Licence Appeal Tribunal File Number: 23-000568/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:
Virgilio Cabico
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Manisa Kafai, Counsel
For the Respondent:
Ian D. Kirby, Counsel
Court Reporter:
Alyssa Scott
HEARD by Videoconference:
April 2 to April 12, 2024
OVERVIEW
1Virgilio Cabico, the applicant, was involved in an automobile accident on June 25, 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, Allstate Canada, 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. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to an income replacement benefit in the amount of $185.00 per week from June 25, 2020 to June 25, 2022?
iii. Is the applicant entitled to an attendant care benefit in the amount of $1,472.47 per month from June 25, 2018 to June 8, 2023 and $4,061.24 per month from June 8, 2023 to date and ongoing?
iv. Is the applicant entitled to $2,200.00 for an MRI, proposed by 101 Assessments in a treatment plan submitted on March 13, 2019 and denied on March 21, 2019?
v. Is the applicant entitled to $2,200.00 for an MRI of spine, proposed by 101 Assessments in a treatment plan submitted on March 13, 2019 and denied on March 21, 2019?
vi. Is the applicant entitled to $2,460.00 for an ultrasound, proposed by 101 Assessments in a treatment plan submitted on March 22, 2019 and denied on March 26, 2019?
vii. Is the applicant entitled to $2,460.00 for a cognitive assessment, proposed by 101 Assessments in a treatment plan submitted on March 12, 2019 and denied on March 21, 2019?
viii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by 101 Assessments in a treatment plan submitted on May 7, 2019 and denied on May 21, 2019?
ix. Is the applicant entitled to $2,460.00 for a psychiatric assessment, proposed by 101 Assessments in a treatment plan submitted on June 26, 2019 and denied on July 5, 2019?
x. Is the applicant entitled to $2,460.00 for a speech language assessment, proposed by 101 Assessments in a treatment plan submitted on June 10, 2019 and denied on June 20, 2019?
xi. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments in a treatment plan submitted on December 4, 2019 and denied on December 17, 2019?
xii. Is the applicant entitled to $575.00 for an attendant care assessment, proposed by 101 Assessments in a treatment plan submitted on January 8, 2019 and denied on January 8, 2019?
xiii. Is the applicant entitled to $200.00 for completion of an OCF-3, proposed by 101 Physiotherapy in a treatment plan submitted on September 26, 2019 and denied on September 26, 2019?
xiv. Is the applicant entitled to $418.09 ($3,474.99 less $3,056.90 approved) for physiotherapy, proposed by 101 Physiotherapy in a treatment plan submitted on November 16, 2018 and denied on June 10, 2019?
xv. Is the applicant entitled to $271.20 ($3,102.46 less $2,831.26 approved) for physiotherapy, proposed by 101 Physiotherapy in a treatment plan submitted on February 13, 2019 and denied on June 10, 2019?
xvi. Is the applicant entitled to $678.00 ($2,420.52 less $1,742.52 approved) for physiotherapy, proposed by 101 Physiotherapy in a treatment plan submitted on June 29, 2022 and denied on July 3, 2022?
xvii. Is the applicant entitled to $2,200.00 for a brain SPECT test, proposed by Deena Rogozinsky Therapy in a treatment plan submitted on May 21, 2021 and denied on June 8, 2021?
xviii. Is the applicant entitled to $1,450.00 for fluoroscopic imaging, proposed by Rozen Medical Professional Corporation in a treatment plan submitted on January 26, 2023 and denied on August 8, 2023?
xix. Is the applicant entitled to $8,475.00 ($22,487.00 less $14,012.00 approved) for the completion of an OCF-19, proposed by Deena Rogozinsky Therapy in a treatment plan submitted on September 10, 2021 and ultimately denied on August 18, 2023?
xx. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xxi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not sustained a catastrophic impairment as defined by the Schedule.
4The applicant is not entitled to an income replacement benefit in the amount of $185.00 per week from June 25, 2020 to June 25, 2022.
5The applicant is not entitled to an attendant care benefit in the amount of $1,472.47 per month from June 25, 2018 to June 8, 2023 and $4,061.24 per month from June 8, 2023 to date and ongoing.
6The applicant is entitled to the following medical benefits:
i. $2,460.00 for a cognitive assessment.
ii. $2,460.00 for a neurological assessment.
7The applicant is not entitled to the remaining medical benefits.
8The respondent is not liable to pay an award under s. 10 of Reg. 664.
9The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUES
A. Notice of Motion to exclude evidence and witnesses, dated March 22, 2024
10In a Notice of Motion dated March 22, 2024, the applicant sought exclusion of “all of the respondent’s notices of denial, notices of noncompliance, notices of examination, IE assessments, IE reports, addenda and the respondent’s notices denying and/or discontinuing IRBs, medical rehabilitation benefits and costs of assessments” because the documents were defective or non-compliant with the respondent’s duties under the Schedule. Further, the applicant sought to exclude the authors of these documents as witnesses at the hearing.
