Licence Appeal Tribunal File Number: 22-001091/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:
Waseem Zafar
Applicant
and
Intact Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Shahzad Ayub, Counsel
For the Respondent:
Elizabeth Haring, Counsel
HEARD: In Writing
OVERVIEW
1Waseem Zafar, the applicant, was involved in an automobile accident on September 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, Intact 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 $1,247.35 ($4,239.55 less $2,992.20 approved) for psychological services proposed by TE Rehabilitation Services in an OCF-18/treatment plan (“plan”) dated July 26, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the remainder of the treatment plan for psychological services in the amount of $1, 247.35.
4The applicant is entitled to interest in accordance with s. 51 on any overdue payments.
PROCEDURAL ISSUE
Motion to strike reply submissions
5The respondent’s motion to strike the applicant’s reply submissions is partially granted.
6The respondent filed a notice of motion on August 22, 2023, to request that the motion be heard as a preliminary issue at the written hearing. The motion sought an order from the Tribunal to strike the applicant’s reply submissions on the basis they were delivered late, exceeded the page limit, and were an improper use of reply.
7The respondent submits that the applicant’s reply submissions were filed at 11:55 p.m. on August 21, 2023. I agree with the respondent that the filing was late, specifically, three days after the deadline set by the case conference report and order (“CCRO”), and well after the business day’s end. The applicant acknowledges the late delivery but submits that the delay was not a significant one, and submits that striking his reply submissions due to a clerical error would be an unfair penalty.
8The respondent also submits that the applicant’s reply submissions exceeded the page limit set by the CCRO, causing further unfairness as it had tailored its own submissions accordingly. It points out that the applicant’s reply submissions are in excess of the limit by two pages. While I disagree with the applicant’s rationale that the extra two pages could have fit within the limit if formatted differently, I do accept its position that, if necessary, an appropriate remedy may be striking the extra pages rather than the whole reply.
9The respondent’s third grounds for striking the reply submissions are that the applicant makes an improper use of reply by repeating his previous arguments (Sections A and B) and unfairly introducing new ones (Sections C and D). For his part, the applicant argues that any repetition only reflects negatively on himself, and notes that the arguments raised in sections C and D were made in response to the content of the respondent’s submissions. The applicant puts forth that striking any part of the reply should not be necessary, but if so, at most it could be limited to the paragraph level.
10I accept the applicant’s arguments that he should not be overly penalized for filing and formatting errors and that any repetition primarily affects himself. However, there remains the substantive issue of submissions that are beyond the permitted scope of reply. In sections C and D, the applicant introduces new information and advances new arguments surrounding the insurer’s examination (“IE”) and report. The applicant submits that the IE was procured improperly and that an applicant’s attendance at an IE does not constitute a waiver of proper notice. I find that neither party addressed these topics in their initial submissions. As a result, I have determined that sections C and D are excluded as they are beyond the permitted scope of reply.
11The respondent’s motion is partially granted. Sections C and D of the applicant’s reply submissions are excluded from consideration.
ANALYSIS
The applicant is entitled to the remainder of the treatment plan
12Pursuant to s. 38(8) of the Schedule, I find that the applicant is entitled to the remainder of the treatment plan in dispute.
13Section 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 as the medical and other reasons for any denial.
14The applicant submits that the treatment plan in dispute is payable in full, due to the respondent’s non-compliance with s. 38(8). He relies on the OCF-18 in dispute dated July 26, 2021, the accompanying s. 25 Psychological Assessment Report of Dr. Bhatia dated May 28, 2021, and the respondent’s denial notice dated August 4, 2021. He also refers me to the Tribunal’s decision in M.B. v Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) and outlines the necessary components for a valid denial notice as follows:
i. identifies what the insurer will pay for and what it will not pay for;
ii. contains medical and all the other reasons;
iii. is clear and contains specific details about the applicant’s medical condition or about information it does not have but requires, and
iv. refers to the specific benefit at issue and any applicable section of the Schedule upon which the insurer relies.
15The applicant further submits that a notice should both contain the above elements, and more generally, allow an unsophisticated person to make an informed decision about whether to dispute the denial or not.
16In this case, the applicant questions the respondent’s denial notice on various grounds. He argues that:
i. there are not enough substantive details in the objection to the length of the sessions;
ii. the reasons are not comprehensive because there is no medical reason offered;
iii. there is no clarity about what additional type of information is required; and
iv. the decision is unfair because it appears arbitrary and without justification.
17The respondent submits that the unapproved portion of the plan is not reasonable and necessary. However, this is not what is at issue. The question to be decided is whether the respondent’s denial notice was compliant. On this point, the respondent argues that its denial notice was issued within ten business days and provided adequate reasons. It relies on its denial letter dated August 4, 2021, and the s. 44 Psychological Assessment Report from Dr. Saghatoleslami, dated June 28, 2021.
18While both parties agree about the applicant’s need for psychological services, there is a difference of opinion regarding the appropriate length of the sessions, and the amount of time necessary for documentation support. The applicant submits that Dr. Bhatia recommended 16 sessions of once-weekly cognitive behavioural therapy (“CBT”) in his report. However, the corresponding OCF-18 proposed sessions of 90 minutes in length. The respondent approved only one-hour sessions.
19In support of its denial, the respondent points to the recommendation of Dr. Saghatoleslami and notes the s. 44 assessor was more precise than Dr. Bhatia about treatment recommendations. Dr Saghatoleslami specified not only the type of session, but also the length and scheduling frequency that was appropriate. In contrast, Dr. Bhatia’s report spoke to the type of session, and the number, but was silent about the length.
20Although the respondent’s submissions provide background and explanation with regard to its decision, importantly, the same information is not present in the denial notice. While the respondent’s denial notice acknowledged the need for the treatment plan to aid in the applicant’s recovery, and included a chart outlining what will be paid and what will not be paid. However, the explanation for the denied portion lacked clarity and enough detail for the applicant to make an informed decision about whether to dispute the denial or not. The notice reads that “we require additional information with respect to the nature and type of treatment in order to approve sessions of this length”.
21I am persuaded by the applicant’s argument that given the content of Dr. Bhatia’s report, it is unclear exactly what type of additional information was required to further specify “the nature and type of treatment”. Dr. Bhatia had already made diagnoses and proposed a treatment plan – it was only the length of each session that was not specified. The respondent did not make it clear what additional information would justify the 90-minute sessions.
22The respondent’s submissions for this hearing identified several ways the applicant could have provided the requested information:
i. The applicant could have addressed the assertion that one-hour is the length of a standard session.
ii. The applicant could have provided additional details to justify the note-taking portion of the sessions.
iii. The applicant could have explained the specific purpose of the pre-and post-planning time.
However, the denial notice did not include any of these examples or clear direction about what type of information was being requested. Consequently, I am not persuaded that the applicant could have discerned what information was missing, and therefore whether to dispute the denial or not.
23As a result, I find that the treatment plan is payable pursuant to s. 38(8) due to a lack of clarity surrounding what additional information was required of the applicant.
24The applicant is entitled to the remaining portion of the treatment plan.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
26The applicant is entitled to interest in accordance with s. 51 on overdue payment of benefits.
ORDER
27The applicant is entitled to the remainder of the treatment plan in the amount of $1,247.35, plus interest in accordance with s. 51.
Released: January 4, 2024
__________________________
Bonnie Oakes Charron
Adjudicator