Citation: Abdullahi v. BelairDirect Insurance Company, 2024 ONLAT 22-010480/AABS

Licence Appeal Tribunal File Number: 22-010480/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:

Aamir Abdullahi

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Ryan Naimark, Counsel Nergiz Sinjari, Counsel

For the Respondent: Nathalie Rosenthall, Counsel Branson Wong, Counsel

HEARD: By way of written submissions

OVERVIEW

1Aamir Abdullahi, the applicant, was involved in an automobile accident on December 28, 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, BelairDirect 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 $90.76 ($11,594.64 less $11,503.88 approved) for case management services proposed in a treatment plan (“OCF-18”) dated June 25, 2022?

ii. Is the applicant entitled to $960.00 ($4,518.47 less $3,558.47 approved) for physiotherapy services, proposed by Oakville Physio Aquatic Centre Inc. in an OCF-18 dated August 25, 2022?

iii. Is the applicant entitled to $64.64 ($11,856.64 less $11,792.00 approved) for occupational therapy services, proposed by HAL Disability Management in an OCF-18 dated June 15, 2022?

iv. Is the applicant entitled to $4,400.00 ($8,000.00 less $3,600.00 approved) for social work services, proposed by IM-OT in an OCF-18 dated August 25, 2022?

v. Is the applicant entitled to $3,640.00 ($7,659.93 less $4,019.93 approved) for physiotherapy services, proposed by HealthMax in an OCF-18 dated September 8, 2022?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

3In his written hearing submissions, the applicant requested to add the issue of whether the respondent is liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant.

RESULT

4For the reasons that follow I find that:

i. The applicant is entitled to the outstanding balance of $90.76 and $64.64 for the OCF-18s dated June 25, 2022 and June 15, 2022, plus interest;

ii. The applicant is not entitled to $960.00 for transportation costs proposed in the OCF-18 dated August 25, 2022 for physiotherapy services;

iii. With respect to the OCF-18 dated August 25, 2022 for social work services, the applicant is entitled to $80.00 for the completion of the OCF-18, plus interest. However, the applicant has not established entitlement to the remaining balance of $4,320.00;

iv. With respect to the OCF-18 dated September 8, 2022 the outstanding balance of $2,040.00 is payable pursuant to s. 38(11) of the Schedule, plus interest; and

v. The respondent is not liable to pay an award.

PROCEDURAL ISSUE

5In his written hearing submissions, the applicant requests that the issue of a s. 10 award be added as an issue in dispute to this written hearing. He submits that the Tribunal has inherent jurisdiction to add an award at the hearing stage, and that the bar for doing so is very low. The applicant cites a number of Tribunal decisions where the issue of an award was added at the hearing.

6The respondent objects to adding this issue, as it was not raised by the applicant in his application, at the case conference or by way of a motion seeking to add an issue in dispute. The respondent argues that it would be contrary to procedural fairness to add the issue of an award with such short notice, as it would be unable to adequately prepare its defence to this issue. The respondent cites a number of Tribunal decisions where the request to add a s. 10 award at a hearing was denied.

7The applicant’s request to add the issue of an award is granted. I agree with the reasoning in the decision cited by the applicant, Macintosh v Intact Insurance Company, 2024 CanLII 10511 (ON LAT), that the Tribunal has inherent jurisdiction to consider an award at any part in the proceeding. In Macintosh, the Tribunal cited the Divisional Court decision Waldock v. State Farm Mutual Automobile Insurance Company, 2019 ONSC 6105, where it was noted that a special award is “always a possibility” if an arbitrator finds that the payment of benefits was unreasonably withheld or delayed.

8I further find that it would not be procedurally unfair to the respondent to add the issue of a s. 10 award. The applicant has led evidence of correspondence from his counsel to the respondent’s, where it was indicated that the applicant would be seeking an award. Further, the respondent had the opportunity to respond to the applicant’s award claim in its responding submissions.

9As such, the issue of whether the respondent unreasonably withheld or delayed payments to the applicant will be added as an issue in dispute in this hearing.

BACKGROUND

10The applicant was involved in a serious pedestrian/motor vehicle accident which rendered him catastrophically impaired. The applicant applied for and received accident benefit payments from the respondent, however, a dispute arose as to the respondent’s partial denial of certain treatment plans.

11The applicant is seeking the outstanding balance of five treatment plans that the respondent had partially denied, plus interest. The respondent’s denials were for administrative expenses that the respondent submits are not reasonable and necessary, a dispute over the length of time of therapy sessions, and transportation costs.

ANALYSIS

12Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

13The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

Outstanding amount of $90.76 from OCF-18 dated June 25, 2022

Outstanding amount of $64.64 from OCF-18 dated June 15, 2022

14The applicant is entitled to the outstanding balance of $90.76 and $64.64 from the OCF-18s dated June 25, 2022 and June 15, 2022.