11The applicant proposed the motion to be heard on the first day of the scheduled hearing.
12The respondent argued that the applicant has been represented by the same law firm since shortly after the accident on June 25, 2018 and has been receiving these documents throughout the years. The parties attended two case conferences. The last one occurred on August 22, 2023, and no issues were raised during this process or any time prior. The first time the applicant raised these issues was six business days in advance of this hearing. The respondent argues the case conference was an appropriate time to deal with this issue or to consider a motion, as contemplated by Rule 14.2 of the Common Rules which apply to this file.
13I determined that it was preferrable that I deal with the alleged non-compliant notices after a full hearing. Section 15 of the Statutory Powers Procedure Act allows me to admit any evidence so long as it is relevant. I ordered the hearing to continue without excluding this evidence or any witnesses. I directed the parties to argue the issue of any non-compliance with the Schedule and indicated that I would consider these arguments when affording weight to the evidence.
B. Oral motion to exclude late produced evidence
14The applicant made an oral request to exclude evidence produced after the deadlines set in the Case Conference Report and Order, dated September 1, 2023. The applicant sought exclusion of the following:
i. Adjuster’s log notes;
ii. A property damage file, produced February 29, 2024;
iii. Curricula vitae of insurer examination assessors, produced March 5-6, 2024;
iv. Notes and records of insurer examination assessors, produced March 5-6, 2024;
v. Surveillance, produced February 29, 2024.
15The respondent argued that the applicant had already sought and received relief relating to the late production of the adjuster’s log notes. In a Motion Order, dated March 12, 2024, the Tribunal granted an extension of time for the applicant to produce evidence and a final list of witnesses as a remedy for the late production. Since the applicant had already sought and obtained relief regarding the adjuster’s log notes, I did not need to deal with this request as it relates to that item.
16The parties consented to the respondent relying on the curricula vitae of its assessors and the exclusion of all other items listed.
ANALYSIS
17On all of the issues in dispute, the applicant bears the onus to prove on a balance of probabilities that he is entitled to the benefits and determinations sought.
Issue i: The applicant has not sustained a catastrophic impairment
18I find that the applicant is not catastrophically impaired (“CAT”) as defined in the Schedule under section 3.1(1)8 (“Criterion 8”).
19The applicant must prove that, as a result of the accident, under Criterion 8 that he suffers from marked (“Class 4”) impairment in at least three of the four domains, or at least one extreme (“Class 5”) impairment, due to a mental or behavioural disorder.
20The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one, as established in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30. I find that the applicant does not meet the test as set out in the Schedule.
21The applicant’s position is that he has Class 4 impairments in three of the four domains, specifically in the domains of activities of daily living; social functioning; and adaptation. The applicant states he has a Class 3 or moderate impairment in the domain of concentration.
The respondent’s notices did not comply with the Schedule
22The applicant relies on an Application for Determination of Catastrophic Impairment (“OCF-19”) dated March 10, 2022. The OCF-19, submitted by Dr. Irina Kay, stating that the applicant is catastrophically impaired under Criterion 8.
23By way of Explanation of Benefits (“EOB”) dated April 21, 2022, the respondent communicated its determination that the applicant has not sustained a catastrophic impairment as a result of the accident. for the following reasons:
…Given the medical information we have to date, it is unclear that you have sustained a catastrophic impairment. As such in accordance with Section 45(3)(b) we are requesting that you attend an insurer’s examination(s) under section 44 of the Statutory Accident Benefits Schedule to assist in determining if your impairment is catastrophic resulting from this motor vehicle accident as defined by the SABS. …
24The notice requirements the respondent must comply with when determining the applicant does not suffer from a catastrophic impairment are set forth in s. 45(3)(b) of the Schedule. The respondent must give a notice “specifying the medical and any other reasons for the insurer’s decision…”.
25The respondent required the applicant to attend an insurer examination (“IE”) with respect to his catastrophic impairment determination by way of a Notice of Examination by Insurer (“NOE”) dated May 13, 2022. A fresh NOE followed, dated July 14, 2022, as a result of the IE having been rescheduled. The respondent provided the same reasons quoted above from the EOB in both of these NOEs.
26When requiring an applicant’s attendance at an insurer examination (“IE”), s. 44(5)(a) of the Schedule requires the respondent to provide notice including “the medical and other reasons for the examination”. The applicant submits that the NOEs requiring the applicant’s attendance at the catastrophic IEs did not meet the notice requirements. The applicant argues therefore, the findings of the improper IE resulting from a deficient NOE should be excluded or given no weight. The respondent submits its notices comply with the Schedule.
