Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-001905/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:
Tyra Ford
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Haider Bahadur, Counsel
For the Respondent: Karanveer Padda, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Tyra Ford, the applicant, was involved in an automobile accident on May 29, 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 Aviva Insurance Canada ("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 $603.28 ($4,103.28 less $3,500.00 approved) for chiropractic services, proposed by Natural Touch Rehab in a treatment plan/OCF-18 dated June 5, 2018?
ii. Is the applicant entitled to $598.44 ($3,491.47 less $2,893.03 approved) for psychological services, proposed by Dr. Ilya Gladshteyn, Psychologist at Med-Assess in a treatment plan/OCF-18 dated February 18, 2020?
iii. Is the applicant entitled to $4,613.45 for psychological services, proposed by Sarvin Sabet, Psychologist at Med-Assess in a treatment plan/OCF-18 dated June 2, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has failed to demonstrate that the denial notices for the treatment plans in dispute contravene s.38(8) of the Schedule. She is not entitled to these treatment plans on this basis. The application is dismissed.
ANALYSIS
4The applicant makes no submissions as to the reasonableness or necessity of the treatment plans in dispute. The applicant's focus is her 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.
5The applicant further argues that the treatment plans are certified by duly qualified medical professionals to contain accurate information in proposing reasonable and necessary treatment. The applicant argues that the certification creates a rebuttable presumption that the respondent must rebut in the denial notice on the basis of fair and principled reasons.
6Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
7If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that is an insurer fails to provide proper notice of the reasons for its denial it must 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 notice as described in s. 38(8).
8Section 44(5) of the Schedule provides that an insurer shall give notice of an examination with the medical and other reasons for the examination.
9The Tribunal has recognized medical reasons for denial as specific details about the insured's condition forming the basis for the insurer's decision or identifying information about the insured's condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.
Is the chiropractic treatment payable?
10This treatment plan ("plan") is dated June 5, 2018 by chiropractor, Dr. Samra Arabnezhad of Natural Touch Rehab. The respondent wrote to the applicant on June 26, 2018 denying the benefits, within 10 business days of receiving the plan on June 18, 2018. The respondent stated that it reviewed the treating practitioner's medical opinion, compared them to the criteria in the Minor Injury Guideline and concluded that the injuries fall within the Guidelines. The respondent further stated that it has not received any "compelling medical evidence" to support the applicant's claims that her injuries are not minor. In addition, the respondent stated that it required an Insurer's Examination to determine whether the recommended treatment is reasonable and necessary for the injuries the applicant sustained as a result of the accident.
11In letter dated June 26, 2018, an insurer's examination ("IE") was requested to determine if the recommended treatment was reasonable and necessary. A notice of examination dated June 26, 2018 indicates that an insurer's examination was scheduled with Dr. Louise Weisleder, orthopaedic surgeon, to take place on July 9, 2018.
12The applicant attended the assessment. Following the insurer's examination, by letter dated July 31, 2018, the respondent provided a copy of the report of Dr. Weisleder, with a summary of the doctor's findings, and advised that the treatment plan is partially approved up to the MIG limits. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. It referred to the specific treatment plan at issue and identified information it required.
13The respondent requested specific medical information from the applicant regarding a fracture to be forwarded to Dr. Weisleder for an addendum report. The respondent again wrote to the applicant on April 16, 2019 with a copy of the addendum report dated April 12, 2019 by Dr. Weisleder. The applicant does not provide any details regarding the additional medical information provided to the respondent. The respondent based its denial on the conclusions of Dr. Weisleder of uncomplicated injuries which do not require further treatment.
14The denial and IE notice dated June 26, 2018 stated that the applicant's injuries are "minor" in accordance with the medical documentation on the file. The respondent requested further medical documentation in support of her claim that her injuries are not minor. Accordingly, the denial complies with s.38(8) of the Schedule. The July 31, 2018 denial provides further medical reasons specific to the applicant and meets the requirements for a denial of a treatment plan in the Schedule.
15Given that the respondent provided proper notice on June 26, 2018 and no submissions as to why this plan is reasonable and necessary, I find that the applicant has not met her burden to establish entitlement to any remainder of this plan.
Are the plans for psychological services payable?
16The plan dated February 18, 2020 for psychological services by Dr. Ilya Gladshetyn at Med-Assess was submitted on May 15, 2020. The respondent wrote to the applicant on May 26, 2020 with a partial approval for 1-hour sessions and requested further information from the provider to clarify details in the plan. The respondent specifically requested information regarding the qualifications of the health practitioner providing the therapy sessions, the method of therapy and the reason for client related supervision services.
17A further treatment plan dated June 2, 2021 was submitted on June 8, 2021 for psychological services by Sarvin Sabet at Med-Assess. The respondent wrote to the applicant on June 15, 2021 denying the benefit within 10 business days of receiving the plan. The respondent requested information or progress report regarding the goals of therapy. An insurer's examination was requested to determine if the recommended treatment was reasonable and necessary. A notice of examination dated June 15, 2021, indicates that an insurer's examination was scheduled with Dr. Arnold Rubenstein, psychologist, to take place on July 26, 2021.
18Following the insurer's examination, by letter dated November 30, 2021, the respondent provided a copy of the report of Shulamit Mor, denying the benefits on the basis that it is unreasonable and necessary.
19Given that the respondent provided proper notice and no submissions as to why these plans are reasonable and necessary, I find that the applicant has not met her burden to establish entitlement to these plans.
Interest
20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant was unsuccessful and no benefits are overdue, it follows that no interest is payable under s. 51.
ORDER
21For the reasons set out above, I find that:
i. The claim for $603.28 over and above the $3,500.00 approved listed in the $4,108.28 for chiropractic services from Dr. Samar Arabnezhad of Natural Touch Rehab in a treatment plan dated June 5, 2018 is dismissed;
ii. The claim for $598.44 over and above the $2,893.03 approved listed in the $3,491.47 for psychological services from Dr. Ilya Gladshetyn of Med-Assess in a treatment plan dated February 18, 2020 is dismissed, and;
iii. The claim for $4,613.45 for psychological services from Sarvin Sabet of Med-Assess in a treatment plan dated June 2, 2021 is dismissed.
Released: August 8, 2024
Lisa Holland
Adjudicator