Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-015654/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.
Parties
Between:
Christopher McDonald-Rogers
Applicant
And
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: John Mazzilli
APPEARANCES
For the Applicant: Anthony Gullo, Counsel
For the Respondent: Geoffrey Keating, Counsel Ibrahim Farag, Counsel
HEARD: By way of written submissions
OVERVIEW
1Christopher McDonald-Rogers (the “applicant”) was involved in an automobile accident on June 22, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva Insurance Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent denied funding for the treatment and assessment plans in dispute. The applicant disagrees and applies to the Tribunal for resolution because he believes there is compelling evidence in support for some of the requested treatment plans that are reasonable and necessary and because he alleges that all of the denial notices sent by the respondent are in breach of section 38(8) of the Schedule and therefore the disputed treatment and assessment plans should be payable in accordance with s.38(11) of the Schedule.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $6,119.41 for physiotherapy, proposed by Health Bound Health Network in a treatment plan dated February 1, 2022?
ii. Is the applicant entitled to $2,400.00 for PRP injections, proposed by The Ability Clinic Healthcare Provider in a treatment plan dated October 7, 2021?
iii. Is the applicant entitled to $359.63 ($4,797.63 less $4,438.00 approved) for physiotherapy, proposed by Health Bound Health Network in a treatment plan dated June 29, 2021?
iv. Is the applicant entitled to $49.88 ($4,587.63 less $4,537.75 approved) for physiotherapy, proposed by Health Bound Health Network in a treatment plan dated September 13, 2021?
v. Is the applicant entitled to $1,122.15 ($4,239.55 less $3,117.40 approved) for psychological services, proposed by Health Bound Health Network in a treatment plan dated November 10, 2021?
vi. Is the applicant entitled to $149.63 ($4,587.63 less $4,438.00 approved) for physiotherapy services, proposed by Health Bound Health Network in a treatment plan dated November 15, 2021?
vii. Is the applicant entitled to $1,795.40 ($4,239.55 less $2,444.15 approved) for psychological services, proposed by Health Bound Health Network in a treatment plan dated October 3, 2022?
viii. Is the applicant entitled to $1,795.40 ($4,239.55 less $2,444.15 approved) for psychological services, proposed by Health Bound Health Network in a treatment plan dated March 2, 2023?
ix. Is the applicant entitled to $4,358.83 for physiotherapy, proposed by Health Bound Health Network in a treatment plan dated January 17, 2023?
x. Is the applicant entitled to $4,358.83 for physiotherapy, proposed by Health Bound Health Network in a treatment plan dated October 26, 2023?
xi. Is the applicant entitled to $14,029.19 for a chronic pain program, proposed by Excel Medical Diagnostics in a treatment plan dated February 6, 2023?
xii. Is the applicant entitled to $ 2,460.00 for a chronic pain assessment, proposed by Excel Medical Diagnostics in a treatment plan dated December 29, 2021?
xiii. Is the applicant entitled to $ 2,200.00 for a psychological assessment, proposed by Excel Medical Diagnostics in a treatment plan dated September 7, 2021?
xiv. Is the respondent entitled to costs?
xv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xvi. Is the applicant entitled to interest on any overdue payment of benefits.
4Withdrawn Issue: The applicant withdrew issue xi as listed above.
RESULT
5The disputed treatment plans are not reasonable and necessary.
6The respondent’s denial letters are in accordance with s.38(8) of the Schedule.
7The applicant is not liable to pay $500.00 in costs to the respondent.
8The applicant is not entitled to an award.
PROCEDURAL ISSUES
Notice of Motion by the respondent
9On February 11, 2025, the respondent filed a notice of motion with the Tribunal. The respondent sought an order to strike the applicant’s reply to submissions, and to order the applicant to pay costs if the motion were to be opposed.
10The respondent submits that the applicant’s reply submissions are improper because they introduce new evidence, contrary to the principles set out by the Supreme Court of Canada in R.v.Krause, 1986 CanLII 39 because he includes various submissions and arguments that ought to have been raised in the applicant’s initial submissions and thus constitute improper reply.