27The Tribunal has previously engaged with the question of when a respondent can be found to have sufficiently specified or set out “the medical and other reasons” as required by the Schedule. In M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT), the Tribunal held that an insurer satisfies its notice obligations by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. The reasons should include specific details about the insured’s condition forming the basis of the decision or, alternatively, identify information about the insured’s condition that the insurer does not have, but requires. Compliant reasons should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
28This view was also adopted by the Tribunal in Taksali v Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) (“Taksali”). I am persuaded by and agree with these authorities. The applicant also cites Taksali as authority for its position that when a notice is deficient, the resulting IE is improper and that the results should not be considered. I am persuaded by this argument.
29The respondent’s “medical and any other reasons” do not set out details about the applicant’s condition which formed the basis for its decision. Nor did the respondent specify or set out what information about the applicant’s condition it did not have but required. Rather, the respondent broadly states that the medical evidence on file is unclear without explanation. This is not a reason which would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
30For the reasons above, I find that the respondent’s EOB dated April 21, 2022 is non-compliant with the notice requirements in s. 45(3)(b) of the Schedule. I also find that the NOEs dated May 13, 2022 and July 14, 2022 are non-compliant with the notice requirements in s. 44(5)(a) of the Schedule.
31By way of EOB dated October 16, 2022, the respondent again communicated its determination that the applicant did not sustain a catastrophic impairment, on the basis of the IE completed on September 28, 2022. I have previously found the respondent did not comply with the requirements of s. 44(5)(a) and s. 45(3)(b) of the Schedule. Therefore, the resulting IE was improper and the results of the IE will be given no weight.
The applicant is not catastrophically impaired under Criteria 8
32For activities of daily living, the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition (“Guides”) specify what needs to be considered.
Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder rather than to such factors as lack of money or lack of transportation. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction.
What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.
33Erin D. Langis, a registered Psychologist, in the Multi-Disciplinary Catastrophic Report dated March 10, 2022, finds the applicant to have a Class 4 impairment under the domain of activities of daily living.
34During the hearing, the applicant testified he engaged in some tasks after the accident but less often and in many cases at a slower pace than prior to the accident. The respondent argues that the applicant’s assessor’s evidence should be given little weight. The respondent alleges that the assessor made conclusions as a result of a lack of information because she only had records from the family doctor from January 2019 to January 2020. The respondent argues that missing records from prior to the accident and from approximately the first six months after the accident would have provided a fuller picture to the assessor. The respondent argues this would have included that there was a lack of complaints after the subject accident and that there was a subsequent accident in which the applicant complained of being injured.
35Based on the collective evidence presented, I disagree that the applicant has a Class 4 impairment in activities of daily living. I find that the applicant’s Impairment levels are compatible with some, but not all, useful functioning in this domain. He is sufficiently capable of initiating in activities of self-care, personal hygiene, communication, ambulation, travel, and social and recreational activities without supervision or direction.
36As a result of the above, I find that the applicant has not met the test under Criterion 8. He has not established he suffers from Class 4 impairments in at least three of the four domains, specifically in activities of daily living and in concentration, persistence and pace. He has not established a Class 4 impairment in the domain of activities of daily living and his own evidence is that he suffers from a Class 3 impairment in the domain of concentration, persistence and pace. I therefore find that the applicant is not catastrophically impaired as defined under the Schedule.
Issue ii: The applicant is not entitled to an income replacement benefit
37I find that the applicant is not entitled to an income replacement benefit (“IRB”) from June 25, 2020 to June 25, 2022.
38To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate, on a balance of probabilities, that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
39However, in this case, the applicant argues he is entitled to a continuation of the IRB as a post-104 IRB under the Schedule. The applicant’s position is s. 36(6) of the Schedule obligates a respondent to pay this benefit if the respondent fails to comply with the notice requirements of s. 36(4) of the Schedule. The applicant refers me to Taksali in support of this position.
The respondent’s notices are compliant with the Schedule
40I find that Taksali does not apply to the applicant’s claim for entitlement to a continuing IRB. In Taksali, the Tribunal was deciding the issue of IRB up to 104 weeks post-accident in light of the provisions under s. 36 of the Schedule. Section 36 applies when an applicant submits an Application for Accident Benefits (“OCF-1”) along with a Disability Certificate (“OCF-3”) at an instance of determining entitlement of an IRB. Once the benefit has been approved and a determination to continue payment or terminate payment is required, as is the case before me, then s. 37 of the Schedule applies.
41The applicant provides that he applied for an IRB with an OCF-3 dated July 3, 2018 and applied again with another OCF-3 dated September 24, 2019, both completed by Chiropractor, Dr. Wayne Coghlan. Both OCF-3s were within the first 104 weeks after the accident.
42The applicant alleges that the respondent failed to comply with the notice requirements of the Schedule by providing sufficient medical and other reasons in the following notices.
43In the NOEs dated March 7, 2019 and May 6, 2019, the respondent provided sufficient reasons for requesting IEs (emphasis added):
Review of the medical information provided indicates that your accident related injuries are predominantly site soft tissue strains and sprains. To have a better understanding of your injury progress and current functional status for… Income Replacement Benefits.
