Citation: Khaledi v. Intact Insurance Company, 2025 ONLAT 24-012099/AABS

Licence Appeal Tribunal File Number: 24-012099/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:

Sarah Khaledi

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Timothy Porter

APPEARANCES:

For the Applicant:

Shannon Kelly, Counsel

For the Respondent:

Kathy Conteh, Counsel

Heard by Videoconference:

June 23, 2025

OVERVIEW

1Sarah Khaledi, the applicant, was involved in an automobile accident on July 30, 2022, 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, Intact Insurance Company, 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 $87.19 ($3,307.77 less $3,220.58 approved) for physiotherapy services, proposed by Healthmax Physiotherapy in a treatment plan/OCF-18 (“plan”) dated November 17, 2022?

ii. Is the applicant entitled to $64.64 ($3,062.54 less $2,975.35 $2,997.90 approved) for chiropractic services, proposed by Healthmax Physiotherapy in a plan dated January 18, 2023?

iii. Is the applicant entitled to $50.39 ($2,333.32 less $2,282.93 approved) for chiropractic services, proposed by Healthmax Physiotherapy in a plan dated September 2, 2022?

iv. Is the applicant entitled to $67.64 ($4,725.65 less $4,635.46 $4,658.01 approved) for chiropractic services, proposed by Healthmax Physiotherapy in a plan dated September 29, 2022?

v. Is the applicant entitled to $50.39 ($2,200.00 less $2,149.61 approved) for a psychological assessment, proposed by Complex Care Medical and Health Services in a treatment plan dated November 22, 2022?

vi. Is the applicant entitled to $87.19 ($2,347.00 less $2,259.81 approved) for an In-Home Assessment, proposed by Healthmax Physiotherapy in a treatment plan dated September 30, 2022?

vii. Is the applicant entitled to $100.25 ($2,486.00 less $2,385.75 approved) for a driving assessment, proposed by DriveLab Inc. in a treatment plan dated May 5, 2023?

viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

ADDED/ REMOVED ISSUES

3Issues [2] ii, and [2] iv above reflect the updated amounts in dispute as a result of the respondent re-adjusting claims following the catastrophic designation of the applicant.

4Issues [4] 1, [4] 6, [4] 8, and [4] 11 from the case conference report and order of January 24, 2025, were removed by the applicant as issues in dispute at the beginning of the hearing.

5Issue [2] vii was added to the issues in dispute at the hearing, this is addressed below under procedural issues. For clarity there are 7 partially approved treatment plans in dispute.

RESULT

6The applicant is entitled to the outstanding balances of the partially approved treatment plans.

7The applicant is not entitled to an award.

8The applicant is entitled to interest on the outstanding amounts.

PROCEDURAL ISSUE

9Prior to opening statements by the parties, the issues in dispute were reviewed. During this review, applicant noted that one of the issues in dispute was not included in the case conference report and order (“CCRO”); specifically, whether the applicant is entitled to $100.25 ($2,486.00 less $2,385.75 approved) for a driving assessment, proposed by DriveLab Inc. in a treatment plan dated May 5, 2023. The applicant asked to add the issue to the issues in dispute.

10The respondent did not consent to the addition of the matter to the issues in dispute.

11The applicant submitted that the item in dispute missing from the issues in dispute relates to the cost of an examination wherein the respondent denied a portion of the document support activity relating to an OCF-18 submission by DriveLab Inc. for a driving assessment. The applicant pointed to the original application which listed this dispute item as issue number 6. The applicant submitted the omission of this issue from the CCRO is a Tribunal error.

12The applicant submitted that if the claim does not proceed the applicant would be extremely prejudiced as the time to challenge the denial has now passed. The applicant submitted that the respondent is well aware of this issue in dispute, having agreed to inclusion of the materials related to this issue in the Joint Document Brief and Supplementary Joint Document brief. Finally, the applicant submits that the argument for the applicant’s entitlement to this treatment plan and the respondent’s argument against entitlement are identical to each of the other treatment plans in dispute and therefore there is no prejudice to the respondent.

13The respondent submitted that the issue is not listed in the CCRO, that the applicant had ample time to seek an amendment or bring a motion to update the issues in dispute, and that the respondent is not prepared for this issue but only the issues listed in the CCRO.

14I agreed to add the issue to the issues in dispute for the following reasons:

I. I acknowledge that procedural fairness requires that the respondent should know the case they have to meet prior to the hearing, I find that the respondent was aware of this issue as it was listed in the application, and that this issue, as with all issues in dispute, relates to the Professional Services Guideline. Further, I find that the materials included in the Joint Document Brief submitted June 5, 2025, and the Supplementary Joint Document Brief submitted June 16, 2025, contain materials related to this issue, and I find that the materials follow the same exhibit pattern as those for the other substantive issues in dispute. The prejudice to the applicant is absolute as the 2-year limitation period to initiate a dispute in this matter has passed. Therefore, I find that in weighing relative prejudice, I find that the applicant would be extremely prejudiced if the issue were not included, the prejudice to the respondent is limited.

