Esteki v. Intact Insurance Company, 2024 CanLII 2631

Citation: Esteki v. Intact Insurance Company, 2024 CanLII 2631

Licence Appeal Tribunal File Number: 21-010739/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:

Soraya Esteki

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Adesina John, Paralegal

For the Respondent: Emma Duggan, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Soraya Esteki (the “applicant”) was involved in an automobile accident on September 9, 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 Intact Insurance Company (the “respondent”) 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 $2,198.80 for psychological services, proposed in a treatment plan/OCF-18 (“OCF-18”), by Imperial Medical Assessments, dated April 8, 2019, and denied on April 18, 2019?

ii. Is the applicant entitled to $250.00 for a pre-screen assessment proposed in an OCF-18 recommended by Imperial Medical Assessments, dated April 8, 2019, and denied on April 18, 2019?

iii. Is the applicant entitled to $4,157.85 for chiropractic, massage, and acupuncture services, recommended by Newmarket Health & Wellness Center, in an OCF-18, dated March 25, 2021, and denied on April 5, 2021?

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

RESULT

3I find that:

i. The applicant is entitled to any amounts incurred for the OCF-18s dated April 8, 2019, for psychological services and a pre-screen assessment, starting on the 11th business day after the respondent received the plans, with interest in accordance with s. 51 of the Schedule.

ii. I decline to exercise my discretion pursuant to s. 3(8) of the Schedule to deem incurred the expenses pertaining to the OCF-18s, dated April 8, 2019, for psychological services and a pre-screen assessment.

iii. The applicant is not entitled to the OCF-18 in the amount of $4,157.85 for chiropractic, massage, and acupuncture services as she has not established that on a balance of probabilities, the proposed services are reasonable and necessary. As a result, she is not entitled to interest with respect to this OCF-18 pursuant to s. 51 of the Schedule.

ANALYSIS

Reasonable and Necessary

4To 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.

5The applicant’s initial submissions focused on why her injuries should not be classified within the MIG, as this was an issue in dispute at the time of the case conference. However, the respondent in its submissions clarified that the applicant was removed from the MIG on August 1, 2023, based on a s. 44 psychological assessment completed by Dr. Sarah Talebizadeh, psychologist. Moreover, despite the applicant’s submission, it is well-established that the onus rests with the applicant to establish that the proposed OCF-18s are reasonable and necessary, and not on the respondent (see: Scarlett v. Belair Insurance, 2015 ONSC 3635).

The respondent was non-compliant with s. 38(8) of the Schedule with respect to the OCF-18s in the amounts of $2,198.80 for psychological services, and $250.00 for a pre-screen assessment, dated April 8, 2019

6I find that the denial letter, dated April 18, 2019, was non-compliant with s. 38(8) of the Schedule.

7Sections 38(8) and (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 of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

8The applicant’s submissions are difficult to follow. The applicant in her initial submissions argued that the denial letter, dated April 18, 2019, did not provide a medical reason as required pursuant to s. 38(8) of the Schedule and the denial letter lacked clarity as to which medical documentation was reviewed by the respondent in making the decision to deny the proposed OCF-18s. The applicant seeks that the proposed OCF-18s be deemed incurred pursuant to s. 3(8) of the Schedule by the Tribunal.

9The respondent submits that on August 10, 2023, the applicant was advised that the proposed OCF-18s for psychological services and a pre-screen assessment were approved in their full amounts, and as such, these OCF-18s are no longer in dispute at this hearing.

10In response, the applicant submits entitlement to the OCF-18s are still in dispute as she has not completely incurred the OCF-18s. To this end, the applicant enclosed an invoice from Imperial Medical Assessment Inc., which shows a balance of $450.00 for both OCF-18s.

11On April 18, 2019, the respondent sent a denial letter to the applicant that it did not agree to pay for the proposed psychological services and pre-screen assessment as upon review of the available medical documentation, it believed that the applicant’s injuries fell within the MIG. The respondent also advised that it wanted to arrange s. 44 insurer’s examinations to determine whether the proposed services were reasonable and necessary.