44In the EOB dated July 4, 2019, the respondent provides sufficient reasons as required by the Schedule (emphasis added):
Enclosed please find an Insurer's Examination report(s) dated June 20, 2019 and completed by Dr. Godwin Lau, Psychologist of Viewpoint Assessment Centre in response to your entitlement to the Income Replacement Benefit.
As per the attached report, the assessor stated that in spite of your residual emotional distress, he do [does] not believe that you suffers [suffer a] substantial inability to perform the essential tasks of your employment from purely [a] psychological perspective. There is no psychological disability (restrictions) in terms of returning to employment. There is no psychological disability, which prohibits your ability to complete the employment duties as prior to pre-accident.
Based on the medical information on your file, along with the findings of the above examinations, we have made a determination that you do not suffer a substantial inability to perform the essential tasks of your pre-accident employment as result of the motor vehicle accident of June 25, 2018.
Therefore, please be advised in accordance with Section 37 of the Statutory Accident Benefits Schedule, your entitlement to Income Replacement Benefit will be stopped effective July 17, 2019.
Section 37 of the Schedule applies to this termination of payment
45At issue in this case is continuing entitlement to an IRB. When resolving a dispute for continuing entitlement of an IRB, s. 37 of the Schedule applies. While both s. 36 and s. 37 of the Schedule require “medical and other reasons” by the respondent, s. 36(6) incorporates a consequential shall pay provision whereas s. 37 does not.
46I find that the applicant’s IRB was terminated under s. 37 effective July 17, 2019. I also find that sufficient “medical and other reasons” were provided by the respondent on March 7, 2019, May 6, 2019 and July 2, 2019 which led to that termination. The applicant also alleges a NOE and resulting EOB both dated in July 2020 are invalid.
47The applicant argues that the respondent required an IE that should be deemed improper as a result of insufficient “medical and other reasons” as required by the Schedule. However, even if I was to find that the respondent’s notices in 2020 were deficient, the notices were for a determination of whether to continue the IRB under s. 37. Since s. 37 does not contain a shall pay provision, the sufficiency of “medical and other reasons” in the respondent’s July 2020 notices are a moot point when it comes to the applicant’s position that he is automatically entitled to payment.
The applicant does not meet the post-104 IRB test
48It is well established that in accident benefits disputes, the evidentiary onus is on the applicant. Where the applicant fails to meet this burden, it is not necessary for me to consider the respondent’s evidence on the issue. The parties agree on the quantum of the benefit in dispute but they do not agree on the applicant’s entitlement. I find that the applicant did not offer sufficient evidence that addresses the test for post-104 IRB. The applicant instead claimed automatic payment as a result of deficient notice from the respondent.
49I am not convinced the applicant is entitled to receive payment for a post-104-week IRB under s. 6 of the Schedule, because the applicant did not demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
Issue iii: The applicant is not entitled to an attendant care benefit
50I find that the applicant is not entitled to an attendant care benefit in the amount of $1,472.47 per month from June 25, 2018 to June 8, 2023 and $4,061.24 per month from June 8, 2023 to date and ongoing.
51Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (“ACBs”) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”). In addition, as argued by the respondent, s. 42(5) of the Schedule states that an insurer is not required to pay for ACBs until a corresponding Form-1 is submitted.
52However, the applicant argues that the respondent provided notices with insufficient reasons by way of EOBs dated January 11, 2019 and June 12, 2023, and therefore the applicant is entitled to the ACBs claimed. I will address this below.
Defining the relevant period and quantum in dispute for ACBs
53The applicant relies on a Form-1 dated December 8, 2018 and denied by the respondent on January 9, 2019. It is unclear to me from the evidence presented when this Form-1 was submitted. The respondent takes the position it was submitted January 9, 2019 and this was not contradicted. The applicant also relies on a second Form-1 dated May 10, 2023. The applicant refers me to monthly attendant care invoices as evidence of incurred amounts for the months of August 2018 to February 2019.
54The invoices prior to January 9, 2019 are not relevant for my analysis because they are for a period prior to the corresponding Form-1 being submitted. In addition, s. 19(1)(a) of the Schedule requires ACBs to be incurred and since there is no evidence of incurred amounts relating to the second Form-1, it is not relevant for my analysis. The disputed benefit therefore is ACBs in the amount of $1,400.00 per month as invoiced for January 9, 2019 to February 28, 2019. I therefore only need to assess the relevant EOB dated January 11, 2019.
The respondent’s notices are compliant with the Schedule
55The EOB dated January 11, 2019 states the respondent’s opinion that the applicant does not have coverage for ACBs as provided in s. 14(2) of the Schedule because the applicant’s “impairment is a minor injury”. The respondent also reasons that the applicant’s “injuries are musculoskeletal strain/sprain, whiplash.”