11The applicant argues that his reply to submissions ought not be struck as they are a proper reply and do not contain new evidence but rather directly respond to the arguments and evidence raised by the respondent in its submissions.
Late filed submissions
12Specifically, the respondent points to paragraphs 1-6 of the applicant’s reply to submissions, which relate to the late filed initial submissions by the applicant. For context, the respondent in its hearing submissions took exception to the applicant’s service of his initial submissions and brief because they were served on the respondent one day past the deadline stipulated in the Case Conference Report and Order dated May 24, 2024. The respondent therefore requested that I place no weight on the evidence that was late served.
13The applicant in his reply to submissions addressed the late submission and in his reply to submissions argued that the respondent was three days late in serving its own responding submissions and requested the same relief, namely that the respondent’s submissions and brief not be considered.
14I admit both parties’ briefs and submissions. As both parties late filed their submissions there is no prejudice to either party. I further find that the applicant’s reply to submissions do not introduce new evidence in paragraphs 1-6, but rather address the respondent’s argument that I assign no weight to his evidence because it was late filed. Accordingly, the respondent’s request to strike paragraphs 1-6 of the applicant’s reply submissions is denied.
Improper denials
15The respondent submits that paragraphs 7-20 of the applicant’s reply submission constitute an improper reply and must be struck. It argues that the applicant should have anticipated that it would be providing evidence and law to advance the claim that its denials are proper in accordance with the Schedule.
16The applicant argues that his reply submissions are a proper reply as they do not contain new evidence and directly respond to the arguments and evidence raised by the respondent in its submissions.
17I find that the applicant did not introduce new evidence in his reply to submissions at paragraphs 7-20 as the applicant restated his arguments and evidence already contained in his initial submissions.
18Paragraphs 7-20 of the applicant’s reply submissions are in reply to the respondent’s argument that the applicant did not provide evidence of when the OCF-18’s were received by the respondent, and generally respond to the respondent’s arguments about the reasonableness and necessity of the disputed treatment plans, and its arguments that the disputed plans are in accordance with s.38(8) of the Schedule.
19While I find that the applicant did not introduce new evidence in his reply to submissions at paragraphs 7-20, my decision below will address my concern with when the applicant submitted the disputed OCF-18’s to the respondent. Accordingly, the respondent’s request to strike paragraphs 7-20 of the applicant’s reply submissions is denied because the applicant did not introduce new evidence in his reply to submissions.
Disputed treatment plans
20The respondent submits that at paragraphs 21-25 the applicant addresses the respondent’s submission that the disputed treatment plans are not reasonable and necessary and that given the reasonableness and necessity is the central to any LAT dispute the applicant could have anticipated that the respondent would argue such.
21The applicant argues that his reply submissions at paragraphs 21-25 are a proper reply and do not contain new evidence and directly respond to the arguments and evidence raised by the respondent in its submissions at paragraphs 29, 36, 37 and 25. The applicant further argues that he could have not anticipated that the respondent believed physiotherapy treatment was not reasonable and necessary as future treatment plans (not subject to this hearing) for physiotherapy were approved.
22I find that the applicant did not introduce new arguments and evidence in his reply submissions at paragraphs 21, 22 and 25. I further find that the applicant provided a new argument and additional evidence at paragraphs 23 and 24 in his reply submissions that could not have been anticipated and are not included as part of his initial submissions as the applicant points to future treatment plans being approved that are not subject to this hearing.
23I find that the applicant can rely on paragraphs 21, 22 and 25 of its reply to submissions because he did not introduce new evidence or arguments. However, I also find that the applicant cannot rely on paragraphs 23 and 24 of his reply to submissions because the respondent would be prejudiced if I were to allow this evidence into the hearing, because the respondent did not have an opportunity to address this evidence in its submissions, and because an explanation was not provided on why this evidence was not submitted at first instance.
Weight of evidence
24The respondent submits that at paragraph 26 of the applicant’s reply to submissions, the applicant argues that the s.44 assessment report should be given less weight, and that the applicant could have anticipated that the respondent would rely on its s.44 reports to defend the denials.
25The applicant argues that his reply submissions are proper and do not contain new evidence and directly responds to the arguments and evidence raised by the respondent in its submissions at paragraphs 25 to 41.
