Licence Appeal Tribunal File Number: 23-000205/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:
Jocelyn Weber
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Gordon W Harris, Counsel
For the Respondent: Athina Ionita, Counsel
HEARD: In Writing
OVERVIEW
1Jocelyn Weber, the applicant, was involved in an automobile accident on March 9, 2017, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2Preliminary Issues: The preliminary issues to be decided are:
a) Is the applicant barred from proceeding to a hearing for the following benefit: substantive issue a) for failing to dispute the denial with the 2-year limitation period?
b) Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because she failed to attend an insurer’s examination pursuant to s. 44 of the Schedule?
3Substantive Issues: The substantive issues to be decided are:
a) Is the applicant entitled to $2,200.00 for a sleep assessment proposed by Dr. Chunkwuma Ogungua in a treatment plan/OCF-18 (“plan”) dated November 4, 2020?
b) Is the applicant entitled to $2,941.57 for an interdisciplinary chronic pain assessment proposed by Michael G. Degroote Pain Clinic in a plan dated July 13, 2020?
c) Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
d) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not statute barred from proceeding with substantive issue (a) pursuant to s. 56 of the Schedule or from proceeding to a hearing for all the benefits claimed on this application because she failed to attend a s. 44 assessment.
5The applicant is not entitled to $2,200.00 for a sleep study assessment.
6The applicant is entitled to $2,941.57 for an interdisciplinary chronic pain assessment.
7The applicant entitled to interest on the overdue payment of benefits related to interdisciplinary chronic pain assessment.
8The applicant is not entitled to an award.
ANALYSIS - PRELIMINARY ISSUES
Is the applicant statute barred from proceeding with substantive issue (a)?
9The limitation period for accident benefits claims is set out in s. 56 of the Schedule. It states that applications to dispute the denial of a benefit shall be commenced two years after the insurer’s refusal to pay the benefit.
10In order for s. 56 to be triggered, the respondent must have provided a valid notice of denial in accordance with the principles set out in Smith v. Co-operators General Insurance Company, 2002 SCC 30 (“Smith”). According to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial.
11Further, pursuant to T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“T.F.”) and Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (“Hedley”), the notice must provide a valid medical and any other reason for the denial.
12I find that the respondent provided a valid notice of denial in compliance with the Schedule on January 7, 2021. The explanation of benefits (“EOB”) indicated that the respondent was unable to determine if the proposed sleep study was reasonable and necessary as a direct result of the accident and as a result it would be referring the matter to a section 44 assessment to obtain a medical opinion. This valid denial triggered the limitation period.
13I find that the denial was sufficiently clear and outlined the two-year time limit to dispute the decision, and that the limitation period for the treatment plan was triggered on January 7, 2021, by the valid denial.
14The two-year limitation to dispute the valid denial expired on January 7, 2023. The application to the Tribunal was filed on January 9, 2023.
15The respondent submits that the applicant was two days late for disputing this denial and the applicant is therefore barred from disputing it. The applicant submits that January 7, 2023 was a Saturday, and that pursuant to section 3(1) of the Schedule, “business day” excludes Saturdays or Sundays. The applicant argues that pursuant to section 64(26) of the Schedule, “if a time period in which a person is required to do anything expires on a day that is not a business day, the time period is deemed to expire on the next day that is a business day”. The applicant submits that this would extend the limitation period to January 9, 2023, the day that the Tribunal application was filed.
16I accept the applicant’s explanation and find that the application was not filed late. Accordingly, I find that the applicant is not statute barred from proceeding to a hearing for substantive issue (a).
Is the applicant statute barred from proceeding to a hearing for all substantive issues for failing to attend an insurer’s examination?
17I find that the applicant is not statute barred from proceeding to a hearing for failing to attend an insurer’s examination (“IE”) because the notice of examination (“NOE”) was non-compliant with s. 44(5)(a) of the Schedule.
18Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. The insured person has the onus to establish a reasonable explanation for not attending an examination.
19The requirements for a NOE are set out in s. 44(5) of the Schedule:
If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
a) the medical and any other reasons for the examination;
b) whether the attendance of the insured is required at the examination;
c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
d) if the attendance of the insured person is required at the examination, the day, time, and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
20Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided them with notice that it requires an examination under section 44, but the insured person has not complied.
21These provisions of the Schedule make it clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice.
