Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-000957/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:
Amal Khalaf
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Sam Elbassiouni, Paralegal
For the Respondent:
Maggie Morgan, Counsel
HEARD:
By written submissions
OVERVIEW
1Amal Abu Khalaf, the applicant, was involved in an automobile accident on January 14, 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 the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The case conference order sets out a preliminary issue on whether the applicant is barred from proceeding with her claim for income replacement benefits (IRB). In her submissions, the applicant advises her claim for an IRB has been resolved. Thus, this preliminary issue is also resolved.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $2952.80 for psychological services, including psychotherapy, planning and session notes, proposed by Injury Management and Medical Assessment, in a treatment plan dated December 1, 2020?
ii. Is the applicant entitled to $325.75 for physiotherapy services and reporting, proposed by Iscope Pain and Concussion Pain Centre in a treatment plan dated May 20, 2020?
iii. Is the applicant entitled to $2693.75 for physiotherapy services proposed by Good Health and Rehab Centre in a treatment plan dated July 20, 2020?
iv. Is the applicant entitled to $2200.00 for an attendant care benefit assessment proposed by Novo Medical Services in a treatment plan dated February 27, 2020?
v. s the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
4In submissions, the applicant withdraws issues 1- 4 from the case conference order and advises that issues 8-9 and 11 from the case conference order are resolved.
PROCEDURAL ISSUES
5Prior to the written hearing the respondent filed a motion to exclude 19 of the applicant’s documents from this proceeding. According to the respondent, these documents were not received until June 28, 2023, nearly five months after the production deadline in the case conference order. The respondent submits that it is prejudiced by this late disclosure because it has been denied the opportunity to obtain addendum reports and make full and fair submissions.
6According to the applicant, she provided most of these documents to the respondent on November 28, 2022. The applicant concedes that some documents were late and not submitted on time. She submits that she is a vulnerable person and excluding these documents is highly prejudicial to her.
7In reply, the respondent maintains that they did not receive any of the documents in question.
8The burden of proof is on the respondent to justify the relief it is seeking. The applicant has provided a letter sent by regular mail dated November 28, 2022 indicating that her case conference summary and supporting documents are attached. According to the applicant, most of the 19 documents in the respondent’s motion were attached to this letter. The respondent has not confirmed that it did not receive this letter. Instead, the respondent confirms that the documents in question were not attached to an e-mail sent by the applicant on November 28, 2022.
9The applicant has provided a letter sent by regular mail as proof that the documents were sent to the respondent. The respondent has been silent regarding this evidence. Consequently, I find that the respondent has not established that they did not receive the documents attached to this letter.
10The remaining document, which the applicant agrees was not served on time to the respondent, consist of a questionnaire and test sheets of Dr. Ricardo Harris, psychologist. The applicant provided no reason for why these documents were not disclosed on time.
11Even so, the respondent’s only reason for being prejudiced by the late disclosure is that the late disclosure prevented them from obtaining addendum reports. The respondent has not explained why they would need addendum reports for a psychological questionnaire and test sheets.
12The respondent has not persuaded me that they are prejudiced or that admitting these late documents is procedurally unfair. For these reasons, the respondent’s motion is dismissed.
RESULTS
13The applicant is not entitled to the treatment and assessment plans, nor interest.
14The respondent is not liable to pay an award.
ANALYSIS
15To 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.
Issue 1: Psychological services
16The applicant is not entitled to this treatment plan.
17According to the applicant, the letter dated December 15, 2020 did not comply with section 38(8) of the Schedule because the letter does not give notice of the services in the treatment plan that the insurer does not agree to pay. The letter also fails to provide medical reasons for the denial or the documents reviewed. Moreover, the respondent failed to attach the treatment plan to the letter. Instead, the respondent mentions other treatment plans and this creates confusion in terms of identifying what plan is the subject of the letter. The applicant submits that this treatment plan is payable because the respondent did not comply with section 38(8) of the Schedule based on these deficiencies.
18The respondent makes no submissions on s. 38(8) of the Schedule. The respondent does note that it did not agree to fund this treatment plan until an insurer’s examination (IE) was completed. This plan was subsequently partially approved after an IE in the amount of $1,640.00. This is stated in an explanation of benefits letter dated March 15, 2021.
19I note that section 38(8) of the Schedule states:
Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
20The three issues raised by the applicant are that the initial denial letter does not comply with s. 38(8) for not giving notice of the services being denied, the absence of medical reasons for the denial, and not attaching the treatment plan to the denial letter.
21I agree with the applicant that the denial letter of December 15, 2020 does not list the five services from the treatment plan. Instead, the denial letter states “…we do not agree to fund the goods and services proposed on this Treatment and Assessment Plan at this time…” This indicates the entire treatment plan is denied. This is clear and easily understood, even by a lay person. Under these circumstances, listing each individual line item from the plan would not have added greater clarity.