56The applicant argues this is circular reasoning akin to the finding at paragraphs 45-48 of Taksali where the insurer determined that the insured’s impairment was predominantly a minor injury without providing reasons. However, I find that the circumstances before me are not similar to Taksali. Here, the respondent determined that the applicant is not entitled to ACBs because the applicant’s “impairment is a minor injury”. In support, the respondent references the Schedule, and substantiates its reasons by stating that the applicant’s “injuries are musculoskeletal strain/sprain, whiplash.”.
57In my view, the EOB dated January 11, 2019 stated sufficient “medical and other reasons” when responding to the applicant’s claim for ACBs.
The applicant is not entitled to ACBs
58To order payment of ACBs, I need to be satisfied on a balance of probabilities that the applicant’s claim is for reasonable and necessary incurred expenses. Since the evidentiary onus is on the applicant, if the applicant fails to meet this burden, it is not necessary for me to consider the respondent’s evidence on the issue.
59The invoices referred to by the applicant provide blank spaces for categories of relevant information to be filled-in including the client’s name, hours of service, hourly rate and the dates of service. Such information has been hand-written into the invoices. The invoices also have a section outlining services provided that is pre-typed and requires the personal support worker (“PSW”) to circle or underline the services provided from the following list:
Help with personal hygiene (teeth cleaning, hair washing, hair styling, shaving, cutting nails, taking shower/bath, help with dressing/undressing, taking for appointments, taking pills/medicine, cooking & preparing meals, range of motion exercises, etc.
In the invoices before me, no services were circled, underlined or marked up.
60The respondent’s position on the applicant’s entitlement to ACBs for this period is that the invoices refer to services for tasks that were completed by the applicant or by others including family members. The respondent further submits that the applicant has not suffered an economic loss as contemplated by the Schedule in relation to ACBs. I note that each invoice before me contains the same summary of services as provided above. If I am to view the invoices as being a specific list of services provided to the applicant during the invoice period, serious concerns arise.
61The applicant stated after the accident he couldn’t brush his teeth, but that this was resolved after a couple of days. I therefore find the portion of the invoice pertaining to teeth cleaning not reasonable and necessary for the relevant period, which was many months post-accident. He testified that his wife and daughter shaved his head and that the PSW helped when she was there. I am therefore not convinced that hair washing or hair styling services were provided during the relevant period. The applicant also testified that his wife had purchased a pill organizer that he was using prior to the PSW being engaged for any services. It is therefore unclear to what extent, if any, the PSW was assisting with taking pills/medicine. The applicant also testified that he bathes independently post-accident, however at a slow pace and with an assistive device. His wife does the cleaning, and he engages in some light cleaning when feeling up to it. As a result of the evidence presented, I find the invoices to be an unreliable source of information.
62Based on the cumulative evidence presented, I find that the applicant has not met his burden in proving on a balance of probabilities that the ACBs being claimed were of reasonable and necessary incurred expenses.
OCF-18s for treatment and assessments and costs for a Form-1 and OCF-3
63To 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. Notably, for an applicant to prove that an assessment is reasonable and necessary, it is not crucial for the applicant to prove the actual existence of a condition; rather, the applicant must prove that there is some objective evidence to suggest that some condition exists and warrants investigation via an assessment.
64However, the applicant argues that the respondent provided notices with deficient “medical and other reasons”, and at times no medical reasons at all, which is non-compliant with the Schedule. The applicant’s position is that he is entitled to his claims, as a consequence from the ‘shall pay’ provision in s. 38(11)(2). In support of his position, the applicant relies on Taksali. The respondent’s position is that it complied with the Schedule.
65In Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 (“Varriano”), the Court of Appeal found that an insurer does not always need to provide a medical reason when denying a benefit. The reasons need to be sufficient but can be either medical, non-medical, or both.
66While Varriano dealt with an income replacement benefit denied under s. 37 and the applicant’s claim for medical and rehabilitation benefits is grounded in s. 38 of the Schedule, in my view when s. 38 is read in context it includes an insurer’s obligation to deny a treatment and assessment plan on the basis of reasons that may be medical, non-medical, or both.
67The notice requirements of s. 38(8) are (emphasis added):
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.
68If an insurer fails comply with s. 38(8), one consequence is a shall pay provision found in s. 38(11)(2).
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).
69In my view, an insurer may rely on a medical reason to deny a claim by an insured under s. 38. However, there are also a number of non-medical reasons an insurer could rely on to deny payment for benefits sought under s. 38.If I were to read the notice provision in s. 38(8) to always require a medical reason, this would require an insurer to fabricate a medical reason when one isn’t available in order to attempt to comply with the Schedule. This would mean that an insurer could never deny a claim under this section until it had a medical reason to do so. For example, if an insurer denied a claim because an insured incurred the expense before submitting a treatment and assessment plan as contemplated by s. 38(3), or because a treatment and assessment plan requests payment in excess of the legislated maximum in noncompliance of s. 25(5)(a), the shall pay provision would be triggered for the insurer’s failure to provide a medical reason. It makes sense then that the intention was to allow an insurer to provide medical reasons, non-medical reasons, or both.