22The respondent must establish that a NOE is compliant with s. 44(5) of the Schedule to rely on it as a basis to seek a statutory bar under s. 55. In seeking such a remedy, the respondent must ensure that the NOE provides specific details of the applicant’s conditions, the benefit in dispute, and any section it relies upon. (See Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT); and 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)). Again, the reasons must be clear enough so that an unsophisticated person can make a well-informed decision on whether to attend the examination.
23The respondent submits that the applicant has failed to attend s. 44 assessments related to both treatment plans in dispute and failed to provide an explanation for her non-attendance. The respondent argues that simply because the notice of examination is contested does not mean the applicant is not responsible for attending the examination.
24According to the respondent, the applicant first sent correspondence with respect to a NOE on July 28, 2021, which was after the applicant had already failed to attend the first examination that was set out in a NOE dated January 20, 2021. The respondent submits that the assessment was scheduled to have taken place on February 11, 2021, in relation to the disputed sleep study assessment. The respondent also submits that there is no evidence to support the applicant’s alleged inability to travel the required distance to the examination, and there was no objection to the examination regarding the location of the examination after the examination was scheduled and the NOE was sent to the applicant on January 20, 2021.
25The respondent argues that the NOEs clearly indicate the name of the professional conducting the examination, the profession and designation, as well as specialty, which is noted as “fellowship in respirology with a specialization in sleep studies” on the NOE dated January 20, 2021.
26The applicant submits that the NOEs dated January 20, 2021, and July 26, 2021, were deficient for the following reasons:
a) the NOE dated January 20, 2021, referred to whether a psychological assessment was reasonable and necessary, when in reality a sleep study assessment was in dispute;
b) inadequate and improper medical reasons were provided on the NOEs; and
c) the respondent incorrectly relied on section 47(2) of the Schedule in denying the proposed interdisciplinary chronic pain assessment when it stated that the Schedule does not require insurers to pay for assessments that are funded through OHIP.
27The applicant argues that in addition to not responding to her July 28, 2021, letter requesting NOE clarification with respect to location of the assessment, the qualifications of the assessor, and the medical reasons for the assessment, the respondent sent no further notices of a section 44 assessment to correct the deficiencies.
28Even if I accept that the medical reasons listed on the July 26, 2021, NOE are sufficient, I find that the NOE is deficient because it does not provide Dr. Sangita Sharma’s medical speciality apart from noting that she is a “medical physician”. For example, it would not be within the scope of practice for a respirologist to address whether the psychological portion of a chronic pain assessment is reasonable and necessary, just as it would not be within the scope of a psychologist to address whether a sleep study assessment was reasonable and necessary. I find that the NOE is deficient because it is confusing and not sufficient to allow an unsophisticated person to make an informed decision to attend the IE. I also find it relevant that the respondent did not try to cure the NOE deficiencies in response to the applicant’s July 28, 2021, letter.
29For these reasons, I find that respondent provided deficient notice pursuant to section 44(5) of the Schedule and I accept the applicant’s reasons for her non-attendance. Therefore, she is not barred from proceeding to a hearing on the substantive issues.
ANALYSIS – SUBSTANTIVE ISSUES
Sleep study assessment
30I find, on a balance of probabilities, that the applicant is not entitled to $2,200.00 for a sleep study assessment.
31To 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.
32The treatment plan proposed by Dr. Chunkwuma Ogungua lists the assessment goals as determining if the applicant suffers from a sleep disorder and determining whether treatment is necessary.
33The applicant submits that she has consistently reported sleeping difficulties and associated fatigue to her healthcare providers, including her family physician, Dr. Muhammad Shahnawaz, and that it has impacted her life and impaired her ability to engage in tasks such as driving herself to appointments. The applicant also submits that on March 8, 2021, Dr. Shahnawaz increased her dose of Trazadone as a sleep aid because the previous dosage was no longer effective.
34According to the applicant, the proposed sleep study should be deemed incurred pursuant to section 3(8) of the Schedule because the respondent unreasonably withheld payment based on invalid explanation of benefits and section 44 notices.
35The respondent submits that there is no indication in the medical evidence that the applicant requires a sleep assessment, and it is not clear what this assessment hopes to achieve as far as the applicant’s recovery goes.
