Licence Appeal Tribunal File Number: 22-013666/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:
Joel Ceresne
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR: Nadia Mauro
APPEARANCES:
For the Applicant: W. Patrick Sloan, Counsel
For the Respondent: Jean-Claude Rioux, Counsel Brittanny Tinslay, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Joel Ceresne, the applicant, was involved in an automobile accident on August 16, 2018, 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, The Personal 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:
i. Is the applicant entitled to $2,260.00 ($19,107.00 less partial approval of $17,107.00) for a file review summary, proposed by Omega Medical Associates in a treatment plan (“OCF-18”) submitted December 10, 2020?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
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?
RESULT
3The applicant is not entitled to the OCF-18 for the file review summary, interest, or an award.
ANALYSIS
The applicant is not entitled to $2,260.00 for the file review summary
4I find that the applicant has not proven, on a balance of probabilities, that the file review summary is reasonable and necessary.
5To 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.
6The OCF-18, authored by Lisa Becker of Omega Medical Associates Ltd, dated December 8, 2020, was partially approved for several catastrophic assessments, including a physiatry assessment, orthopaedic assessment, neurology assessment, psychology assessment, OT ADL & Community assessment, OT situational assessment, overall assessment summary, analysis, and final rating, and completion of the Determination of Catastrophic Impairment. The portion of the plan that was not approved was for a Centralized Comprehensive File Review (the “file review summary”) in the amount of $2,260.00, inclusive of HST, and is the issue in dispute.
7The applicant submits that the proposed file review summary was a necessary, standalone, not duplicative, assessment, and crucial to the overall catastrophic impairment evaluations. The applicant submits that the file review summary is an examination of the medical records and is therefore contemplated by s. 25(1)(5) of the Schedule. Moreover, the applicant relies on O.A. v TD Insurance Meloche-Mennox, 2020 CanLII 87965 (ON LAT) (“O.A.”), in that medical file reviews are reasonable and necessary.
8The respondent submits that it is duplicitous to have each assessor review the documentation in addition to a file review summary, for an additional cost. The respondent argues that it is the responsibility of the assessor to review all of the documentation and make notes of the most pertinent information when conducting their assessment and report.
9First, I agree with the respondent, in that a file review is not an assessment or evaluation, rather it is a summary of medical documentation. Section 25(5) of the Schedule specifies that the insurer is not obligated to pay more than a total of $2,000.00 with respect to fees and expenses for “conducting any one assessment or examination” and for preparing reports in connection with it. A file review is a necessary component of each assessment and is not an independently billable task.
10Moreover, email correspondence from Sandra D’Souza of Omega Medical Associates Ltd, dated December 18, 2020, states that, “unless we do [the file summary review] we cannot proceed as the only way we have assessors doing these assessments for $2k is that we provide them with a centralized file review.” In my view and keeping in mind the provision of s. 25(5) of the Schedule, it is not the responsibility of the insurer, should the applicant’s assessors charge more than what is statutorily provided, to cover the surplus.
11Lastly, I am not bound by Tribunal decisions, however, I differentiate O.A., relied upon by the applicant, from the case herein, because in O.A, Adjudicator Boyce only found the comprehensive file review to be reasonable and necessary as it had already been paid by the respondent. I prefer the respondent’s citation of 16-004501 v The Sovereign General Insurance Company, 2018 CanLII 13158, wherein Adjudicator Sewrattan found payment for a file review as a duplicitous expense. While I do not agree that the expense is duplicitous, I do agree that the file review expense, in this case, to be duplicative. It is clear from Sandra D’Souza’s email that the purpose of the file review summary is to summarize the medical documentation and therefore save costs with respect to the other assessments identified on the partially approved OCF-18. However, as indicated above, a file review is a necessary component of each assessment and would be duplicative if billed separately. Moreover, to charge for a file review summary as an independent task would be contrary to s. 25(5) of the Schedule.
12Given the foregoing, I find that the applicant has not proven, on a balance of probabilities, that the file review summary is reasonable and necessary.
Section 38(8)
13I find the respondent’s denial letter, dated December 16, 2020, is complaint with s. 38(8) of the Schedule.
14As an alternative argument, the applicant submitted that the unapproved portion of the OCF-18 should be payable pursuant to s. 38(8) of the Schedule.
15Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
16If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
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).
17The respondent’s denial letter dated December 16, 2020 states: “a file review summary is included in the $2,000 cost for each approved assessment and the request for additional reviews is a duplication and will not be considered.”
18The applicant submits that per s. 38(8) of the Schedule, denial letters are required to provide a medical reason for the denial. However, the applicant submits that the letter only stated that the file review summary was duplicative, and no medical reasons for the denial were provided.
19The respondent submits that the denial was clear and unequivocal and was based on the wording of the legislation. The respondent further argues that there is no medical reason to provide and relies on Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 (“Varriano”).
20I find that the denial letter is compliant with s. 38(8) of the Schedule. I agree with the respondent and its citation of Varriano, in that an insurer is not required to fabricate a medical reason where none exists. While the wording of s. 38(8) states “medical reasons and any other reason”, Varriano clarifies that if an insurer is relying on a non-medical ground to deny the applicant of their benefits, then the provision requires only that the insurer provide notice of the non-medical reason for its denial. In the present case, the respondent’s denial letter is clear that the file review summary was denied based on the non-medical reason of duplication and based on the purpose of the file review summary, I agree with the respondent that there would be no medical reasons to provide.
21Given the foregoing, I find that the respondent’s denial letter dated December 16, 2020 complied with s. 38(8) of the Schedule.
Interest
22As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
23The 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.
24As there were no benefits owing, the applicant is not entitled to an award.
ORDER
25I find that:
i. The applicant is not entitled to the OCF-18 for a file review summary, interest, or an award.
ii. The application is dismissed.
Released: November 25, 2024
Nadia Mauro
Adjudicator