26I find that the applicant did not introduce new evidence. I further find that both parties argued that more weight be assigned to their respective assessors, and I will address the weight given or diminished, if any, below in my decision for issue xii-the chronic pain assessment in the amount of $2,460.00. Accordingly, the respondent’s request to strike paragraph 26 of the applicant’s reply submissions is denied.
ANALYSIS
Are some of the treatment plans reasonable and necessary and are any of them payable in accordance with s.38(11)?
27To receive payment for a treatment and assessment plan under sections 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.
28Section 38 of the Schedule sets out the rules of the submission of and response to treatment and assessment plans between the insured and the insurer. Section 38(8) reads that 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.
29In this case, the applicant did not argue that all the disputed treatment and assessment plans are reasonable and necessary; however, he argued that all the respondent’s notices do not comply with s.38(8) because the medical and other reasons provided by the respondent are deficient.
30The respondent argued that the applicant cannot prove when some of the OCF-18’s were submitted to the respondent and therefore all its notices are in accordance with the 10-business day denial period in accordance with s.38. It further argues that all its notices provided sufficient medical and other reasons for its denial. In some instances, the applicant also submits that a section of the Schedule was not included in the denial notices, therefore he argues that those notices are further deficient in accordance with s.38(8).
Physiotherapy plans: issues i, and x above
Issue I - physiotherapy plan dated February 1, 2022, for $6,119.41
31I find on a balance of probabilities that the applicant is not entitled to $6,119.41 for physiotherapy because it is not reasonable or necessary and because the respondent’s denial letters are in accordance with s. 38(8) of the Schedule.
32The OCF-18 is dated February 1, 2022. The applicant did not dispute that it was provided to the respondent on March 23, 2022, and denied on March 30, 2022.
33The applicant submits that the denial does not contain medical reasons but simply an elaborate statement that the respondent believes that the treatment plan is not reasonable and necessary. The applicant submits that the respondent failed to provide any detail about the applicant’s condition as described in the available documentation from Dr. Ko’s, physiatrist, report dated March 29, 2022.
34He submits that aside from the s.38(8) deficiencies, there is compelling evidence to support his need for the requested treatment and relies on the clinical notes and records (“CNRs”) from the applicant’s family physician Dr. Razvi, the CNRs of Dr. Pinder Sahota, physiatrist, dated September 2, 2021, an MRI of the lumbar spine, dated October 29, 2021, and an MRI of the right shoulder dated January 10, 2022.
35The respondent argues that its denial notice is in accordance with s.38(8), as it provided the applicant a notice of examination on March 23, 2022, provided medical reasons for the denial of the plan for physiotherapy, chiropractic and massage therapy and relied on its insurer’s examination report by Dr. Ko, physiatrist, dated December 7, 2021, and March 29, 2022. The respondent further argues that a subsequent denial letter dated March 30, 2022, also denied the plan because it was not reasonable and necessary and provided medical reasons for the denial.
36The applicant submits that the account summary records from Health Bound Health Network Inc show the date the OCF-18s were completed, submitted and denied, however the only plan with a corresponding benefit is for psychological services, the remaining account summary is vague, lacks the identification of the medical benefit for which the corresponding OCF-18 relates to. It would be inappropriate for the Tribunal to go through the evidence and make the case for the applicant based on the account summary from Health Bound Network, which render me unable to decipher the corresponding plan because there is no reference to what the OCF-18 is in relation to other than what appears to be an internal code of reference.
37For the purposes of this decision, In the instance where the only evidence before me solely relies on the account summary from Health Bound Health Network Inc, I find that the applicant has not met his onus to entitlement based on the respondent’s denial letters being noncompliant with s.38(8).
38I find on a balance of probabilities that the respondent denied the treatment plan for physiotherapy in accordance with s.38 of the Schedule.
39The applicant did not submit the respondent’s initial denial letter dated March 23, 2022, to the Tribunal. In the medical reasons for their denial, the respondent stated that the disputed plan was not reasonable and necessary and relied on the insurer’s examination report of December 7, 2021, which determined that the applicant has reached maximum medical improvement and because there was no new medical documentation to support the plan. This denial further informs the applicant that an independent medical examination has been scheduled and asks the applicant to provide any additional relevant or necessary documents to support his claim.