22The same denial letter provides medical reasons for the initial denial:
i. The (OCF-18) dated June 16, 2020 recommends treatment in the same frequency and type as the previous (OCF-18) dated July 24, 2018 with little or no reported progress towards the goals outlined in Part 9 of the (OCF-18).
ii. The previous (OCF-18) dated July 24, 2018 from Injury Management & Medical Assessments proposing psychotherapy with an estimated duration of 20 weeks was approved by Aviva on October 3, 2018. There appears to be gaps in treatment without documented clinical explanation.
iii. Therefore, an Insurer's Examination is required at this time in order to determine whether the goods and services proposed on this Treatment and Assessment Plan are reasonable and necessary for the injuries you sustained in the accident.
23In brief, the medical reasons for the initial denial are that the same treatment was previously approved. Little or no progress reports were provided to the respondent. There was also a gap in treatment since that approval. The respondent determined that there was insufficient information to approve the plan and was scheduling an IE. In my view, these are detailed medical reasons for not initially funding the treatment plan.
24The respondent did not attach a copy of the treatment plan to the initial denial letter. However, the treatment plan referenced in the letter is clearly identifiable. The letter begins with a box containing four rows and four columns. Under the heading of “Details” is written “(OCF-18) dated June 16, 2020 from Injury Management & Medical Assessments proposing psychotherapy.” Under amount, “$2952.80” is written. The first sentence of the letter states:
We have received a Treatment and Assessment Plan (OCF-18) dated June 16, 2020, received in HCAI on December 1, 2020, from Injury Management & Medical Assessments where Part 4 was completed by Leanne Wagner - Psychologist, and Part 5 was completed by Umair Malik – Psychotherapist. The total cost of this OCF-18 is $2952.80.
25The boxed heading and the opening sentence contain enough information to permit anyone reading this letter, including a layperson, to easily identify the treatment plan that is the subject of the letter.
26I have reviewed the three reasons given by the applicant for why the denial letter dated December 15, 2020 does not comply with s. 38(8) of the Schedule. I am not persuaded by those reasons and find that the letter complies with the Schedule. Consequently, this plan is not payable because the initial denial letter complies with s. 38(8) of the Schedule.
27The respondent approved this treatment plan in the amount of $1,640.00. The respondent’s explanation of benefits letter dated March 15, 2021 states that the psychotherapy treatment would be paid at a rate of $100.00 per hour as this service was to be provided by a social worker.
28The applicant submits that the treatment plan indicates that Ms. Neha Saxena, social worker, would be supervised by Dr. Leanne Wagner, psychologist. The plan seeks $149.61 per hour for 12 hours of counseling by Ms. Saxena. As such, the applicant is arguing that the disputed amount of $595.32 ($49.61 per hour times 12 hours) is meant to pay for the supervision of Ms. Wagner.
29Part 12 of the treatment plan states that Dr. Wagner is providing the service of “Documentation, support activity for claim form” for one hour at a rate of $200.00 per hour. There is no indication that Dr. Wagner is seeking $49.61 per hour for 12 hours to supervise Ms. Saxena.
30The burden of proof is on the applicant to establish that the disputed amount is reasonable and necessary. The applicant argues that the unfunded portion of the plan is meant to pay Dr. Wagner, but this is not indicated in the treatment plan. As such, there is no basis to find that the applicant is entitled to the disputed amount of $595.32.
Issue 2: Physiotherapy
31The applicant is not entitled to this treatment plan.
32This plan sought $1,748.75 and was approved in the amount of $1,423.00. The applicant makes no submissions on whether the disputed amount of the treatment plan is reasonable and necessary. Instead, she submits that the respondent failed to attach the treatment plan to the denial letter dated June 2, 2020. She further submits that the respondent did not outline the amount of $99.75 for the progress report, $200.00 for the re-assessment fee, nor the associated HST. The applicant submits that these amounts are payable under section 38(11) of the Schedule.
33The respondent makes no submissions on s. 38(11).
34The denial letter begins with a box containing four rows and four columns. Under the heading of “Details” is written (OCF-18) dated May 1, 2020 from Iscope Concussion and Pain Centers.” Under amount, “$1748.75” is written. The first sentence of the letter states:
We have received a Treatment and Assessment Plan (OCF-18) dated May 1, 2020 from Iscope Concussion and Pain Centers which was completed by Himani Tuteja – Physiotherapist. The total cost of this OCF-18 is $1748.75.
35Similar to the previous issue above, the boxed heading and the opening sentence permits anyone reading this letter to easily identify the treatment plan that is the subject of the letter.
