Licence Appeal Tribunal File Number: 22-001321/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:
Thuy Phung
Applicant
and
Aviva Insurance Company Of Canada
Respondent
DECISION
ADJUDICATOR:
Hande Bilhan
APPEARANCES:
For the Applicant:
Ryan Olsen, Paralegal
For the Respondent:
Alicia Edwards, Paralegal
HEARD: In Writing
OVERVIEW
1Thuy Phung, the applicant, was involved in an automobile accident on April 5, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company Of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The respondent submitted that the applicant is statute barred from bringing this application, for failure to attend the scheduled s. 44 psychological assessment, pursuant to section 55 of the Schedule and section 280 of the Insurance Act R.S.O. 1990, c I.8 (the “Insurance Act”).
3I find the applicant is statute barred from proceeding to a hearing for entitlement to the amount of $3,981.88 for psychological services set out in the OCF-18 dated November 25, 2020, by Somatic Assessments & Treatment Clinic, because she failed to attend an examination under s. 44 of the Schedule (“IE”).
4Section 55 of the Schedule mandates that an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act if the insurer has provided the insured person with notice that it requires an IE.
5The respondent submitted that the applicant is statute barred from bringing this application, for failure to attend the IE.
6The respondent further submitted that they require an IE to determine the reasonableness and necessity of the OCF-18 in dispute, which proposes a fourth round of mental health therapy, after three previous rounds of treatment had been approved without much progress made by the applicant.
7The applicant submitted that s. 44(5)(a) of the Schedule requires that the IE notice letter should be clear enough to allow an unsophisticated person to make an informed decision on whether to attend the IE. The applicant then reasoned that because the IE notice dated December 22, 2020 was not provided to the applicant’s counsel and the applicant’s English is limited, the applicant was not given the opportunity to make an informed decision on whether to attend the IE on January 12, 2021, and was therefore prejudiced.
8Additionally, the applicant submitted that the respondent did not meet their requirements under s. 44(9) 2.i. of the Schedule, that the insurer shall make reasonable efforts to schedule the examination for a day, time and location that is convenient for the insured person.
9The respondent concedes that the notice of examination was erroneously sent to the applicant’s former legal representative but submits that they made the applicant’s current legal representative aware of an impending IE request by fax on December 9, 2020, well ahead of the December 22, 2020, correspondence sent to the applicant. The applicant’s legal representative also became aware of the missed examination when they received correspondence by fax dated February 8, 2021, and have since not responded or tried to reschedule the IE.
10I am not convinced that the applicant was not offered sufficient opportunity to understand the need for and obligation to attend an IE as requested by the respondent and required by the Schedule. I put weight to the following evidence as to why there is no valid excuse for the applicant’s non-attendance:
i. The applicant’s legal representative was first made aware of an impending insurer’s examination when correspondence dated December 9, 2020, was faxed to their office. It is reasonable to assume that the representative would have communicated the requirement to attend the IE to the applicant.
ii. Section 44(5)(a) of the Schedule states that the insurer shall give the insured person notice but does not require that the insured person’s legal representative also be provided notice. Section 64(2) of the Schedule states that notice may be given to the person or to the solicitor or authorized representative.
iii. Section 64(2)(d)(ii) of the Schedule states that a notice may be delivered by mail to the person at his or her last known address. The applicant did not make any submissions or provide any evidence that she did not receive a copy of the notice that was mailed to her home address.
iv. The applicant advised the driver who was sent to take her to the IE that she was not going to the examination. An interpreter arranged by the respondent called the applicant and the applicant informed them they let their representative know that they would not be attending any assessments.
v. The applicant’s legal representative also became aware of the missed examination when they received correspondence by fax on February 8, 2021, enclosing the “No Show Memorandum” dated January 18, 2021. The applicant has not responded to the correspondence to provide a reasonable excuse for her failure to attend the scheduled examination.
vi. Pursuant to subsection 44(9) 2.i. of the Schedule, the insurer is required to make reasonable efforts to schedule an examination for a day, time and location that are convenient for the insured person. The applicant has not submitted that they requested that the examination be rescheduled to a date and time more suitable to the applicant.