40Following Dr. Ko’s s.44 paper review the respondent further advised on March 30, 2022, by way of letter to the applicant that the treatment plan was not reasonable and necessary. The examination report of Dr. Ko was enclosed with the denial letter to the applicant with the following medical reasons: “The assessor has recommended referral to a sports medicine doctor or physiatrist, through his family doctor’s office, who has experience in treating ongoing soft tissue pain from the motor vehicle accidents. Dr. Ko is of the opinion that you may benefit from an exercise program including cardiovascular and low-resistance strength training which is best done with the supervision of an experienced physician. Please submit a Treatment Plan (OCF-18) for the recommended treatment to Aviva for consideration”.
41I find that including the entire examination report with the paragraph listed above is more than sufficient medical reasons for the denial in accordance with s.38(8) of the Schedule because the denials contained sufficient medical and other reasons, informed the applicant of its intention of a s.44 examination for which it relied upon and provided to the applicant.
42In addition, the applicant did not argue that the denial letter was not sent to the applicant within 10 business days after the respondent’s receipt of the OCF-18, therefore, I accept that the denial was received by the applicant in accordance with the timing requirement in s.38(8). In addition, it is my view that providing a section of the act for which the respondent relies upon in its denial is not necessary because an unsophisticated person will not benefit or understand why they are being denied the benefit by simply adding a section number of the Schedule.
43I further find on a balance of probabilities that the disputed treatment plan for physiotherapy is not reasonable or necessary for the following reasons.
44Dr. Ko in his report recommended a referral to a sports medicine doctor or physiatrist through his family physician that has experience in treating ongoing soft tissue pain from the accident. Dr. Ko is under the opinion that an exercise program including cardiovascular and low-resistance strength training is best done with the supervision of an experienced physician.
45While the applicant points to Dr. Razvi’s family physician CNR of July 30, 2021 in support of physiotherapy, this note is vague as it states “continue with PT for bladder u/s and PSA along with routine BW for x-ray and u/s” I find that the report of Dr. Sahota, physiatrist dated September 2, 2021 corroborates Dr. Ko’s conclusion that the treatment plan is not reasonable and necessary as Dr. Sahota notes that the applicant has participated in physiotherapy and has seen minimal improvement with this, and that at home they have been stretching and strengthening for aerobic fitness as well as walking, which further supports a finding that the treatment plan is not reasonable or necessary.
46I find on a balance of probabilities that the applicant is not entitled to $6,119.41 for physiotherapy because it is not reasonable or necessary and because the respondent’s denial letters are in accordance with s. 38 of the Schedule.
Issue x - physiotherapy plan dated October 26, 2023, for $4,358.83
47I find that the applicant is not entitled to $4,358.83 for physiotherapy services because the respondent’s denial letter is in accordance with s.38(8).
48The applicant’s submissions focused on noncompliance with s.38(8) and not the reasonableness or necessity of the disputed treatment plan.
49The respondent received the OCF-18 on November 1, 2023, and denied the plan on November 16, 2023, within 10 business days after the receipt of the OCF-18 in accordance with s.38(8).
50In addition, I find that the respondent’s denial letter contained sufficient medical and or other reasons for the denial. The letter states that “Aviva has determined the treatment submitted is not reasonable or necessary for the following reasons: You were previously assessed by Dr. Michael Ko. Dr. Ko in his report dated Aug. 17, 2023, opined that, "I am of the continued opinion that Mr. McDonald-Rogers sustained soft tissue injuries from his motorcycle accident of 2021 and given the duration of symptoms and the lack of overall improvement, he has reached maximum medical improvement at this point. Mr. Rogers has received therapy of similar nature in the past, which failed to provide any permanent relief of his pain, and today’s clinical examination did not show evidence of nerve impingement or structural musculoskeletal injuries attributable to the motorcycle accident of 2021. Therefore, the treatment proposed by Chris Sarro does not appear to be reasonable or necessary.” In my view the respondent provided medical and other reasons in accordance with s.38(8).
