Licence Appeal Tribunal File Number: 22-001864/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:
Shamila Ramsingh
Applicant
and
Aviva Insurance Company of Canada
Respondent
AMENDED DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Yalda Aslamzada, Counsel
For the Respondent:
Eric Grossman, Counsel
Joshua Edmunds, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Shamila Ramsingh, the applicant, was involved in an automobile accident on September 12, 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 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.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $2,829.37 for chiropractic services, proposed by Brampton Civic Care Centre Inc. in a treatment plan dated February 21, 2020?
ii. Is the applicant entitled to $2,496.85 for physiotherapy services, proposed by Brampton Civic Care Centre Inc. in a treatment plan dated September 11, 2020?
iii. Is the applicant entitled to $1,800.00 for biopsychosocial assessment, proposed by Nazila Isgandarova, social worker, in a treatment plan dated October 14, 2021?
iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3I note that issue (iii) was incorrectly listed as “psychological services” in the Case Conference Report and Order. The treatment plan in dispute is actually for a biopsychosocial assessment, and I have amended the wording above accordingly.
RESULT
4The applicant is not entitled to the treatment plans in dispute, interest, or an award.
PROCEDURAL ISSUES
Spacing and font size of the applicant’s submissions
5The respondent submits that paragraphs 12, 18, and 22 of the applicant’s submissions do not comply with the formatting requirements ordered by the Tribunal in the Case Conference Report and Order of April 3, 2023 (CCRO). As a result, the respondent submits that I must disregard these portions of the applicant’s submissions.
6The CCRO states that submissions shall be double spaced, 12-point, and Arial or Times New Roman font. It also states that the orders made in the CCRO are subject to my discretion. The respondent does not submit that it suffered any prejudice due to the applicant’s noncompliance with the CCRO. Parties should not be encouraged to disregard Tribunal orders. However, in order to ensure that the issues are fully canvassed, and given the lack of prejudice to the respondent, I will not disregard paragraphs 12, 18, or 22 of the applicant’s submissions in making my decision on the issues in dispute.
The applicant’s reply submissions
7After the applicant provided her reply submissions, the respondent wrote to the Tribunal requesting that paragraphs 3, 4, 5, 6, 7, 8, 9, and 10 of the applicant’s reply submissions be struck. It argues that the applicant repeated the submissions presented in her original submissions, which constitutes an improper use of reply. It submits that reply submissions should only address new matters raised by the respondent’s submissions.
8I find that there is no reason to strike the paragraphs of the applicant’s reply submissions requested by the respondent. Improper reply submissions are those that raise entirely new issues that the respondent has not had an opportunity to address. There is no procedural unfairness in a party repeating their initial submissions. In any event, the applicant addressed the respondent’s arguments in her reply, and did not just repeat her original submissions. For those reasons, I decline the respondent’s request to strike certain portions of the applicant’s reply submissions.
ANALYSIS
9For the reasons that follow, I find that the applicant is not entitled to the treatment plans in dispute.
10The applicant’s argument regarding entitlement to the disputed treatment plans is focused exclusively on the application of sections 38(8), 38(11), 44(1), and 44(5)(a) of the Schedule. The applicant does not make any submissions regarding whether the treatment plans were reasonable and necessary pursuant to s. 15 and 16.
11Under s. 38(8), an insurer has the obligation to provide an insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial. If those reasons are not provided, the consequence under s. 38(11) is that the insurer must pay for the goods and services described in the treatment plan.
12Pursuant to s. 38(10) and 44(1), an insurer may notify an insured person that they are required to be examined by a regulated health professional. Section 44(5) requires an insurer to provide a Notice of Examination which sets out “the medical and any other reasons for the examination.” The medical reason should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the insurer’s request to attend the assessment (M.B. v. Aviva Insurance Canada, 2017 CanLII 87160).
13The treatment plans in dispute were for physiotherapy, chiropractic services, and a biopsychosocial assessment. The respondent requested that the applicant attend s. 44 assessments to determine her entitlement to the treatment plans in dispute. The applicant attended the assessments, and the benefits were denied based on the s. 44 reports resulting from those assessments. The crux of the applicant’s argument is that the denial letters and requests under s. 44 were deficient, and even though she attended the assessments, the resulting reports were void ab initio. Without the assessments to rely on, she argues that there was no evidentiary basis for the denials. The applicant submits that the denial letters accordingly do not comply with s. 38(8), and the mandatory payment provision of s. 38(11)2 is triggered as a result.
Compliance with s. 44(5)
Chiropractic and Physiotherapy Treatment
14I find that the letters regarding these treatment plans were not compliant with s. 44(5) of the Schedule.
