[I.B] v. TD General Insurance Company, 2024 CanLII 121074

Citation: [I.B] v. TD General Insurance Company, 2024 CanLII 121074

Licence Appeal Tribunal File Number: 22-008981/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:

[I.B] (A minor by their litigation guardian, [K.B])

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Meral Kesebi, Counsel

For the Respondent: Stefan Sistilli-Sguazzin, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1[I.B], the applicant, was involved in an automobile accident on March 5, 2020, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing for occupational therapy services in the amount of $442.20 ($6,478.27 less $6,036.07 approved), proposed by NCCO Rehabilitation Services submitted March 18, 2020, because the applicant failed to dispute their denial within the 2- year limitation period?

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

i. Is the applicant entitled to $4,546.50 ($9,216.50 less $4,670.00 approved) for social rehabilitation counselling, proposed by NCCO Rehabilitation Services in a treatment plan/OCF-18 (“plan”) submitted September 22, 2020?

ii. Is the applicant entitled to $442.20 ($6,478.27 less $6,036.07 approved) for occupational therapy services, proposed by NCCO Rehabilitation Services in a plan submitted March 18, 2020?

iii. Is the applicant entitled to $6,355.80 for vocational/academic training, proposed by NCCO Rehabilitation Services in a plan submitted January 28, 2021?

iv. Is the applicant entitled to $1,792.96 ($5,889.20 less $4,096.24 approved) for social rehabilitation counselling, proposed by Anchor Rehabilitation in a plan submitted July 8, 2022?

v. Is the applicant entitled to $515.21 for an iPhone, submitted on an expense claim form (OCF-6) dated August 11, 2020?

4In their written hearing submissions, the parties raised the issues of interest and an award, despite indicating that all the issues are outlined in the Case Conference Report and Order (“CCRO”) dated May 12, 2023. Since the CCRO does not list interest or an award as issues in dispute, and the parties did not file a motion seeking to add these issues, the applicant’s claim for an award and interest will not be considered as part of this application.

RESULT

5For the preliminary issue, I find that the applicant may proceed with her claim for the occupational therapy services treatment plan in the amount of $442.20 ($6,478.27 less $6,036.07 approved).

6I also find that the applicant has not demonstrated that the proposed treatment plans (OCF-18’s) are reasonable and necessary for her accident-related injuries. As a result, the OCF-18’s in dispute are not payable.

ANALYSIS

Preliminary Issue

7I find that the applicant may proceed with her claim for the unapproved portion of a treatment plan dated March 18, 2020 for occupational therapy services.

8Under s. 56 of the Schedule, an applicant has two years after the insurer’s refusal to pay the amount claimed to dispute the denial.

9The applicant filed an application to the Tribunal on August 16, 2022, which is beyond the two-year limitation period from the date when the respondent refused to pay the full amount of the plan for occupational therapy services denial on March 24, 2020.

10Section 7 of the Licence Appeal Tribunal Act, 1999, c. 12, Sched. G (LAT Act), however, affords the Tribunal statutory discretion to extend the limitation period prescribed by the Schedule if it is satisfied that there are reasonable grounds for granting such relief. In determining whether to grant an extension, the Tribunal examines 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. See Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act), 2012 ONSC 1492.

11The applicant argues that pursuant to Ontario Regulation 73/20 the two-year limitation period was suspended during the COVID-19 pandemic from March 16, 2020 to September 14, 2020. The applicant further argues that since the benefit was denied March 24, 2020, the limitation period should be extended to September 18, 2022. The applicant applied to the Tribunal on August 16, 2022.

12The applicant submits that the Tribunal should exercise its jurisdiction to extend the limitation period under s.7 of the LAT Act. The applicant submits that the delay is not significant and the respondent has not suffered any prejudice.

13The respondent makes no submissions regarding the delay or whether the limitation period should be extended.

14Although, the applicant has provided limited submissions on s.7 of the LAT Act, I agree with the applicant that since the two-year limitation period is extended from March 24, 2022 to September 24, 2022 under Ontario Regulation 73/20.

15I find that the applicant may proceed with her claim for occupational therapy services listed in issue 3 (ii).

Issue #1-OCF-18 dated September 22, 2020 for the outstanding amount of $4,546.50

16I find that the applicant has not established that the outstanding balance of OCF-18 dated September 22, 2020 is payable.

17To receive payment for a treatment plan under sections 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. 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 same are reasonable.

18Sections 15(1)(g) and s.16(3)(k) of the Schedule provide for medical and rehabilitation benefits that are reasonable and necessary which include transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant. Sections 15(2)(c) and 16(4)(f) provide that the insurer is not liable to pay medical and rehabilitation benefits for transportation expenses other than authorized expenses.

19The September 22, 2020 OCF-18 sought fifteen 1.5 hour sessions of social rehabilitation counselling, in the amount of $9,216.50. The respondent partially approved the treatment plan in the amount of $4,670.00. The outstanding amount of $4,546.50 was comprised of:

i. Provider travel time-15 trips at a rate of $149.00 per hour at 1.5 hours each, totalling $3,352.50;

ii. Brokerage services-6 hours at a rate of $149.00 per hour, totaling $894.00, and;

iii. Documentation support activity-1 hour at a rate of $300.00 per hour.

a) Provider travel time

20I find that the applicant is not entitled to the provider’s travel time because there is no medical evidence other than the disputed treatment plan that the home social work counselling is reasonable and necessary.