51Accordingly, I find on a balance of probabilities that the applicant is not entitled to $4,358.83 for physiotherapy services because the respondent’s denial is in accordance with s.38 of the Schedule.
Platelet-Rich Plasma (PRP) Injections-issue ii
52I find on a balance of probabilities that the PRP treatment plan is not reasonable and necessary. I further find on a balance of probabilities that the respondent’s denial letter of October 25, 2021, and December 7, 2021, are compliant with s.38(8).
53The disputed plan is in relation to an OCF-18 dated and received by the respondent on October 7, 2021, for PRP injections in the amount of $2,400.00. On October 25, 2021, the respondent’s denial letter informed the applicant of a scheduled Insurers examination with Dr. Ko on November the 26, 2021.
54The applicant submits that the denial does not contain medical reasons but simply an elaborate statement that the respondent believes that the treatment plan is not reasonable and necessary contrary to s.38(8) and relies on M.B v. Aviva, 2017 CanLII 87160 and T.F. v. Peel, and G.P. v. Wawanesa, 2018 CanLII 39373.
55The applicant submits that while the denial letter of December 7, 2021, informs the applicant that the plan was denied based on the IE report of Dr. Ko dated December 7, 2021, it does not ask the applicant to read the report and that the letter refers to assessors; however, there was only one assessor thereby making the respondent’s denial confusing.
56The respondent argues that its denial letters are in accordance with the Schedule and submits that the explanation of benefits lists the medical reason by way of letter dated October 25, 2021, and the medical reasons for its denial as “the provider uses unusual novel, alternative, experimental, or otherwise questionable treatment techniques that may not have scientifically proven therapeutic or diagnostic value”. And that its subsequent letter based on Dr. Ko’s insurers examination dated December 7, 2021, confirms the plan as not payable and relies on the IE report of Dr. Ko dated December 7, 2021.
57It should be noted that neither party provided the Tribunal with the OCF-18 in question, therefore I rely on the denial letters and the medical evidence to support my finding.
58I find that the respondent complied with s.38 because the OCF-18 was received by the respondent on October 7, 2021. This date is reflected in the denial letter sent to the applicant on October 25, 2021, accounting for Thanksgiving Monday of 2021, the 10-business day deadline for the denial is October 25, 2021.
59The respondent denied the treatment plan on October 25, 2021, because it was unable to determine if the injections are reasonable and necessary at this time, and accordingly advised the applicant that he was to undergo an insurer’s examination. The respondent relies on the IE report of Dr. Ko dated December 7, 2021, as the basis for its denial of the plan. I find that attaching the report as the basis for its denial does comply with s.38(8). While the letter does reference assessors as opposed to just the one assessor namely Dr. Ko, I do not find this confusing, if one was to read the report that was attached.
60In addition, the applicant points to the plan being reasonable and necessary and relies on the CNRs of Dr. Pinder Sahota, physician. However, the notes of Dr. Sahota do not recommend the PRP injections, but rather the recommended plan was an active rehabilitation plan for stretching, strengthening and a home exercise program, consistent with Dr. Ko’s recommendations.
61In addition, Dr. Sahota did treat the applicant with “a landmark-based therapeutic trigger point injection” on October 7, 2021, and not a PRP injection. Therefore, on a balance of probabilities I find that the treatment plan is not reasonable or necessary.
62I find on a balance of probabilities that the PRP treatment plan is not reasonable and necessary. I further find on a balance of probabilities that the respondent’s denial letters of October 25, 2021 and December 7, 2021, are compliant with s.38(8).
Issues iii, iv, v, vi, viii, ix and xiii - denied portion of the treatment plans
63I find that the respondent’s denial letters for issues iii, iv, v, vi, viii, ix and xiii are proper because they contained “other reasons” for the denial satisfying the requirement under s.38.
64The applicant submits that while the respondent partially approved the treatment plans in issues iii, iv, v, vi, viii ,ix and xiii, the reason for the denied portion of these treatment plans is deficient because the notices did not provide the medical and other reasons for goods and services it did not agree to pay for, and that the denial letters did not refer to any section of the Schedule upon which the respondent relied upon.
