, interest is not payable.
Award
35The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that none of the benefits in dispute are payable, the applicant is not entitled to an award.
ORDER
36The applicant is not entitled to the amount in dispute with respect to the treatment plan for catastrophic assessments.
37The applicant is not entitled to the cost of the income replacement calculation report.
38The applicant is not entitled to interest.
39The respondent is not liable to pay an award.
Released: November 27, 2024
Rachel Levitsky
Adjudicator