21The applicant relies on a letter dated September 23, 2020 by Jothisree Ramesh in support of provider travel time, given that the applicant’s father has difficulties bringing her to sessions and video sessions are ineffective. However, the only document that recommends that the applicant take part in at home social work counselling is the disputed plan.

22The respondent submits that pursuant to s. 15(2)(c) of the Schedule, the insurer is not liable to pay medical benefits for transportation expenses other than authorized transportation expenses. The respondent further submits that s. 3(1) of the Schedule defines “authorized transportation expenses” as expenses related to transportation (a) that are authorized by, and calculated by applying the rates set out in the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario, and (b) that unless the insured person sustained a catastrophic impairment as a result of the accident, relate to transportation expenses incurred only after the first 50 kilometres of a trip.

23I agree with the respondent. The applicant has not established how the provider travel time is payable.

24I find that the applicant has not established, on a balance of probabilities, that she is entitled to the unapproved portion of $3,352.50 of the September 22, 2020 OCF-18.

b) Brokerage services

25I find that the applicant has not provided any specific submissions or evidence to establish that the outstanding amounts for brokerage services of $894.00 are reasonable and necessary.

26The applicant relies on the letter dated September 23, 2020 by Ms. Ramesh indicating that the additional amounts for brokerage services, totaling $894.00 is for the provider’s time to read and consider reports from other treatment providers.

27The respondent submits that the brokerage services are a duplication of services and are not payable under the Superintendent’s Guideline No. 03/14, Professional Services Guideline. The respondent also submits that the Professional Services Guideline No. 03/14, specifically excludes expenses related to professional services such as administration costs, overhead, and related costs.

28I agree with the respondent that the applicant has not provided an explanation for the additional brokerage services beyond the amounts which have already been paid. There is no explanation to distinguish the difference between the additional time of 6 hours for brokerage services where the respondent had already approved 7.5 hours of documentation support activities for $1,117.50.

29I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved portion of $894.00 of the September 22, 2020 OCF-18.

c) Documentation support activity

30I find that the applicant has not provided any specific submissions or evidence to establish that the outstanding amount for documentation support activity of $300.00 are reasonable and necessary.

31The applicant relies on the letter dated September 23, 2020 by Ms. Ramesh indicating that the additional amount for documentation support, totaling $300.00 is for a progress report.

32The respondent further submits that the brokerage services and documentation support activity are a duplication of services and are not payable under the Superintendent’s Guideline No. 03/14, Professional Services Guideline.

33I agree with the respondent that the applicant has not provided an explanation for the additional 1 hour of documentation support activity beyond the amounts which have already been paid.

34I find that the applicant has not established on a balance of probabilities that she is entitled to the unapproved portion of $300.00 of the September 22, 2020 OCF-18.

35I find that the applicant has not established on a balance of probabilities that the balance of the September 22, 2020 treatment plan of $4,546.50 is reasonable and necessary and, therefore, the applicant is not entitled to the remaining amount of this plan.

Issue #2-OCF-18 dated March 18, 2020 for the outstanding amount of $442.20

36I find that the applicant is not entitled to the unapproved portion of the March 18, 2020 OCF-18.

37The applicant submitted an OCF-18 dated March 18, 2020 for occupational therapy services in the amount of $6,478.27, proposed by Jessica Wong, occupational therapist of NCCO Rehabilitation Services. The respondent partially approved the treatment plan in the amount of $6,036.07, including 12 occupational therapy sessions and provider travel time. The respondent denied provider mileage of 12 trips at 110 kilometres for $442.20.

38The applicant made no submissions regarding whether the outstanding amount for provider travel time is reasonable and necessary and, instead, relied solely on her argument that the respondent’s denial was non-compliant under s.38(8) of the Schedule such that the remaining amount of the treatment plan is payable.

39Sections 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) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all the other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

40If an insurer fails to comply with its obligations under s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies. Second, s. 38(11)2 provides that is an insurer must 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 notice as described in s. 38(8).

41The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.

42The applicant submitted that the respondent’s denial was non-complaint with s.38(8) of the Schedule.

43I find that the Explanation of Benefits (“EOB”) dated March 24, 2020 complies with the Schedule. The respondent stated reasons specific to the applicant and the disputed portion of the treatment plan, but they did not reference relevant sections of the Schedule.

44The respondent submits that since there is no provision in the Schedule for payment of provider mileage, and provider mileage is not payable under s.3(1) and s.15(2)(c) of the Schedule.

45I find the respondent’s denial was compliant with the Schedule and since the applicant made no submissions as to why provider mileage is reasonable and necessary, I find that the applicant has not met her burden to establish entitlement to the unapproved portion of this plan.

Issue #3-OCF-18 dated January 28, 2021 for tutoring, laptop, agenda, calendar and fidget toy

46I find that the applicant has not established on a balance of probabilities that she is entitled to tutoring, laptop, agenda, calendar and fidget toy in the January 28, 2021 OCF-18.