15The two treatment plans were for case management services and occupational therapy services. The OCF-18s were approved in full by the respondent, other than $90.76 and $64.64 which were the outstanding fees for “form completion”. Both OCF-18s had listed $200.00 for the completion of the respective OCF-18 form. However, the respondent had approved the form completion fee for one hour of the service provider’s hourly specified rate and denied the remaining amount.

16The applicant submits that the respondent has failed to explain why it has reduced the “industry standard” rate of $200.00 for OCF-18 form completion to only one hour of a health care provider’s time. He argues that the Financial Services Commission of Ontario’s Professional Services Guideline – Superintendent’s Guideline No. 03/14 (“Guideline”) allows for a maximum of $200.00 for the completion of an OCF-18 irrespective of the hourly rate of a service provider. The applicant submits that the person completing the OCF-18 may not be the same person who will be providing the treatment, and relies on the Tribunal decision Ossipova v BelairDirect Insurance Company, 2023 CanLII 40135 to argue that the form completion fee is a separate cost considered apart from hourly rates.

17The respondent submits that the applicant has not met his onus to prove that the maximum $200.00 Guideline form completion fee is reasonable and necessary. It argues that it approved an amount equal to one hour of the service provider’s rate commensurate with the rates stipulated in the Guideline. The respondent submits that the applicant has not led evidence that additional time was required to complete the form, and that the applicant is attempting to wrongfully shift the onus to the respondent. Rather, the onus rests with the applicant to lead evidence as to why time up to the allowable $200.00 limit was necessary.

18I find that the applicant has met his onus to prove that the outstanding amounts for the form completion are reasonable and necessary.

19Although I agree with the respondent that the onus rests with the applicant to establish why the full $200.00 is reasonable and necessary, in my view, the applicant has led sufficient evidence to meet this onus. With respect to the OCF-18 dated June 15, 2022 for occupational therapy services, the applicant submitted an email from his occupational therapist (“OT”). In this email, the clinic owner specified that the completion of the OCF-18s is a joint effort between the provider and administration, with consultation and back and forth and the need to determine treatment codes and input information, all of which surpasses an hour and a half. I agree with the applicant that the explanation from his OT establishes why the completion of the OCF-18 would take more than one hour.

20Similarly with respect to the OCF-18 dated June 25, 2022 for case management services, I find that the applicant has established that the outstanding balance of $90.76 is reasonable and necessary. This OCF-18 was the first treatment plan submitted for case management services. The applicant submits that the form completion was a joint effort which required the person completing the form to review the file and records for a catastrophically impaired person. I agree with the applicant that a $200 fee for OCF-18 completion is reasonable and necessary in this instance.

Outstanding amount of $960.00 for transportation costs, proposed in an OCF-18 dated August 25, 2022

21The applicant has not established entitlement to the outstanding balance of the OCF-18 dated August 25, 2022. The OCF-18 proposed $4,518.47 for physiotherapy services, documentation and facility fees, and costs for “claimant transportation to treatment”. The respondent partially approved the OCF-18, denying only the $960.00 in transportation costs.

22I find that the applicant has not met his onus to prove that the denied transportation costs are reasonable and necessary.

23In its letter dated September 9, 2022, the respondent stated that it had already arranged a transportation account for the applicant, which could be used to attend therapy sessions, and denied the $960.00 in transportation costs. The applicant argues that at $60 a round trip, the proposed transportation costs had been found to be reasonable in other Tribunal decisions, and that the respondent should not be permitted to control the applicant’s mode of transportation. He submits that there is no requirement in the Schedule for the applicant to use an insurer’s transportation company.

24While I agree with the applicant that there is no requirement that an insured use transportation services arranged by an insurer, the onus rests with the applicant to establish why $960.00 in transportation costs were reasonable and necessary, when transportation had already been arranged. The respondent argues that this $960.00 cost would be a duplication of costs. The applicant did not provide any specific submissions on why the respondent’s transportation services should not be used.

25The applicant provides the general argument that he needed assistance with going to and from treatment and that it was easier for him if the transportation was arranged by the service provider. However, no evidence was led in support of this claim. The applicant does not provide details or direct me to evidence as to the type of transportation his service provider uses, what assistance he requires, and how the respondent’s transportation would be lacking. The applicant provides general submissions on the issue, but it is well-settled that submissions alone are not evidence. The applicant further argues that the respondent has not provided details about how to access the account. However, the applicant has not led any evidence as to whether he had inquired or requested any details about the transportation account.

26As such, I find that the applicant has not met his burden to prove that the outstanding amount of $960.00 for transportation costs is reasonable and necessary.

Outstanding amount of $4,400.00 from the OCF-18 dated August 25, 2022

27The applicant submitted an OCF-18 in the amount of $8,000.00 for social work services. The respondent partially approved the treatment plan in the amount of $3,600.00. It denied brokerage and planning costs, partially approved the $200.00 fee for OCF-18 completion for one hour of the service provider’s time, and approved the social work therapy sessions for one hour, rather than the requested two hours.

28For the reasons outlined above, I find that the applicant has established that the outstanding $80.00 for the completion of the OCF-18 is reasonable and necessary. However, the applicant has not met his onus to prove that the remaining balance of $4,320.00 is reasonable and necessary.