36I agree that the amounts of the denied services: the progress report, the res-assessment fee, and the associated HST, are not listed. However, s. 38(8) does not require the notice to state the amounts of the denied services. The statute does require the notice to list the denied services and the reasons for the denial. The applicant does not dispute that the respondent met these two requirements.
37Consequently, I find that the notice provided by the respondent complies with s. 38(8) and that the applicant is not entitled to the disputed amount of this treatment plan.
Issue Three: Physiotherapy
38The applicant is not entitled to this treatment plan.
39Again, the applicant makes no submissions on whether this treatment plan is reasonable and necessary. Instead, she submits the denial letter does not identify the goods, services, assessments, and examinations that the respondent does not agree to pay.
40The applicant further submits that the OCF-18 was submitted to the insurer on July 20, 2020, and therefore, the deadline for a response pursuant to the Schedule was August 2, 2020. The denial letter was sent two days after the deadline via regular mail which is deemed to be delivered five days after the date it was sent. The applicant submits that this plan is payable in full because the notice is deficient and because it was sent late.
41The respondent makes no submissions that address s. 38(8) of the Schedule.
42The denial letter of August 4, 2020 does not list the two services from the treatment plan. The letter states “…we do not agree to fund the goods and services proposed on this Treatment and Assessment Plan at this time…” and goes on to say that an IE will be arranged to further consider the treatment plan. This indicates that the entire treatment plan is denied pending an IE. Under these circumstances, listing each individual service from the treatment plan is unnecessary as the entire treatment plan was being denied and this is clear and easily understood. Consequently, I find that the respondent did not fail to comply with section 38(8) of the Schedule on the basis of giving a deficient notice.
43In submissions, the respondent agrees that it received this treatment plan on July 20, 2020. Section 38(8) of the Schedule requires the respondent give notice within 10 business days after the day it receives the treatment plan.
44The Schedule defines “business day” as a day that is not a Saturday, or a holiday within the meaning of section 88 of the Legislation Act, 2006, other than Easter Monday and Remembrance Day.
45Section 88(2)(1) of the Legislation Act, 2006 designates Sunday as a holiday.
46July 20, 2020 was a Monday. Using the method of calculating 10 business days in the Schedule, the 10th business day after July 20, 2020 would be August 3, 2020.
47The Schedule requires the respondent to give the insured person a notice within 10 business days of the goods and services it agrees or does not agree to pay. The applicant agrees that the respondent sent the notice on August 4, 2020 by regular mail. Section 64(18) of the Schedule deems the notice to have been delivered five business days after being sent. As such, I find that the respondent provided notice on August 11, 2020.
48Section 38(11) of the Schedule states:
The insurer shall 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 a notice described in subsection (8).
49The applicant’s entitlement to the payment of incurred goods and services described in this treatment plan begins on the 11th business day after the respondent receives the plan and continues until the respondent gives notice. The 11th business day after the respondent received the plan is August 4, 2020.
50The applicant submits that the entire plan is payable. However, in Aviva General Insurance Company v. Catic, 2022 ONSC 6000, the Divisional Court determined that only incurred expenses are payable. Consequently, I find that the respondent is required to pay all goods and services incurred from this treatment plan between August 4 and August 11, 2020.
51The applicant has not provided evidence of incurred expenses from this treatment plan. For this reason, I further find, on a balance of probabilities, that she is not entitled to any payment from this treatment plan.
Issue 4: Attendant Care Assessment
52The applicant is not entitled to this assessment.
53For an assessment, the applicant must show that it is reasonable and necessary to investigate a condition.
54The applicant submits that she is entitled to this assessment on two grounds. Firstly, because the respondent’s denial letter dated March 10, 2020 does not provide any medical reasons for the denial and is therefore deficient under s. 38(8) of the Schedule. The applicant also submits that she has established that the assessment plan in dispute is reasonable and necessary by providing compelling evidence of chronic pain, psychological distress, and the need for physical rehabilitation.
55The respondent’s letter of March 10, 2020 asked for further information to verify that the treatment plan is in accordance with Ontario Regulation 90/14: Service Providers – Standards for Business Systems and Practices and Other Prescribed Condition (O. Reg 90/14). Specifically, the respondent asked for:
(i) Confirmation on which date(s) the provider(s) listed under Part 5 Reema Malek —Social Worker, met with or spoke with the client including the location of meeting/discussion.
(ii) For the provider listed in Part 4 Remik Zakrzewski — Occupational Therapist, please advise the basis on which they are certifying the reasonableness and necessity of this Treatment and Assessment Plan for the injuries listed in Part 6.
(iii) If the providers listed under Part 4 and Part 5 are different, confirmation of which steps Remik Zakrzewski—Occupational Therapist, completed in order to ensure that the provider listed in Part 5 of the OCF-18 reviewed with the applicant the treatment and assessment plan.