Issues iv and v: The applicant is not entitled to $2,200.00 each for a MRI of the neck and a MRI of the spine
70The applicant is not entitled to these OCF-18s because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
71The applicant argues that the respondent provided two EOBs dated March 21, 2019 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-18s as claimed.
72Both OCF-18s for MRIs were denied for the following reasons:
As per the CT scan dated August 7, 2018 the [there] are not internal or medical concerns relating to the accident. We continue to await other compelling medical information to determine if your injuries are beyond the Minor Injury Guidelines. We also would like to remind you that an MRI can be obtained through your family physician referral and completed under OHIP. Also, we noted that you did not attend the Insurer's Examination on March 20, 2019. We will review the attached OCF-18 when we are satisfied the all [sic] request and information.
73I find the reasons provided in the EOB to be compliant with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
Issue vi: The applicant is not entitled to $2,460.00 for a shoulder ultrasound
74The applicant is not entitled to this OCF-18 because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
75The applicant argues that the respondent provided an EOB dated March 26, 2019 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-18 as claimed.
76The OCF-18 for an ultrasound of the shoulder joint was denied for the following reasons which it referred to as non-medical reasons:
As you are aware, you are schedule to attend a multidisciplinary Insurer's Examination. We will revisit the attached OCF-18 once in receipt of the reports, and determine if it is considers [considered] reasonable and necessary.
77I find the reasons provided in the EOB to be compliant with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. It’s unclear whether the respondent eventually revisited this OCF-18 as stated it would in its reasons. I did not hear submissions or receive evidence that it did not.
Issue vii: The applicant is entitled to $2,460.00 for a cognitive assessment
78The applicant is entitled to this OCF-18 because the respondent’s reasons for denial are non-compliant with the Schedule.
79The applicant argues that the respondent provided an EOB dated March 21, 2019 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-18 as claimed.
80The OCF-18 for a cognitive assessment was denied for the following reasons:
As per the injuries sequelae, it would appear that the injuries sustained are in keeping with those covered in the Minor Injury Guideline (MIG). Review of the [sic] indicate that we are not in receipt of the compelling medical information to support that the injuries are outside of the Minor Injury Guidelines.
Per SABS Section 14(2), there is no coverage for Attendant Care if the impairment is a minor injury. Furthermore, Per Section 25(2) the insurer is not required to pay for an assessment or examination conducted in the insured person's home unless the insured person has sustained an impairment that is not a minor injury. Therefore, in the absence of any further medical information, we are denying the Treatment and Assessment Plan (OCF-18) as submitted as there is no coverage for this assessment.
81I find the reasons provided in the EOB deficient in that they are not addressing the specific OCF-18 submitted to the respondent and instead discuss attendant care. In addition, the respondent provided its opinion that the applicant’s injuries are covered by the Minor Injury Guideline but did not provide clear reasons as to why it held that opinion. I do not need to assess whether the OCF-18 is reasonable and necessary because the respondent failed to provide reasons which would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. The respondent’s denial was defective and I am not convinced it was cured prior to this hearing. Accordingly, this OCF-18 is payable pursuant to s. 38(11)2 of the Schedule.
Issue viii: The applicant is not entitled to $2,460.00 for a chronic pain assessment
82The applicant is not entitled to this OCF-18 because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
83The applicant argues that the respondent provided an EOB dated May 21, 2019 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-18 as claimed.
84The OCF-18 for a chronic pain assessment was denied for the following reasons:
We as {sic} unable to consider the attached OCF-18 request for a Chronic Pain Assessment as our records show that we continue to await the supporting medical information to determine your injuries.
Further to our ongoing communication with your legal representative we continue to wait [await] the following:
The clinical notes and records from your family physician
The hospital records from Humber River Hospital
OHIP decoded summary
Please also note that we continue to await the Insurer's Physiatrist and Psychological Examination reports. We will re-address the attached OCF-18 at that time.
85I find the reasons provided in the EOB to be compliant with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. It’s unclear whether the respondent eventually revisited this OCF-18 as it stated it would in its reasons. I did not hear submissions or receive evidence that it did not.
Issue ix: The applicant is not entitled to $2,460.00 for a psychiatric assessment
86The applicant is not entitled to this OCF-18 because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
87The applicant argues that the respondent provided an EOB dated July 5, 2019 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-18 as claimed.
88The OCF-18 for a psychiatric assessment was denied for the following reasons:
We as [sic] unable to consider the attached OCF-18 for a Psychiatric Assessment. As per the Insurer's Psychological Examination your injuries diagnosis are Chronic Adjustment Disorder With Mixed Anxiety and Depressed Mood and Specific Phobia, Situational Type (driving, especially highway driving). The assessor approved the OCF-18 dated February 28, 2019. [sic] proposing 16 counseling sessions and stated [sic] The prognosis is unclear as it depends upon his response to psychological intervention and physical progress. There were recommendation [sic] of medical intervention.