12I find that the denial letter dated April 18, 2019, does not comply with the requirements pursuant to s. 38(8) of the Schedule as it failed to provide adequate medical reasons to deny the disputed OCF-18s. The reasons provided in the notice are insufficient to satisfy the respondent’s obligation under s. 38(8) of the Schedule as no specific details about the applicant’s diagnosis, prognosis, or the details of the treatment plans were provided. Nor did the respondent identify what information it reviewed in making its determination or what information it required from the applicant. In my view, the respondent’s denial lacked clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial.

13Accordingly, I find that respondent’s denial letter dated April 18, 2019, is non-compliant with s. 38(8) of the Schedule, and the respondent has not pointed me to correspondence that cures this deficient denial letter. The applicant has also provided evidence that she has incurred $450.00 with respect to these OCF-18s.

14Consequently, the provisions set out in s. 38(11) of the Schedule are triggered, and the incurred portion of the plans dated April 8, 2019, for psychological services and a pre-screen assessment is payable starting on the 11th business day after the respondent received the plan and applicable interest.

15On August 10, 2023, the respondent advised the applicant that the OCF-18s were approved in their full amounts and its decision could not be updated on Health Claims for Auto Insurance (“HCAI”), as such, that the clinic could proceed to submit invoices for the OCF-18s once incurred. However, the applicant is seeking relief from the Tribunal that the proposed OCF-18s be deemed incurred pursuant to s. 3(8) of the Schedule, I will now be considering that below.

The OCF-18s in the amounts of $2,198.80 for psychological services, and $250.00 for a pre-screen assessment, dated April 8, 2019, are not deemed incurred

15I find that the applicant has not established that the respondent unreasonably withheld or delayed payment of the proposed OCF-18s, and as such, I decline to exercise my discretion pursuant to s. 3(8) of the Schedule and these OCF-18s are not deemed incurred.

16Pursuant to s. 3(8) of the Schedule, if I find that the applicant did not obtain the treatment set out in the treatment plans listed above because the respondent unreasonably withheld or delayed payment of the medical benefits claimed, I may, for the purpose of determining the applicant’s entitlement to the benefit, deem the expenses to have been incurred.

17As noted above, the applicant seeks that the OCF-18s be deemed incurred in their entirety by the Tribunal. As stated previously, the applicant’s submissions are difficult to follow, and she appears to submit that the respondent improperly handled and delayed her matter by keeping her in the MIG, despite her being diagnosed with a psychological impairment in a pre-screen interview, dated April 5, 2019, and a s. 25 report, dated June 15, 2023, and because the respondent was noncompliant with s. 38(8) of the Schedule in its denial letter, dated April 18, 2019.

18The respondent submits that the applicant is the sole cause of any delay in adjusting her claim, as it repeatedly requested that the applicant provide medical records pursuant to s. 33 of the Schedule and attend s. 44 insurer’s assessments to determine whether she had psychological impairments that would warrant removal from the MIG.

15The wording of “unreasonably withheld or delayed payment” in s. 3(8) is the exact wording used in s. 10 of O. Reg. 664 to determine an applicant’s entitlement to an award. Awards under s. 10 of O. Reg. 664 are not ordered simply because an insurer made an incorrect decision. Rather, there must be evidence of conduct by the insurer that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I find that these principles apply equally to the test for deeming an expense incurred pursuant s. 3(8) of the Schedule.

16In this matter, although I have determined that the respondent was non-compliant with s. 38(8) of the Schedule, I find the applicant has not established that the respondent unreasonably withheld or delayed payment of the proposed OCF-18s.

17The applicant has not provided submissions or pointed me to evidence to demonstrate that the respondent’s non-compliance with s.38(8) of the Schedule rose to a level that its conduct was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The applicant has not established that she did not obtain the proposed treatment because of the respondent’s non-compliance with s. 38(8) of the Schedule. In fact, she provided invoices that demonstrated she incurred $450.00 towards the respective OCF-18s. Lastly, while the applicant submits that she will no longer pursue services through this treatment provider, she did not provide a rationale for this, nor did she establish whether this was due to the respondent’s conduct.

18The applicant has also not established that the respondent unreasonably withheld or delayed payment of these OCF-18s by holding her in the MIG.