(iv) All reviewed medical documentation that supports the need for the proposed goods and services; this should include a signed copy of the proposed OCF-18 listed above from Novo Medical Services Inc.
56I note that the respondent’s letter references sections 9 and 10 of the O. Reg. 90/14. Section 9 applies to plans and s. 10 applies to invoices. As such, only s. 9 of the O. Reg. 90/14 is applicable. This section states:
(1) A licensed service provider shall not submit to an insurer any form, plan, invoice or other type of document or information authorized or required under the Statutory Accident Benefits Schedule that relates to a claim for statutory accident benefits or to a listed expense if either of the following circumstances exists:
The service provider has reasonable grounds to believe that the form, invoice, document or information contains inaccurate, false, misleading or deceptive information.
The service provider has reasonable grounds to believe that the individual to whom the claim relates,
i. was not involved in an accident in respect of which the claim for statutory accident benefits is made or the assessment, examination, report, form, plan, good or service is requested or provided; or
ii. did not sustain an impairment in respect of which the claim for statutory accident benefits is made or the assessment, examination, report, form, plan, good or service is requested or provided.
(2) If a service provider believes on reasonable grounds that a form, plan, invoice or other document or information that the service provider, or any person authorized by the service provider, has submitted to an insurer contains inaccurate, false, misleading or deceptive information, the service provider shall, at the earliest opportunity and in any event within two business days after forming the belief,
(a) advise the insurer of the belief; and
(b) provide the insurer with the correct information.
57The wording in s. 9 of the O. Reg 90.14 establishes the duty of licenced service providers to submit plans with correct and accurate information to insurers.
58The respondent submits that the applicant did not respond to their request for information. Consequently, the respondent submits that the treatment plan does not comply with s. 38(3) of the Schedule.
59In reply, the applicant submits that her treatment plan complies with s. 38(3).
60Section 38(3) of the Schedule states:
(3) A treatment and assessment plan must,
(a) be signed by the insured person unless the insurer waives that requirement;
(b) be completed and signed by a regulated health professional; and
(c) include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation and,
(i) stating, if the treatment and assessment plan is in respect of an accident that occurred on or after September 1, 2010,
A. that the insured person’s impairment is not predominantly a minor injury, or
B. that the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline, or
(ii) stating, if the treatment and assessment plan is in respect of an accident that occurred before September 1, 2010, that the expenses contemplated by the treatment and assessment plan are reasonable and necessary for the insured person’s treatment or rehabilitation.
61This section deals with signatures and other requirements for treatment plans. The respondent made no submissions on which paragraph of s. 38(3) applies. The respondent has also not made any submissions that connect the letter of March 10, 2020 and s. 9 of the O. Reg 90/14 to s. 38(3) of the Schedule. I find that the respondent’s position lacks clarity, and therefore, does not constitute a basis for the treatment plan to not be payable.
62According to the applicant, she established that this assessment plan is reasonable and necessary by having provided compelling evidence of recurrent, ongoing chronic pain, psychological distress, and the need for physical rehabilitation and that an attendant care assessment is needed to assist her recovery.
63The applicant made no submissions identifying the goals of treatment. She has also not explained how the goals would be met to a reasonable degree or whether the overall costs of achieving those goals are reasonable. As such, I find that the applicant has not addressed the essential elements needed to establish her entitlement to this treatment plan.
64I note that the stated purpose of this plan is to determine the applicant’s “needs for attendant care and housekeeping/caregiver assistance by the application as the result of the accident.”
65The applicant asserts that her chronic pain, psychological distress, and need for physical rehabilitation entitle her to this assessment. In my view, chronic pain, psychological distress, and the need for physical rehabilitation do not, on their own, establish that it is reasonable and necessary to investigate the need for attendant care. This is because listing one’s injuries provides no insight into any impairments caused by those injuries.
66The applicant cited in her submissions the Independent Chronic Pain Assessment of Dr. Tajedin Y. Getahun, orthopedic surgeon, dated July 15, 2019. The report states that pre-accident the applicant worked in a “catering capacity.” She returned to work two days after the accident in a modified capacity with limited lifting and carrying and frequent breaks. At the time of this report, she was working full-time hours.
67I find that the applicant’s functional ability to work full-time hours catering food for others, albeit in a modified capacity, seriously undermines her assertion that an attendant care assessment is reasonable and necessary. For this reason as well, I find that this treatment plan is not reasonable and necessary.
Interest
68As there are no overdue benefits, I find that the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
69The 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.
70As no payments are outstanding, the respondent cannot be liable to pay an award under s. 10 of O. Reg. 664.
ORDER
71The applicant is not entitled to the treatment and assessment plans, interest, nor an award.
Released: January 15, 2024
Harry Adamidis
Adjudicator