Please note that we also continue to await the medical Information from your family physician and the EMS, hospital and OHIP records that has been requested through your legal representative.
Given the above information, we take the position that the attached OCF-18 is not reasonable and necessary.
89I find the reasons provided in the EOB to be compliant with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
Issue x: The applicant is not entitled to $2,460.00 for a speech language assessment
90The applicant is not entitled to this OCF-18 because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
91The applicant argues that the respondent provided an EOB dated June 20, 2019 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-18 as claimed.
92The OCF-18 for a speech language assessment was denied for reasons which included reference to the applicant’s medical condition including specific details about the applicant’s condition forming the basis of the decision. The respondent noted the language and speech issues alleged in the OCF-18. However, in denying the OCF-18, the respondent also noted that a psychological assessment was completed without an interpreter and that the applicant denied needing an interpreter and was offended at the suggestion he had any limitations communicating in English.
93I find the reasons provided in the EOB to be compliant with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
Issue xi: The applicant is entitled to $2,460.00 for a neurological assessment
94The applicant is entitled to this OCF-18 because it is reasonable and necessary.
95The OCF-18 for a neurological assessment was denied for the following reasons (emphasis added):
As per the Insurers Examination report completed by Sukhinder Bhangu, Physiatrist on May 24, 2019. Dr. Bhangu, stated: … Comment on his reported headaches are outside my scope of expertise.
96The respondent, in its reasons, recognized that its physiatrist IE assessor had referenced that the applicant was reporting complaints of headaches and this was outside this assessor’s scope of expertise. I find that the respondent’s reasons recognized headache complaints that warrant an investigation via an assessment but then denied the assessment. Therefore, the applicant substantiated a claim that this OCF-18 is reasonable and necessary.
Issue xii: The applicant is not entitled to $575.00 for a Form-1 attendant care assessment
97The applicant is not entitled to this Auto Insurance Standard Invoice (“OCF-21”) because the respondent’s reasons comply with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
98The applicant argues that the respondent provided an EOB dated February 4, 2019 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-21 as claimed.
99The OCF-21 was denied for the following reasons: “Good or service requires prior authorization” and additionally, “Our records indicate that the corresponding Form-1 was not approved”. The applicant is not in compliance of s. 38(2) of the Schedule. The respondent is not liable to pay this assessment expense because it was incurred before an OCF-18 was submitted to the respondent. The applicant did not substantiate his compliance with s. 38(2) or the exceptions that apply to it.
100I find the reasons provided in the EOB to be compliant with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
Issue xiii: The applicant is not entitled to $200.00 for completion of an OCF-3 dated September 24, 2019
101The applicant is not entitled to $200.00 for completion of this OCF-3 because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
102The applicant argues that the respondent provided an EOB dated October 10, 2019 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the completion costs of this additional OCF-3.
103The claim was denied for the following reason, in part: “… Allstate Insurance Company did not request an updated Disability Certificate and therefore, payment for this document will not be considered reasonable and necessary.”
104I find the reasons provided in the EOB to be compliant with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
Issues xiv and xv: The applicant is not entitled to $271.20 for TENS unit accessories and transportation and to $418.09 for a body pillow, TENS unit accessories, and transportation
105The applicant is not entitled to these OCF-18s because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
106The applicant argues that the respondent provided insufficient “medical and other reasons”, dated June 10, 2019 and therefore the applicant is entitled to the OCF-18s as claimed.
107The first OCF-18 was denied for the following reasons (emphasis added):
As per the Insurer's Physiatrist Examination Report the attached OCF-18 dated November 16, 2018, would have been considered partially reasonable and necessary at the time it was submitted but focus should be on teaching an active stretching and strengthening program. However the Body Pillow (Line 3) and TENS unit (Line 5), as well as transportation (Line 9) is [sic] not considered reasonable and necessary.
108The respondent similarly denied the OCF-18 for the TENS unit accessories and transportation stating they are not considered reasonable and necessary. I find the reasons provided are sufficient in that they provide why the partially denied line items are not reasonable and necessary. The reasons state that the focus should be on teaching an active stretching and strengthening program, allowing an unsophisticated person to make an informed decision to either accept or dispute the denial at issue.
Issue xvi: The applicant is not entitled to $678.00 for transportation
109The applicant is not entitled to this OCF-18 because the respondent’s reasons for denial are non-compliant with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
110The applicant argues that the respondent provided an EOB dated July 13, 2022 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-18 as claimed.
111The OCF-18 was denied for the following reasons: “We do not agree to pay for the claimant transportation .All transportation expenses incurred for medical appointments as a result of the MVA is subject to a 50km deductible per round trip.” Additionally, “The rate to calculate transportation expenses is $0.40 per kilometer travelled. No insurer's examination will be arranged.”