19I agree with the respondent that the applicant has played a significant part in the delay of this matter, especially given the numerous s. 33 requests by the respondent and her delay in attending the s. 44 psychological assessment. While I am alive to the applicant’s position that s. 33 of the Schedule only applies to specified benefits, a plain reading of the section makes it clear that the respondent may request any information reasonably required to assist in determining the applicant’s entitlement to a benefit, which includes medical benefits.

20The respondent has made numerous requests pursuant to s. 33 of the Schedule, on April 12, 2019, April 5, 2021, April 27, 2021, March 3, 2022, December 20, 2022, and April 21, 2023, for the records of the applicant’s family physician from September 2015 to present, decoded OHIP Summary from September 9, 2017, to present, and hospital records from September 2018 to present. The respondent submits that on May 15, 2023, the applicant provided the clinical notes and records of her family physician but only for the time period of September 27, 2022, to May 15, 2023, which the applicant did not dispute in her reply submissions.

21The respondent has also attempted to arrange a s. 44 psychological assessment to determine whether the proposed OCF-18s were reasonable and necessary on May 7, 2019, April 19, 2023, and June 5, 2023. The applicant attended the s.44 psychological assessment on July 11, 2023 (nearly four years after the respondent’s first request) and was subsequently removed from the MIG on the basis of her psychological impairments.

22The applicant appears to argue in her submissions that the s.44 assessment was not necessary because she was diagnosed with a psychological impairment. It appears that the applicant is relying on the provisional diagnosis of an Adjustment Disorder made by Ms. Razumova, in a pre-screen interview, on April 5, 2019, and on the diagnoses made by s. 25 assessor, Dr. Lotfalizadeh, in a report, dated June 15, 2023. In a psychological assessment report, dated June 15, 2023, Dr. Lotfalizadeh diagnosed the applicant with: adjustment-like disorder with a prolonged duration of more than six months, somatic symptom disorder, with predominant pain, persistent, and specific phobia, situational type (driving and passenger related).

23The applicant’s legal representative advised the respondent on January 18, 2023, that the applicant would attend the insurer’s examination and did not raise any issues at that time with respect to attending. Moreover, the applicant did not point me to evidence that demonstrates that she raised issues with the s. 44 psychological assessment with the respondent prior to her submissions. Accordingly, I find that it was the applicant and not the respondent who played a significant role in the delay in removing her from the MIG on the basis of a psychological impairment.

24Moreover, the applicant has not established that the respondent unreasonably withheld or delayed payment due to non-compliance with s. 38(8) of the Schedule. As such, I decline to exercise my discretion pursuant to s. 3(8) of the Schedule and the proposed OCF-18s are not deemed incurred.

The non-catastrophic, medical and rehabilitation treatment limit of $65,000.00, less amounts paid to date, is not deemed incurred

25I find that the applicant has established no legal basis for the Tribunal to deem incurred the entire non-catastrophic (“CAT”), medical and rehabilitation treatment limit of $65,000.00, less amounts paid to date, pursuant to s. 3(8) of the Schedule.

26While I am alive to the applicant’s submission that the Tribunal should deem incurred the non-CAT, medical and rehabilitation treatment limit of $65,000.00, less amounts paid to date pursuant to s. 3(8) of the Schedule, a reading of s. 3(8) of the Schedule will confirm that a Tribunal may deem expenses incurred if the respondent unreasonably withheld or delayed payment of the benefit, however, nowhere does it state that the entire medical and rehabilitation treatment limits can be deemed incurred. To deem the entire medical/rehabilitation treatment limits incurred pursuant to s.3(8) would be to read into the Schedule a remedy that is not provided.

The applicant is not entitled to the OCF-18, in the amount of $4,157.85, dated March 25, 2021, for chiropractic, massage, and acupuncture services

27I find that the respondent’s denial letter, dated April 5, 2021, was compliant with s. 38(8) of the Schedule. Moreover, the applicant has not established on a balance of probabilities that the proposed OCF-18 is reasonable and necessary.

