Sinnarajah v. TD General Insurance Company, 2025 CanLII 15945

Sinnarajah v. TD General Insurance Company, 2025 CanLII 15945

Citation: Sinnarajah v. TD General Insurance Company, 2025 ONLAT 23-004551/AABS

Licence Appeal Tribunal File Number: 23-004551/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:

Indrani Sinnarajah

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Jeremy Magence, Counsel Angela Chui, Paralegal

For the Respondent: Anca Zgardau, Counsel

HEARD: By way of written submissions

OVERVIEW

1Indrani Sinnarajah, the applicant, was involved in an automobile accident on April 30, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

[2] The issues in dispute are: i. Is the applicant entitled to $2,979.88 for chiropractic services proposed by Active Healthcare Management in a treatment plan dated September 11, 2019? ii. Is the applicant entitled to $2,854.39 for chiropractic services proposed by Active Healthcare Management in a treatment plan dated October 23, 2019? iii. Is the applicant entitled to $2,979.98 for physiotherapy services proposed by Active Healthcare Management in a treatment plan dated December 4, 2019? iv. Is the applicant entitled to $2,876.89 for physiotherapy services proposed by Active Healthcare Management in a treatment plan dated February 19, 2020? v. Is the applicant entitled to $6,000.00 ($17,967.00 less $11,967.00 approved) for a catastrophic impairment assessment, proposed by Deena Rogozinsky in a treatment plan dated January 31, 2023? vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant? vii. Is the applicant entitled to interest on any overdue payment of benefits?

3I note that issue (v) in dispute is written above as it was set out in the Case Conference Report and Order of December 19, 2023 (“CCRO”), and as it was listed by the parties in their submissions. Although the applicant made submissions that the respondent should have paid $12,967.00 as only $5,000.00 is in dispute, which I address further below, neither party has directed me to any evidence of the total amount that was approved or paid including applicable H.S.T. I have accordingly left the wording of the issue the same as it was set out in the CCRO and the parties’ submissions.

RESULT

4In accordance with s. 38(11) of the Schedule, the applicant is entitled to payment for the treatment she incurred at Active Healthcare Management on December 18, 2019 only, once properly invoiced, plus interest.

5The applicant is not entitled to the remainder of the treatment plans in dispute for physiotherapy and chiropractic services.

6The applicant is entitled to $2,000.00 for a psychological assessment for criterion 8, plus applicable H.S.T. and interest. She is not entitled to the remaining amounts in dispute with respect to the treatment plan for catastrophic assessments.

7The respondent is not liable to pay an award.

ANALYSIS

8I find that the applicant is entitled to payment for the treatment she incurred at Active Healthcare Management on December 18, 2019 only, once properly invoiced. Otherwise, she is not entitled to the remainder of the treatment plans for chiropractic and physiotherapy services in dispute.

9To 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.

10The treatment plans for therapy in dispute are similar to each other, each proposing an assessment, exercise, chiropractic treatment, stimulation, physiotherapy, and massage therapy, although the number of proposed sessions for each modality varies slightly depending on the plan. All of the treatment plans identify the goals of pain reduction, increased range of motion, increase in strength, and return to activities of normal living. Each treatment plan also indicated that the applicant’s symptoms improved after treatment, but that the improvement was mild. However, there is no indication in the treatment plans as to the degree of improvement, level of symptom relief, or how long the improvement or relief lasted. Considering this lack of information, I am not persuaded by the treatment plans alone that further treatment is warranted without compelling, corroborating evidence.

11Despite the applicant providing attendance sheets from Active Healthcare Management showing that she attended regularly from September 2019 to March 2020, she has not provided me with clinical notes from Active Healthcare Management to show that the treatment provided was beneficial or to what degree.

12Further, the records from the applicant’s family physician, Dr. Manivannan Selvananthan, do not include any recommendation for facility-based physical treatment as a result of the accident. In fact, based on the clinical notes and records before me which do not go past August 13, 2021, the applicant never mentioned the accident to Dr. Selvananthan.