112I find the reasons provided in the EOB to be compliant with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
Issue xvii: The applicant is not entitled to $2,200.00 for a SPECT scan
113The applicant is not entitled to this OCF-18 because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
114The applicant argues that the respondent provided an EOB dated June 7, 2021 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-18 as claimed.
115The OCF-18 for a SPECT scan was denied for reasons including the respondent’s outstanding requests for medical records from the applicant.
116I find the reasons provided in the EOB to be compliant with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
Issue xviii: The applicant is not entitled to $1,450.00 for fluoroscopic imaging
117The applicant is not entitled to this OCF-18 because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
118The applicant argues that the respondent provided an EOB dated June 7, 2021 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-18 as claimed.
119The OCF-18 for a fluoroscopic imaging was denied for reasons including diagnostic testing being covered under OHIP, and the respondent’s outstanding requests for medical records from the applicant.
120I find the reasons provided in the EOB to be compliant with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
Issue xix: The applicant is not entitled to $8,475.00 for an assessment service, catastrophic determination assessment, claimant transportation to treatment and diagnostic nuclear imaging
121The applicant is not entitled to this OCF-18 because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
122The applicant argues that the respondent provided an EOB dated September 10, 2021 with insufficient “medical and other reasons”, and therefore the applicant is entitled to the OCF-18 as claimed.
123The OCF-18 was partially denied for the following reasons. For occupational therapist interview in the amount of $1,000.00 plus taxes:
Denied. This can be done within Line 2 and Line 3- Section 25 5a
Section 25 (5) {a) states: despite any other provision of this Regulation, an insurer shall not pay,
(a} more than a total of $2,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019 In respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer
124For Psychological WPI in the amount of $2,000.00 plus taxes:
Denied. We approved Psych Ax under Line 5 - Section 255 a
Section 25 (5) {a) states: despite any other provision of this Regulation, an insurer shall not pay more than a total of $2,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019 In respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer
125For Client Transportation in the amount of $500.00 plus taxes:
Denied. Travel time for service provider is not compensable under the Statutory Accident Benefits Schedule.
Section 3(1) under the Statutory Accident Benefits Schedule , and in the Transportation Expense Guideline referenced In that section.
As a result, any mileage and other expenses related to the transportation of anyone other than the insured person (and aide or attendant, if any) are not “authorized transportation expenses” under the SABS, and auto insurers are not required to pay for such expenses if claimed by a health care provider
126For GOS/GOSE in the amount of $2,000.00 plus taxes:
Denied Completion of the GOS/GOS-E results are part of the assessment approved under Line 2 and Line 3 therefore this is not payable under Section 25(5)(a)
127For a brain SPECT scan in the amount of $2,000.00 plus taxes:
Denied. It is noted that SPECT scans are considered to be non-specific Imaging when compared to conventional neuroimaging such as MRI and CT scans. The results of SPECT scans can be interpreted in many different ways and can be influenced by pre-existing head injuries as well as changes in a patients mental or psychological state.
As per the paramedic report dated June 25, 2018, there was no reported head injury or loss of consciousness at the time of the accident. The CT Scan report of the head dated July 8, 2018 indicated No acute intracranial process. Review of the Hospital records indicate your injuries are muscular neck strain or whiplash injury and back strain
128I find the reasons provided in the EOB to comply with the Schedule because the reasons would allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
Interest
129I find that Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
130The 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.
131In determining the type of conduct for which an award is appropriate, the adopted standard is set out in the FSCO case Plowright v. Wellington Insurance Co. According to Plowright, the conduct must be found to be an “immoderate, imprudent, inflexible, and excessive” approach with respect to the insurer’s decision-making.
132Keeping with the standard set out in Plowright, an award should not be ordered simply because an adjudicator determined that an insurer made an incorrect determination. The insurer’s conduct must rise to the level described in Plowright, that is, excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I find that the applicant has not demonstrated this on the part of the respondent. The respondent is not liable to pay an award to the applicant.
ORDER
133The Tribunal orders:
i. The applicant has not sustained a catastrophic impairment as defined by the Schedule.
ii. The applicant is not entitled to an income replacement benefit in the amount of $185.00 per week from June 25, 2020 to June 25, 2022.
iii. The applicant is not entitled to an attendant care benefit in the amount of $1,472.47 per month from June 25, 2018 to June 8, 2023 and $4,061.24 per month from June 8, 2023 to date and ongoing.
iv. The applicant is entitled to the following medical benefits:
i. $2,460.00 for a cognitive assessment.
ii. $2,460.00 for a neurological assessment.
v.
vi. The applicant is not entitled to the remaining medical benefits.
vii. The respondent is not liable to pay an award under s. 10 of Reg. 664.
viii. The applicant is entitled to interest on any overdue payment of benefits.
Released: October 2, 2024
Amar Mohammed
Adjudicator