28The applicant submits that the denial letter, dated April 5, 2021, did not provide her with the medical reasons for the denial of the proposed OCF-18 and that the denial letter did not clarify which medical documentation was reviewed in making its determination. The applicant also seeks that the OCF-18 be deemed approved and incurred by the Tribunal.

29The respondent submits that the applicant has not established the proposed OCF-18 for chiropractic, massage, and acupuncture services are reasonable and necessary, as she has not submitted evidence beyond the OCF-18 to support entitlement. The respondent further submits that the records of Dr. Majid Sajjadi, the applicant’s family physician, show that she did not recommend the proposed services.

30I find that the denial letter dated April 5, 2021, was compliant with s. 38(8) of the Schedule. The denial letter advised that the disputed OCF-18 proposed treatment outside of the MIG limits, and that the applicant was in the MIG as there was insufficient documentation provided to support her removal. Moreover, the respondent, provided a list of medical documentation that was required by the applicant. In my view, this denial letter was sufficiently clear to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. As such, I find that the denial letter was compliant with the Schedule.

31The respondent also raised the issue that the applicant was non-compliant with s. 33 of the Schedule. However, the respondent did not provide submissions of whether it was seeking relief pursuant to s. 33(6) of the Schedule, as such, I have not considered this for the purposes of this decision.

32Now turning to the reasonableness and necessity test, I find that applicant has not met this test.

33The applicant’s submissions were silent on whether the treatment goals are reasonable, whether the goals are being met to a reasonable degree and whether the overall cost of achieving the goals are reasonable.

34The applicant has also not directed me to medical evidence, outside of the OCF-18, that the treatment was recommended by any of her treatment providers. While I acknowledge that the applicant argued that there are no sections in the Schedule that require her to provide evidence other than the OCF-18 to support that the services are reasonable and necessary, I respectfully disagree. It is well-settled that more than an OCF-18 is required to show that the proposed services are reasonable and necessary. In fact, there must be compelling contemporaneous medical evidence in support of the OCF-18.

30In this matter, I find that the applicant has not provided contemporaneous medical evidence in support of the OCF-18. The clinical notes and records from the applicant’s family physician, Dr. Sajjadi, for the time period of September 22, 2022, to May 15, 2023, do not support that the proposed chiropractic, massage and acupuncture services are reasonable and necessary. During this period, the applicant did not seek medical attention from Dr. Sajjadi for accident-related complaints and Dr. Sajjadi did not recommend the proposed services from the disputed OCF-18.

31The respondent requests that I draw an adverse inference from the applicant’s failure to provide an OHIP Summary, hospital records and the clinical notes and records from her family physician for the time period requested. However, the respondent did not clarify what kind of adverse inference they were seeking. The applicant also did not address why these records were not provided in reply, other than to state that s. 33 requests do not apply to medical benefits, which as noted above, is incorrect. Although, I am not prepared to make an adverse inference, the lack of medical records goes to the weight of the evidence presented. As noted above, the applicant has not provided contemporaneous medical evidence in support of the OCF-18.

35There is no basis for the applicant’s submission that the OCF-18 should be deemed incurred pursuant to s. 3(8) of the Schedule. The respondent’s denial letter was compliant with s. 38(8) of the Schedule and, as noted above, the applicant played a significant role in the delay in the within matter. Moreover, I have found that the OCF-18 is not reasonable and necessary. Accordingly, s. 3(8) does not apply here. The applicant has also not referred me to a section of the Schedule or authorities that supports her position that the OCF-18 should be deemed approved. Respectfully, the applicant is required to demonstrate that the OCF-18 is reasonable and necessary, and she has not done so.

36For these reasons, I find that the applicant has not demonstrated that the OCF-18 for chiropractic, massage, and acupuncture services are reasonable and necessary.

ORDER

37For the reasons outlined above, I find that:

a. The applicant is entitled to any amounts incurred for the OCF-18s dated April 8, 2019, for psychological services and a pre-screen assessment, starting on the 11th business day after the respondent received the plans, with interest in accordance with s.51 of the Schedule.

b. The OCF-18s dated April 8, 2019, for psychological services and a pre-screen assessment are not deemed incurred.

c. The applicant is not entitled to the OCF-18 in the amount of $4,157.85 or interest.