11I find that the applicant is statute barred from proceeding to a hearing for entitlement to the amount of $3,981.88 for psychological services set out in the OCF-18 dated November 25, 2020, by Somatic Assessments & Treatment Clinic, as she failed to attend the IE.
SUBSTANTIVE ISSUES
12The issues in dispute are:
i. Is the applicant entitled to the amount of $640.00 ($3,981.88 less $3,341.88 approved) for psychological services set out in the OCF-18 dated January 30, 2020, at Somatic Assessments & Treatment Clinic?
ii. Is the applicant entitled to the amount of $640.00 ($3,981.88 less $3,341.88 approved) for psychological services set out in the OCF-18 dated June 16, 2020, at Somatic Assessments & Treatment Clinic?
iii. Is the applicant entitled to an award?
iv. Is the applicant entitled to interest on outstanding benefits?
RESULT
13The applicant is not entitled to the treatment plans in dispute as they are not reasonable and necessary.
14The applicant is not entitled to an award for unreasonably withheld or delayed payment of benefits.
15As none of the benefits in dispute are owing, the applicant is not entitled to interest.
ANALYSIS
16I find that the applicant is not entitled to benefits in dispute as she has not provided sufficient evidence that they are reasonable and necessary. What remains in dispute from the original treatment plans are $640.00 in each plan for transportation to treatment and for progress reports.
17In order for the applicant to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary.
18Under s. 15(2)(c) of the Schedule, an insurer is only liable to pay for authorized transportation expenses. Under s. 3(1), an authorized transportation expense relates to incurred expenses only after the first 50 kilometres of a trip unless the applicant is catastrophically impaired.
19The applicant argued that a progress report is required in order to gauge how effective treatment is for an applicant or if further treatment would be beneficial. They further submitted that the progress reports were reasonable and necessary, and the fact that the respondent denied subsequent treatments based on the progress reports proves that they were necessary. The applicant did not address the transportation matter in their submissions.
20The respondent submitted that the applicant has failed to meet her onus and provide any evidence showing the denied benefits are reasonable and necessary. Specifically, the respondent noted the following:
i. That the applicant did not provide any evidence that transportation over the 50-kilometre deductible were incurred;
ii. That the OCF-18 Part 9(b)(ii) provides for an opportunity to detail the progress of the patient without incurring the cost of an additional report; and,
iii. That the two progress reports submitted are nearly identical which further questions their utility.
21There is no evidence that the applicant travelled further than 50 kilometres for her treatments and they are therefore not entitled to the transportation expenses in dispute.
22With respect to the progress reports, although a progress report is often a helpful way to chart an applicant’s progress during treatment with that provider, I am not convinced in this case that the brief information regarding patient progress in the reports, buried in the boiler plate language, could not have simply been added to the dedicated sections to report progress in the OCF-18s.
23It is also not clear if the progress reports were prepared by the treating professional as the applicant failed to comply with Adjudicator Warr’s production order issued in his Case Conference Order of November 14, 2022. Specifically, Adjudicator Warr ordered the applicant to produce the following: “Confirmation of which practitioner completed the psychotherapy and how the psychotherapy was provided was required before payment.”, and the applicant failed to produce the information.
24While a progress report is a common format of conveying patient progress, I do not find on balance that the applicant has demonstrated why the progress reports in this instance are reasonable and necessary at the cost outlined in the treatment plan.
25I find that the applicant is not entitled to payment in respect of the transportation costs or progress reports requested in the disputed treatment plans.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, I do not order interest.
Award
27As there is no outstanding payment, the respondent cannot be found liable to pay an award under s. 10 of O. Reg. 664.
ORDER
28For the reasons set out above, I find that:
i. The applicant is not entitled to the benefits in dispute;
ii. The applicant is not entitled to an award; and,
iii. The applicant is not entitled to interest.
Released: August 23, 2024
Hande Bilhan
Adjudicator