Citation: Foster v. Aviva General Insurance, 2024 ONLAT 21-014788/AABS

Licence Appeal Tribunal File Number: 21-014788/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:

Dave Foster

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Nashmil Mamresuli, Paralegal

For the Respondent: Alicia Edwards, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Dave Foster (“the applicant”) was involved in an automobile accident on June 2, 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 Aviva General Insurance (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The respondent raised the following preliminary issue, which I have addressed below in my analysis:

1. Is the applicant precluded from proceeding with his claim for $2,294.52 for psychological treatment for failure to attend a scheduled section 44 insurer examination pursuant to section 55 of the Schedule?

ISSUES

3The substantive issues in dispute are:

1. Is the applicant entitled to a medical benefit in the amount of $2,195.00 for physiotherapy services proposed by Finchgate Physiotherapy in a treatment plan dated September 18, 2020?

2. Is the applicant entitled to a medical benefit in the amount of $2,893.25 for physiotherapy services proposed by Finchgate Physiotherapy in a treatment plan dated May 21, 2021?

3. Is the applicant entitled to a medical benefit in the amount of $2,893.25 for physiotherapy services proposed by Finchgate Physiotherapy in a treatment plan dated January 21, 2022?

4. Is the applicant entitled to a medical benefit in the amount of $2,294.52 for psychological services proposed by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan dated August 4, 2022?

5. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment proposed by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan dated September 18, 2020?

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

RESULT

4The applicant is not entitled to the treatment and assessment plans in dispute and no interest is payable.

5The application is dismissed.

ANALYSIS

6The applicant makes no submissions as to the reasonableness or necessity of the treatment plans in dispute. The applicant’s focus in his submissions is on alleged procedural errors made by the respondent and it is suggested that these procedural errors should result in finding the disputed benefits payable. The applicant made no submissions that pertain to substantive entitlement to any of the disputed benefits.

Issue 1

7This treatment plan is dated September 18, 2020. The applicant alleges it was submitted to the respondent the same day but directs me to no evidence to confirm that assertion, such as HCAI documentation. The respondent provided the HCAI submission which indicates on the first page of the OCF-18 the submission date was actually September 21, 2020. The respondent wrote to the applicant on October 6, 2020 denying the benefits, on the 11th business day, therefore breaching the 10 business day timeline in s. 38(8) of the Schedule. Pursuant to s. 38(11), the insurer shall pay for all goods and services until described in the plan starting on the 11th business day until it gives proper notice. Therefore, the applicant would be limited to any services incurred on the 11th business day.

8The applicant further submits that it was an improper denial as it was based only on the MIG, yet he is no longer subject to the MIG, and so the denial lacked medical reasons. I find that the October 6, 2020 letter was a valid denial letter, albeit one day late. It indicates that the respondent had not received any compelling medical evidence, including any clinical notes and records to support this request for additional treatment. In review of the documents on file, his injuries appeared to be minor as defined by the Schedule and it was unable to determine if the recommendations on the plan are reasonable and necessary, and an insurer’s examination was scheduled. Following the insurer’s examination, by letter dated March 22, 2021, the respondent provided a copy of the report of Dr. Bansal, with a summary of the doctor’s findings, and advises that the treatment plan is not reasonable or necessary.

9Given that there is no evidence of what, if any, treatment was incurred on the 11th business day when the respondent provided proper notice, and no submissions as to why this plan is reasonable and necessary, I find that the applicant has not met his burden to establish entitlement to this plan.

Issue 2

10The treatment plan dated May 21, 2021 was submitted on the same day. The respondent provided proper notice on June 2, 2021. The applicant acknowledges the June 2, 2021 denial, but submits that this is more than 10 business days after it was received. However, June 2 is actually the eighth business day after the submission, and within the timelines in the Schedule. This was a valid denial, based on the prior report of Dr. Bansal.

Issue 3

11The treatment plan dated January 21, 2022 was submitted on the same date. The respondent provided a proper and timely notice to the applicant on the tenth business day on February 3, 2022. It explained that it was denied based on the prior assessment of Dr. Bansal, summarized the evidence from that report, and indicates and that the plan was not reasonable and necessary. This was a valid denial within the timelines set out in the Schedule.

Issue 4

12The applicant submits that the plan dated August 4, 2022 was denied by letter dated October 17, 2022, and which indicates that an insurer’s examination will be arranged, but one was never scheduled.

13The treatment plan was actually denied by letter dated September 9, 2022, and included the medical reasons: that the diagnosis remained the same with little improvement based on the approved treatment provided to date. An insurer’s examination was requested to determine if the recommended treatment was reasonable and necessary or if alternatives may be more effective. A notice of examination dated September 16, 2022 indicates that an insurer’s examination was scheduled with Dr. Costa El-Hague, psychologist, to take place on October 11, 2022.

14The applicant failed to attend the assessment. The October 17, 2022 letter advises the applicant of his failure to attend. The respondent submits that the applicant has not provided a reasonable excuse for his failure to attend the examination and has not requested that it be rescheduled.

15I find that the applicant is statute barred from proceeding with his application for this treatment plan pursuant to s. 55 of the Schedule for failing to comply with the examination under s. 44. The respondent provided clear medical and other reasons in its notices, sufficient to allow the appellant to make an informed decision as to whether to accept or dispute the decision. It referred to the specific treatment plan at issue, identified the gaps in treatment received and information it required.

16The applicant was given an opportunity to make reply submissions, but did not, so the respondent’s submissions are unrefuted.

17Given that this was a valid notice, the applicant failed to attend the assessment and has not provided any explanation, the applicant is barred from applying to the Tribunal for this plan.

Issue 5

18The plan for the chronic pain assessment dated October 6, 2020 was submitted on October 22, 2020. The applicant doesn’t indicate in his submissions what alleged error the respondent committed or why he is entitled to the plan. He does not explain why the assessment was reasonable and necessary. He seems to suggest that the IE was improper because Dr. Bansal didn’t review any clinical notes and records. This is incorrect. At page 3 and 4 of the report Dr. Bansal provides a summary of some of the file documentation he reviewed, which included clinical notes and records, a disability certificate, and treatment plans. The appendix at page 10 of the report contains a list of the reviewed documents, which included the clinical notes and records of the family physician, Dr. Jaspreet Perera. In any event, even if the doctor had failed to review clinical notes and records, it would not result in the applicant being automatically entitled to the disputed plan.

19The plan was denied by letter dated November 9, 2020, the 12th business day. I find that the November 9, 2020 letter was a valid denial notice.

20The denial letter identified the treatment plan, and indicated that the medical evidence identified predominantly minor sprain and strain injuries, and that an insurer’s examination was required to determine if the plan was reasonable and necessary. The letter also provided the details of the scheduled insurer’s examinations.

21There is no evidence to suggest that the applicant incurred the chronic pain assessment on either the 11th business day or the 12th business day when a valid denial notice was provided. As such, the applicant is not entitled to this plan.

Interest

22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are overdue, therefore no interest is payable.

ORDER

23The applicant is barred from proceeding with his application for $2,294.52 for psychological treatment pursuant to s. 55 of the Schedule for failing to comply with the examination under s. 44.

24The applicant is not entitled to the benefits in dispute, and no interest is payable.

25The application is dismissed.