65The respondent argues that its denial letters are proper as they clearly indicate the “other reasons” why the denied portions are not payable, as each denial stated there is no coverage for planning and preparation fees. It further argues that neither the healthcare provider nor the applicant provided reasons as to why the excessive fees are reasonable and necessary, and that the Professional Services Guideline (“PSG”) prevents an insurer from being liable for brokerage fees associated with the treatment plans.
66The PSG sets the hourly rates for professional services covered under the Schedule. The PSG stipulates that for services provided by health care professionals and providers not covered by the PSG, then the amount payable is to be determined by the parties involved.
67The denial letters for the issue relate iii, iv, v, vi, viii, ix and xiii, relate to treatment and assessment plans that were partially approved by the respondent. The disputed portions of the above plans are in relation to planning, preparation and service fees which is articulated in the denial letters as not payable in accordance with the PSG.
68Accordingly, I accept that the respondent has provided “other” reasons for the denial in accordance with the Schedule that are clear to an unsophisticated party. The notices do not contain a reference to a specific section of the Schedule for their denial which I have already discussed above as not being necessary or helpful to an unsophisticated individual.
69I find on a balance of probabilities that the respondent’s denial letters are in accordance with s.38(8) for issues iii, iv, v, vi, viii, ix and xiii.
Issue vii partial denial $1,795.40 ($4,239.55 less $2,444.15)
70I find that the respondent’s denial letter is in accordance with s.38(8) of the Schedule.
71The applicant submits that the disputed treatment plan for psychological services did not contain medical and other reasons for goods and services it did not agree to pay, contrary to s.38(8) of the Schedule. The applicant submits that the denial did not provide a comprehensive breakdown of which goods and services it did not agree to pay for and that there was no section of the Schedule that the respondent relied upon in its denial. He submits that the notice did not advise when the respondent required a progress report or what constitutes a reasonable fee.
72The respondent argues that its denial letters are proper as they clearly indicate the “other” reasons why the denied portions are not payable the denial states there is no coverage for planning and preparation fees. It further argues that neither the healthcare provider nor the applicant provided reasons as to why the excessive fees are reasonable and necessary and that the PSG prevents an insurer from being liable for brokerage fees.
73The denial letter dated October 14, 2022, is in relation to an OCF-18 submitted for psychotherapy treatments on October 3, 2022, which does comply with the 10-business day deadline in accordance with the Schedule. I find that the respondent did give proper reasons for its denial because it communicated that the fees related to pre- and post-session preparation notes are not approved, because there is no coverage in the policy.
74The denial further explains that any expenses related to the preparation for treatment and session notes should be included in Dr. McDowall’s hourly rate. It further explains that a progress report and progress evaluation are also not approved, and that should it require a progress report, the respondent will contact the training facility and request one and agree to pay reasonable fees for the report. As the treatment was approved, I find that medical reasons are not necessary and that the respondent’s other reasons noted above are compliant with s.38(8) of the Schedule.
75I find on a balance of probabilities that the respondent did provide the applicant with medical and other reasons within the 10-business day requirement of s. 38(8) as the denial letter from the respondent was sent to the applicant 9 business days after receiving the OCF-18.
Chronic pain
Issue xii-chronic pain assessment
76Issue xii relates to a chronic pain assessment in the amount of $2,460.00, submitted by the applicant on January 20, 2022, and denied by the respondent by way of letter dated February 3, 2022.
77The purpose of an assessment is to determine whether a condition exists. The onus is on the applicant to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
78The applicant submits that the denial does not contain medical reasons but simply an elaborate statement that the respondent believes that the treatment plan is not reasonable and necessary, contrary to s.38(8). The applicant further submits that the plan is reasonable and necessary and relies on the CNRs of Dr. Razvi dated July 30, 2021, the MRI of the applicant’s thoracic spine dated October 28, 2021, the MRI of the lumbar spine dated October 29, 2021, and the MRI of the right shoulder dated January 10, 2022.
79The respondent argues that the assessment is not reasonable and necessary because it argues that the applicant has not established that he has met at least three of the six criteria set out in the AMA Guides and relies on the reports of Dr. Ko dated December 7, 2021, and March 29, 2022. The respondent further argues that all denials are in accordance with s.38(8).