36I am not persuaded by the applicant’s submissions. Apart from Dr. Ogungua who proposed the treatment plan, the applicant did not point me to any other evidence of a sleep study being recommended, despite having sleep symptoms. I find that change in the dosage of Trazodone does not support the need for a sleep study assessment. There are numerous reasons, including tolerance to a medication over time, that could necessitate an increased dosage when a previous dosage is no longer effective. I also find that there are several factors that could impact the applicant’s sleep and fatigue that do not warrant a sleep study assessment, such as psychological symptoms.
37For these reasons, the applicant has not satisfied me, on a balance of probabilities, that the proposed sleep study is reasonable and necessary.
Interdisciplinary chronic pain assessment
38I find that the applicant is entitled to $2,941.57 for an interdisciplinary chronic pain assessment.
39The treatment plan proposed by Michael G Degroote Pain Clinic calls for 4 hours of physician review and assessment to determine the applicant’s stability to participate in the program for a total of $1,200.00, 7 hours of psychological investigation, interview and diagnosis to determine psychological factors contributing to the applicant’s chronic pain problems and assessment of co-morbidities such as depression and anxiety for a total of $1,047.27, 5 hours of occupational therapist/social worker review of the applicant’s function and identifying barriers to managing the applicant’s pain more effectively, and $200.00 for the completion of a treatment plan. The goal of the assessment is to determine whether the applicant can benefit from treatment at the Michael G. DeGroote Pain Clinic – Intensive Program.
40The applicant submits that the interdisciplinary chronic pain assessment was incurred on September 30, 2021, and that it was reasonable and necessary to determine the best course of treatment for her chronic pain given her history of addictions and resultant unsuitability for narcotic pain medication to manage pain. The applicant also submits that she was diagnosed with what is likely chronic pain syndrome by orthopaedic surgeon Dr. Tajedin Getahun which supports the need for the proposed assessment.
41The respondent submits that the treatment plan in dispute is for multiple assessments and documentation support, involving psychological, physician, and occupational therapist/social worker led portions. The respondent argues that the applicant has already been approved for a psychological assessment in the amount of $2,989.06, and that this would render the proposed assessment duplicative and excessive. Even if the Tribunal accepts that the applicant does have chronic pain, as submitted by the applicant, it is still not clear how the proposed assessment would assist the applicant with her condition, or how a psychological assessment forms part of a chronic pain program.
42I find the applicant’s submissions to be persuasive. I accept that the applicant suffers from chronic pain based on the medical evidence from Dr. Getahun, the clinical notes of Dr. Shahnawaz, and that her circumstances for treatment are atypical given her history of addictions. I find that the applicant’s history of addiction makes suitable treatment choices and options limited and challenging. While I recognize that the respondent has previously approved a psychological assessment, I find that the proposed interdisciplinary chronic pain assessment that incorporates a psychological component specifically addressing chronic pain management is unique and not duplicative or excessive. The goal of the proposed assessment is to determine the applicant’s suitability for an intensive interdisciplinary chronic pain program which has not been previously assessed.
43For these reasons, I find on a balance of probabilities that the proposed treatment plan is reasonable and necessary.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on incurred expenses related to the proposed interdisciplinary chronic pain assessment.
Award
45The 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.
46The applicant submits that she is entitled to an award because the preliminary issue related to a s. 44 assessment with Dr. Sharma was doomed to fail, the respondent did not reply to the applicant’s NOE concerns on July 28, 2021, which caused substantial delays in treatment, and the respondent’s denials have been lacking sufficient medical reasons which resulted in the withholding of benefits.
47Although I have found that the applicant is entitled to an interdisciplinary chronic pain assessment, the threshold for an award is high. In this case, I do not find the respondent’s behaviour to be excessively impudent, stubborn, unyielding, or immoderate. As such, I find that the applicant is not entitled to an award.
ORDER
48The applicant is not statute barred from proceeding with substantive issue (a) pursuant to s. 56 of the Schedule or from proceeding to a hearing for all the benefits claimed on this application because she failed to attend a s. 44 assessment.
49The applicant is not entitled to $2,200.00 for a sleep study assessment.
50The applicant is entitled to $2,941.57 for an interdisciplinary chronic pain assessment.
51The applicant entitled to interest on the overdue payment of benefits related to the interdisciplinary chronic pain assessment.
52The applicant is not entitled to an award.
Released: December 16, 2024
Tyler Moore
Vice-Chair