II. I rely on the intent of the Schedule as consumer protection legislation. The applicant has identified a dispute with the respondent, it could be perceived that the respondent is relying on a technicality that in this situation could undermine the consumer protection intention of the legislation. I find that the Tribunal has mastery of its process, and that the consumer protection mandate favors me exercising discretion to add this issue.

III. As per Tribunal rule 3.1b I find that inclusion of the issue in the issues in dispute would be the most efficient and proportional manner in which to proceed with the matter.

IV. For the reasons above I agreed to add issue [2] vii, as set out above, to the issues in dispute in this hearing.

V. The hearing proceeded without further objection from the respondent.

VI. As per my findings below, whether the issue was included in the issues in dispute or not the plan would, on principle, be payable using the same analysis.

ANALYSIS

The Denials are not sufficient

15Each of the seven OCF-18s in dispute have an approved treatment and bill for a documentation support activity as a “PR” charge for completion of the OCF-18; the two options available to a provider in completing this section of the form are “HR” for a per hour amount charge and “PR” for a per procedure charge. In each instance of dispute, the respondent chose to pay 1 hour of the provider’s time on an “HR” basis for completion of the OCF-18 instead of the “PR” charge billed in the OCF-18.

16I find that, on a balance of probabilities, the applicant is entitled to the treatment plan document support activity in each of the treatment plans in dispute.

17Section 38.8 of the Schedule provides that within 10 business days after it receives a 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.

18Section 38.11 of the Schedule provides that if an insurer fails to give a notice in accordance with s. 38.8 in connection with a treatment and assessment that according to s. 38.11.2 the insurer shall pay for all goods, services, assessments, and examinations described in the plan.

19The applicant submits that in denying portions of the documentation support activity on each of the treatment plans in dispute the respondent did not provide medical or other reasons and therefore has not complied with s. 38(8). The applicant relies on OCF-18 submissions, and correspondence from the respondent.

20The respondent submits that the applicant must prove that the fee in each situation is reasonable and necessary and that they have not withheld any treatment from the applicant. The respondent relies on the Schedule and their correspondence with the applicant.

21The respondent has not provided medical and all the other reasons as to why the benefit was not approved. For each of the OCF-18s the respondent sent a notice to the applicant that details the decision to not pay for the full documentation support activity. The content may have minor variations but follows the explanation outlined below:

i. “In accordance with section 25 of the Schedule, an insurer is not liable to pay for expenses in excess of the PSG. In an effort to ensure you are receiving the recommended service(s), we will approve the cost of the recommended service fees and/or form completion accordingly to one hour of the health care provider who completed the form.”

In my mind this is a statement and not a reason. The respondent is pointing to a legal basis for not paying the disputed fee but does not offer a principled rationale based fairly on the applicants file and explain such so that unsophisticated parties can meaningfully understand the decision.

22The respondent’s statement above does not explain how s. 25 of the Schedule is related to this decision, how the PSG is involved or how the proposed expense falls outside of expenses allowed in the PSG. Ultimately, there is no explanation of why the respondent finds the “PR” fee to be unreasonable or unnecessary.

23In addition, the amount billed in each of the OCF-18’s in dispute, for the document support activity, does not exceed the maximum allowable in the PSG. Each of the seven plans in dispute had an approved treatment or assessment and also had $200.00 billed for document support activity on a “PR” basis. The maximum allowable for document support activity on a “PR” basis in the PSG is $200.00.

24I find that, on a balance of probabilities, the applicant is entitled to the treatment plan document support activity in each of the treatment plans in dispute.

Interest

25I find that interest applies to the overdue benefits pursuant to s. 51 of the Schedule.

Award

26The 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.

27The applicant submitted that the respondent unreasonably withheld payment of the document support activity, arbitrarily altering the billed amount of the treatment plans without providing any medical or other reasons for these decisions. The applicant submits that this is contrary to s. 38(8) and 38(11). The applicant requested an award of 50% of the amount arbitrarily withheld to appropriately admonish the insurer that this is not acceptable.

28The respondent submitted its adjusters acted in good faith and with the applicant’s interests in mind in all decisions and highlighted that no medical benefits were denied.

29The respondent is not liable to pay an award. While the respondent appears to have made consistent mistakes in its application of the Schedule to the adjustment of the treatment plans, the applicant was not denied treatment and their behaviour in my judgement does not rise to the level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

ORDER

30The applicant is entitled to the outstanding balances of the partially approved treatment plans.

31The applicant is not entitled to an award.

32The applicant is entitled to interest on the outstanding amounts.