29The applicant has not provided any specific submissions or directed me to evidence as to why planning and brokerage costs, or the additional hour per therapeutic session were reasonable and necessary. I agree with the respondent and its cited Tribunal decisions that the onus rests with the applicant to prove entitlement to the requested costs and longer treatment sessions. Without submissions or evidence in support of these items, the applicant has not met his onus to prove that they are reasonable and necessary.

30I further am not persuaded by the applicant’s additional argument that the respondent denied the longer social work therapy sessions without any medical reasons. In its letter dated September 13, 2022, the respondent stated that it required additional information regarding the nature and type of treatment in order to approve the additional one hour of treatment per session. I agree with the respondent that the letter provided clear reasons for the partial denial and further, that it specified what information it did not have, but still required. The applicant does not direct me to any evidence as to whether this additional information was provided to the respondent.

Outstanding amount of $3,640.00 from the OCF-18 dated September 8, 2022

31The applicant submitted an OCF-18 in the amount of $7,659.93 for a combination of chiropractic, physiotherapy, laser, massage and acupuncture treatment. The respondent initially partially approved the plan in the amount of $4,019.93, denying the portion of the plan relating to laser, shockwave and acupuncture treatment. The parties agree that the respondent subsequently approved the shockwave therapy and that only laser therapy and acupuncture treatment remain outstanding, totalling $2,040.00.

32I find that the remaining outstanding balance of $2,040.00 is payable pursuant to s. 38(11) of the Schedule due to the respondent’s non-compliance with s. 38(8).

33I agree with the applicant that the respondent did not provide medical reasons for the denial of laser therapy and acupuncture treatment. In its letter dated September 21, 2022, the respondent stated that since it was already approving two forms of passive therapy, it is “unclear” whether the three further forms of passive therapy (laser, shockwave and acupuncture) were also reasonable and necessary. It stated that it would be requiring an insurer’s examination (“IE”). However, in a subsequent letter the respondent said that it had “reached an agreement” with the service provider and that shockwave treatment was approved and the scheduled IE had been cancelled. No further details were provided by the respondent.

34The respondent submits that its adjuster had spoken with the service provider and that an agreement had been reached where the plan would be amended to remove laser and acupuncture treatment in exchange for the approval of shockwave treatment. However, no evidence was led in support of this claim. Rather, the applicant has tendered an email from the service provider in question dated March 8, 2024, indicating that an IE was to have been arranged to address the denied services, but that no IE report had been received. As such, the evidence supports the applicant’s submissions that no agreement had been reached as to the denied services.

35Accordingly, I agree with the applicant that the respondent has not provided a reason for the denial of the laser therapy and acupuncture treatment. The combination of the September 21, 2022 and October 4, 2022 letters was confusing and did not provide the applicant with reasons for the denial, clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision. I find that the respondent was non-compliant with s. 38(8) of the Schedule.

36I further do not agree with the respondent’s submissions that even if it was non-compliant with s. 38(8), the outstanding balance would not be payable, as it had not been incurred by the applicant. Given that no other correspondence from the respondent was submitted with respect to this OCF-18, the respondent no longer has the opportunity to issue a proper denial notice, as a decision has been rendered regarding this benefit (see Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200) (“Suarez”). In Suarez, the Divisional Court ruled that where an insurer fails to provide a proper s. 38(8) notice and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to incur the disputed OCF-18.

37As such, I find that pursuant to s. 38(11)2, the outstanding balance of $2,040.00 is payable by the respondent upon proof that the denied treatment has been incurred.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the outstanding balances of the OCF-18s dated June 25, 2022, June 15, 2022, September 8, 2022 and $80.00 for the completion of the OCF-18 dated August 25, 2022.

Award

39The applicant sought an award under s. 10 of Regulation 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. The applicant submits that the respondent continued to unreasonably maintain its denials without any basis or rationale.

40I do not find that the applicant has established a basis for an award. The threshold for an award is high. Although I have found that the applicant is entitled to the outstanding balance of certain treatment plans, I note that an award is not necessarily warranted simply because the respondent came to an incorrect determination. I do not find the respondent’s behaviour to be excessively impudent, stubborn, unyielding or immoderate. As such, the applicant is not entitled to an award.

ORDER

41For the reasons stated above, I find that:

i. The applicant is entitled to the outstanding balance of $90.76 and $64.64 for the OCF-18s dated June 25, 2022 and June 15, 2022, plus interest;

ii. The applicant is not entitled to $960.00 for transportation costs proposed in the OCF-18 dated August 25, 2022;

iii. With respect to the OCF-18 dated August 25, 2022 for social work services, the applicant is entitled to $80.00 for the completion of the OCF-18, plus interest. However, the applicant has not established entitlement to the remaining balance of $4,320.00;

iv. With respect to the OCF-18 dated September 8, 2022 the outstanding balance of $2,040.00 is payable pursuant to s. 38(11) of the Schedule, plus interest; and

v. The respondent is not liable to pay an award