15The December 1, 2020, letter from the respondent to the applicant in response to the treatment plans for chiropractic services and physiotherapy (issues (i) and (ii) above) states the following:
We are unable to determine whether these recommended services are reasonable and necessary for your injuries sustained from the motor vehicle accident on September 12, 2019. The OCF-18 dated November 17, 2020 recommends a Psychological assessment, the OCF 18s dated Feb 21, 2020 and September 11, 2020 chiropractic treatment and physiotherapy outside of the Minor Injury Guideline. Based on all available medical documentation on file to date, your injuries appear to be predominantly a minor injury. In addition, based on the time that has occurred since the onset of your injuries, we require a determination pertaining to whether you continue to be eligible for the Income replacement benefit. As a result, Aviva defers to a section 44 independent medical examination for a professional medical opinion.
16The letter subsequently sets out the monetary limit of the MIG, repeats the language of s. 18(1) of the Schedule, and advises that a s. 44 assessment would be arranged to “determine your need for a psychological assessment as well as treatment above the Minor Injury Guideline.” The applicant was also advised of her right to dispute the decision by applying to the Tribunal.
17On December 10, 2020, the respondent sent another letter outlining the details of the proposed assessments. It repeated the same wording as above, and also stated that it was unable to determine whether the recommendations made on a submitted disability certificate met the requirement for a specified benefit that she was claiming, which is not part of this application.
18The first question before me is whether the letters complied with s. 44(5) of the Schedule. The respondent did not identify what the applicant’s injuries were, or what medical evidence the respondent reviewed to make a determination that an assessment was warranted. I find that the respondent failed to provide any specificity, and therefore there were not clear and sufficient reasons to allow an unsophisticated person to make an informed decision about whether to attend the assessment. I accordingly find that the letters were not compliant with s. 44(5).
Biopsychosocial Assessment
19I find that the letter regarding this treatment plan was compliant with s. 44(5) of the Schedule.
20The letter in question is dated October 27, 2021. It stated that the respondent was unable to determine whether the applicant required a biopsychosocial assessment as a result of the accident. It noted that the applicant had been receiving continual psychological intervention, and the treatment provided should include aspects of a biopsychosocial assessment during the course of treatment. The respondent deferred to a s. 44 paper review for an independent medical opinion, and indicated that the applicant’s attendance was not necessary. The applicant was advised of her right to dispute the decision by applying to the Tribunal.
21I find that the respondent provided clear and sufficient reasons in its request for a s. 44 paper review, such that an unsophisticated person could make an informed decision about whether to allow the assessment to proceed. The applicant was already receiving psychological services, and the insurer was questioning why a psychological assessment would also be required where psychological services were already being provided.
22The applicant notes that the treatment plan included a thousand-word report from Marco Chiodo, psychological associate, wherein he described the aims and purposes of a biopsychosocial assessment. The respondent’s letter does not mention that report. The applicant submits that the respondent had an obligation to rebut the specific findings of Mr. Chiodo, and show evidence of an analysis undertaken with respect to the treatment received to date, and the biopsychosocial aspects that were presumed to have been included in the treatment.
23I disagree. Mr. Chiodo’s report does not mention the fact that the applicant had already been receiving psychological intervention, as the respondent’s letter indicates. It only states that the applicant is interested in receiving psychological services. The report does not appear to answer the question the respondent was seeking an answer to. I note that the applicant has not argued that she was not receiving psychological services at the time, or that the respondent’s letter was false in that regard. Further, I fail to see how the respondent would have been able to rebut the specific findings or recommendations of Mr. Chiodo without assistance from a medical professional.
24The applicant relies on part 4 of the treatment plan, where the health practitioner signs. It states: “I confirm that, to the best of my knowledge, the information in this Treatment and Assessment Plan is accurate, the Treatment and Assessment Plan has been reviewed with the applicant by the regulated health professional in Part 5, and the goods and services contemplated are reasonable and necessary for the treatment and rehabilitation of the applicant for the injuries identified in Part 6.”
25The applicant argues that the legislature’s use of the word “are” reflects an intent to create a rebuttable presumption that the treatment proposed is reasonable and necessary. I do not agree. In this case, the psychologist who submitted the treatment plan did not mention that the applicant had received psychological interventions. It appears to me, based on the wording of the report, that the psychologist made recommendations without knowing about the applicant’s treatment history. Clearly, the mere certification of a treatment plan does not necessarily presume that the recommendations are inherently reasonable and necessary. All it does is confirm that the information submitted is true to the best of the practitioner’s knowledge. An insurer is entitled to question that information by way of obtaining a medical opinion, so long as they comply with s. 44, including providing proper reasons in accordance with s. 44(5).
26For the reasons above, I find that the letter of October 27, 2021, was compliant with s. 44(5).