80The applicant argues that I ought to place more weight on the report of Dr. Brown, chronic pain physician dated February 6, 2023. However, this report was completed nearly one year after the disputed treatment plan was submitted, and as such, I place little weight to Dr. Brown’s report because the contemporaneous evidence at the time the assessment was submitted did not suggest the applicant’s accident-related injuries resulted in chronic pain, but rather the evidence suggests that the applicant’s injuries were all soft tissue sprains and strains.
81In addition, in her report to the applicant’s family physician Dr. Razvi dated January 12, 2022, the applicant’s treating physician Dr. Sahota, physician at The Ability Clinic, opines that the applicant’s injuries reported at this point do not require further investigations as this would not change management. The applicant was recommended to engage in an active rehabilitation plan for stretching and strengthening, and a home exercise program was discussed. This plan is consistent with that of Dr. Ko’s reasons for the denial of the assessment plan in dispute.
82Accordingly, I find that the applicant is not entitled to $2,460.00 for a chronic pain assessment dated December 29, 2021, because on a balance of probabilities it is not reasonable or necessary.
83I further find that the respondent’s denial letter dated February 3, 2022, is compliant with s.38(8). The assessment plan is dated December 29, 2021; however, it was submitted to the respondent on January 20, 2022, and denied February 3, 2022, which is 10 business days from the receipt of the OCF-18, therefore in accordance with s.38(8).
84I find that the remainder of the denial notice is compliant with s.38(8) as the respondent again attached the report of Dr. Ko that it relied upon for the medical reasons for the denial, which I find is more than sufficient medical reasons.
85I find on a balance of probabilities that the chronic pain assessment dated December 29, 2021, for $2,460.00 is not reasonable or necessary. I further find on a balance of probabilities that the respondent’s denial letter is in accordance with s.38(8) because it was sent to the applicant within the 10-business day requirement under the Schedule.
The respondent sought costs from the applicant.
86I find that the applicant is not liable to pay costs to the respondent in the amount of $500.00.
87The respondent submits that the applicant has acted unreasonably, frivolously, vexatiously and in bad faith because the applicant withdrew a previous application a day following the due date of his written submissions and resubmitted the exact application.
88The applicant in his reply submissions argues that this application is not a repetition from his first claim, as it raised new issues that were not included in the original application and that filing the second application ensures that all issues are heard together, thereby avoiding multiple hearings to the benefit of all parties including the Tribunal.
89I find that the respondent is not entitled to costs from the applicant because although the respondent does reference this application being brought forth shortly after the previous one was withdrawn, the respondent did not provide the Tribunal with evidence to support its argument that this application is identical to the one previously withdrawn by the applicant.
90I find on a balance of probabilities that the applicant is not liable to pay costs in the amount of $500.00 to the respondent.
Interest
91Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.
Award
92The 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.
93The applicant submits that the respondent failed to deliver proper notices and therefore denied the OCF-18’s in dispute without lawful reasons. He argues that s.38(8) came into effect on September 1, 2020, and as a sophisticated insurer the respondent must have a duty of utmost good faith in its obligations. He submits that 15 years after the enactment of s.38(8) an award is warranted to send a strong message for its noncompliance.
94The respondent argues that the applicant has not provided compelling evidence that the respondent’s actions were excessive, imprudent, stubborn, inflexible, unyielding or immoderate to warrant a special award. It argues that it diligently reviewed all evidence conducted insurer examinations and clearly articulated reasons for its denials, which demonstrate reasonable and good faith actions.
95I find that the applicant is not entitled to an award because the respondent did not unreasonably withhold any of the benefits in dispute because they are not reasonable and necessary and because the respondent’s denial letters are in accordance with s.38(8).
ORDER
96It is ordered that:
i. The disputed treatment and assessments are not reasonable and necessary.
ii. The respondent’s denial letters are in accordance with s.38(8) of the Schedule.
iii. The applicant is not liable to pay costs to the respondent.
iv. The applicant is not entitled to an award.
Released: November 28, 2025
__________________________
John Mazzilli
Adjudicator