47The applicant seeks payment for an OCF-18 dated January 28, 2021 in the amount of $6,355.80 submitted by Jessica Wong, occupational therapist for tutoring (with no service provider indicated on the OCF-18), laptop, agenda/calendar and fidget toy. The goal of the treatment is for the applicant to return to activities of daily living.

48The applicant made no submissions regarding whether the plan for tutoring, laptop, agenda, calendar and fidget toy is reasonable and necessary and, instead, relied solely on her argument that the respondent’s denial was non-compliant under s.38(8) of the Schedule such that the amount of the treatment plan is payable.

49The respondent stated in their denial letter dated January 28, 2021 that they required additional documents and made a request under s.33 of the Schedule for the applicant’s school records for the period from September 2016 to January 28, 2021.

50The respondent submits that an Insurer’s Examination (“IE”) paper review report dated December 8, 2022 by Dr. Amena Syed, psychologist provides a medical reason for the denial of the plan. Dr. Syed concluded that the applicant’s ADHD and learning disabilities are not accident-related.

51The denial dated January 28, 2021 provides reasons specific to the applicant and the respondent requested further documentation in support of her claim to determine whether the disputed plan is reasonable and necessary. Accordingly, the denial complies with s.38(8) of the Schedule.

52Given that the respondent provided proper notice on January 28, 2021 and no submissions as to why this plan is reasonable and necessary, I find that the applicant has not met her burden to establish entitlement to this plan.

Issue #4- OCF-18 dated July 8, 2022 for the outstanding amount of $1,792.96

53I find that the applicant is not entitled to the unapproved portion of the July 8, 2022 OCF-18.

54The applicant submitted an OCF-18 dated July 8, 2022 for social rehabilitation counselling in the amount of $5,889.20 proposed by Shikha Patel, occupational therapist of Anchor Rehabilitation Support Services.. The respondent partially approved the treatment plan in the amount of $4,094.24 for sixteen 3 hour training sessions and documentation. The outstanding amount of $1,792.96 was comprised of:

i. Provider travel time-16 trips at a rate of $58.00 per hour at 1 hour each, totalling $928.00;

ii. Brokerage services-8 hours at a rate of $58.00 per hour, totaling $464.00, and;

iii. Claimant transportation to treatment-16 trips at $13.75, totaling $220.00.

a) Provider travel time

55The applicant submits that the applicant’s cognitive challenges and family situation requires home based treatment. The applicant has not produced any other medical documentation in addition to the disputed treatment plan in support of home-based social rehabilitation counselling.

56In contrast, the respondent argues that provider travel time is not payable under the Schedule and if payable, transportation is subject to a 50 km round trip deductible.

57I agree with the respondent that the applicant has not established how the expenses for provider travel time are payable or not excluded from the guidelines.

58I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $928.00 of the July 18, 2022 OCF-18.

b) Brokerage service

59The applicant submits that brokerage services are for collaboration between the applicant’s treatment providers.

60The respondent made no specific submissions on brokerage services except their previous submissions that brokerage services are not payable under the guidelines, which specifically excludes expenses related to professional services such as administration costs, overhead, and related costs.

61I find that the applicant has not provided an explanation for the additional amount of $464.00 for brokerage services beyond the amount which has already been paid. There is no explanation to distinguish the difference between the additional time of 8 hours for brokerage services where the respondent had already approved 8 hours of documentation support activities for $464.00.

62I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved portion of $464.00 of the July 18, 2022 OCF-18.

c) Claimant transportation to treatment

63The applicant made no submissions regarding the amount for claimant transportation to treatment, the dates of treatment or the distances for claimant transportation to treatment to calculate the 50 km roundtrip deductible.

64The respondent made no submissions on claimant transportation to treatment.

65I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $220.00 for claimant transportation to treatment of the July 18, 2022 OCF-18.

66I find that the applicant has not proven on a balance of probabilities, that she is entitled to the unapproved amount of $1,792.96 of the July 8, 2022 treatment plan.

Issue #5-OCF-6 dated August 11, 2020 for a replacement iPhone, screen saver and case

67I find that the applicant is not entitled to payment for a replacement iPhone, screen saver and case submitted on an OCF-6 on August 11, 2020.

68The applicant seeks payment for an expense in the amount of $515.21 for a replacement iPhone, screen saver and case. The applicant has not provided a copy of the Expense Form regarding the details of the submitted expense.

69The respondent argues that under s.24 of the Schedule only replacement costs of clothing, glasses, hearing aids and other medical or dental devices lost or damaged as a result of the accident are payable.

70I find that the applicant has not proven on a balance of probabilities that she is entitled to $515.21 for a replacement iPhone, screen saver and case.

ORDER

71For the reasons set out above, I find that:

i. The applicant may proceed with her claim for the outstanding balance of $442.20 in a treatment plan for occupational therapy services dated March 18, 2020 by NCCO Rehabilitation Services;

ii. The applicant is not entitled to the disputed treatment plans and expense form, and;

iii. The application is dismissed.