The s. 44 report is not void ab initio
27I find that despite the noncompliance with s. 44(5) with respect to issues (i) and (ii), the applicant attended the assessment with Dr. James Kenneth Stewart, and the respondent was entitled to rely on the resulting s. 44 report in denying the treatment plans.
28The applicant submits that attendance at a s. 44 assessment cannot constitute a waiver of her entitlement to be provided with a proper notice that is consistent with s. 44(5). She argues that since the Schedule constitutes remedial and consumer protection legislation, an insured person in incapable of waiving their rights thereunder. She relies on Taksali v. Aviva Insurance Company, 2023 CanLII 96347.
29In Taksali, the Tribunal found that there is “no provision for an insured to waive their right to a benefit, most especially by attending an examination at which their non-attendance would threaten their entitlement to the benefit that they are seeking” (para. 22). The Tribunal stated that the insured is placed in the position of either attending an examination for inadequate reasons, or not attending, thereby incurring the immediate loss of a benefit and the financial cost of appealing to the Tribunal. The Tribunal found that this was contrary to the spirit and intent of the Schedule.
30I do not agree that attending a s. 44 assessment, where insufficient notice has been provided, means that the applicant has waived her right to a benefit. The only right the applicant would waive by attending the s. 44 assessment is the right to argue that she should not have attended the assessment in the first place. That is not a “benefit” under the Schedule. If the insurer has not provided clear and sufficient reasons for the s. 44 request, the insured legitimately does not have to attend, and the entitlement is not threatened by the insured’s non-attendance.
31Further, I do not agree with the Tribunal’s statements in M.B. and Taksali that the Schedule makes no provision for an insured to be able to waive requirements under the Schedule, and only allows an insurer to do so. Section 44(6) allows the parties to mutually agree to waive a requirement for notice, and s. 46(2) allows an insured person to waive a conflict of interest with respect to a referral. It therefore cannot be said that the spirit and intent of the Schedule was such that an insured person could never waive any of its requirements.
32If the applicant’s interpretation was correct, it would allow insureds to make a tactical decision to attend assessments, and if the assessment was not favourable, argue that the treatment plan is payable based on a technicality. This would result in an insurer paying for an assessment that it assumed the insured person agreed to, only to have the insured person turn around and argue otherwise. I find that this would be an absurd result.
33The Schedule is consumer protection legislation. However, I do not find that the interpretation suggested by the applicant would merely serve to protect insured persons. There is already a consequence for the respondent’s failure to provide adequate notice of a s. 44 assessment: the insured does not have to attend. That is the consumer protection function built into the Schedule. To interpret the legislation otherwise would allow an insured person to obtain a tactical benefit, which goes further than protection.
34Without the Schedule explicitly stating otherwise, and in light of the absurd result that would ensue, I do not accept the applicant’s argument. I accordingly find that the s. 44 assessment report is not void ab initio, and the respondent was entitled to rely on it in its denial letter.
The ultimate denial letters comply with s. 38(8)
35I find that the denial letters complied with s. 38(8) of the Schedule, and therefore the treatment plans are not payable on account of s. 38(11).
36The respondent’s letter of February 2, 2021, denies the chiropractic and physiotherapy treatment plans based on the s. 44 report of Dr. Stewart. Aside from arguing that the s. 44 assessment is void ab initio, the applicant does not refer at all to the wording of the ultimate denial letter. I have reviewed the letter, and I find that it included clear and sufficient medical reasons and was compliant with s. 38(8). It stated that Dr. Stewart opined that no further treatment of any kind was required, and that the treatment recommended was not reasonable and necessary and would not be funded. I accordingly find that the applicant is not entitled to the treatment plans by virtue of s. 38(11), as it is not triggered.
37Similarly, the applicant does not make any argument regarding whether the ultimate denial letter for the biopsychosocial assessment complied with s. 38(8). I have reviewed the denial letter of November 16, 2021, and find that it provided clear and sufficient medical reasons. It referred to the s. 44 assessment of Dr. Pushpa Kanagaratnam, who opined that the treatment plan was not reasonable and necessary as it was considered a duplication of services. I accordingly find that s. 38(11) is not triggered, and the applicant is not entitled to the treatment plan on that basis.
Reasonable and necessary
38The applicant is entitled to receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule if she demonstrates, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident.
39As indicated above, the applicant did not make any submissions or provide any evidence regarding whether the treatment plans in dispute are reasonable or necessary. As a result, I find that she has not met her burden in that regard, and she is accordingly not entitled to the treatment plans.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, interest does not apply.
Award
41Under s. 10 of Reg. 664, 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. As I have found that no benefits are payable, the applicant is not entitled to an award.
ORDER
42The applicant is not entitled to the treatment plans in dispute, interest, or an award.
Released: November 15, 2024
Rachel Levitsky
Adjudicator```