13There is one accident-related record from William Osler Hospital included in Dr. Selvananthan’s notes. It relates to a CT scan the applicant underwent of her head on May 1, 2019, which showed soft tissue swelling and a hematoma but no sequelae of trauma internally. There are no other records from William Osler Hospital before me, and there is no evidence that the applicant visited Dr. Selvananthan about this. There is also a record from October 27, 2020, which indicates that the applicant complained of a sudden onset of left and right knee pain for three days. The applicant had bilateral knee replacements and knee pain prior to the accident. There is no indication in Dr. Selvananthan’s records that this incident of knee pain was related to the accident. In any event, while Dr. Selvananthan made recommendations for this pain including rest, medication, and the use of ice and heat, she did not recommend facility-based physical treatment. Otherwise, according to the records before me, the applicant did not complain of pain or any physical difficulties to Dr. Selvananthan after the accident.

14Aside from the treatment plans themselves, the only evidence before me that further facility-based physical treatment was recommended is located in a report from Dr. Tajedin Getahun, orthopaedic surgeon, from a catastrophic impairment assessment on March 28, 2024. The applicant reported to Dr. Getahun that she continues to attend therapy and noted transient improvement in her symptoms with treatments provided. No details were provided as to what “transient improvement” means, or what kind of treatment she was receiving. Dr. Getahun recommended, without further elaboration, that the applicant receive physiotherapy and chiropractic interventions in a multidisciplinary supervised setting. He did not explain what degree of improvement she could expect almost five years after the accident. I do not find this recommendation persuasive in the absence of further information or elaboration.

15The applicant argues that the treatment plans were all submitted less than 10 months after the accident, and given her advanced age and pre-existing medical conditions, this was well within her reasonably expected recovery period. While it is certainly possible for a person’s age and pre-existing medical conditions to lengthen their expected recovery period, I am not convinced by the evidence before me that this was true in the applicant’s case. There is simply not enough evidence of the impact of the treatment that she received to persuade me that further similar treatment was warranted.

16The applicant underwent two assessments with s. 44 general practitioner, Dr. Irina Safir. During an assessment on November 27, 2019, the applicant told Dr. Safir that she began physical treatment in May 2019 and reported a 30% improvement in her pain since the accident. Dr. Safir opined that further facility-based treatment was not reasonable and necessary due to her limited response to treatment in the seven months since the accident. On July 13, 2022, Dr. Safir assessed the applicant again, and her pain had reportedly improved by 50% at that point. The applicant advised Dr. Safir that she stopped receiving treatment in 2019 due to the Covid-19 pandemic (although the records before me indicate that the treatment stopped in March 2020 which appears to align with the timing of the pandemic). Dr. Safir again opined that further treatment would likely provide little benefit to assist in her recovery or treatment of pain.

17The applicant submits that Dr. Safir assumes that her symptoms plateaued when that was not the case, given her reported change from 30% to 50% improvement. However, there is no compelling evidence before me that the applicant’s condition improved because of the facility-based treatment she attended, as opposed to improvement over time or the self-directed exercises she reportedly engaged in on a daily basis.

18The applicant also submits that Dr. Safir’s finding that she suffered from a complete inability to carry on a normal life is inconsistent with her finding that further treatment was not reasonable and necessary. I disagree. Whether particular modalities of treatment are effective and whether the cost of treatment is reasonable in furthering its goals are completely separate issues from whether someone is unable to perform their pre-accident activities.

19Even if I place no weight on Dr. Safir’s opinion, there is still a lack of compelling evidence before me in favour of the applicant’s position. I find that the applicant has not met her onus to prove, on a balance of probabilities, that the treatment plans in dispute are reasonable and necessary.

20However, the applicant also argues that the treatment plan dated October 23, 2019, was denied more than 10 business days after it was submitted, and it is therefore payable in full by virtue of s. 38(11).

21Section 38(8) of the Schedule states that an insurer shall give a denial notice to an insured within 10 business days after receipt of a treatment plan. If an insurer fails to provide the denial notice, under s. 38(11)2, it is required to pay for all goods and services described in the treatment plan that relate to the period starting on the 11th business day after the treatment plan was received by the insurer and ending on the day the insurer gives a proper denial notice.

22Although the treatment plan is dated October 23, 2019, it was not submitted to the respondent until December 2, 2019. The respondent sent a letter to the applicant dated December 16, 2019, denying the treatment plan. I agree with the applicant that the wording of s. 38(8), specifically the words “shall give”, means that the effective date of the denial is the date that the denial letter is received, or deemed to have been received, by the applicant. She argues that Rule 6.2(b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure (“LAT Rules”) states that where a document is served by a party, receipt is deemed to have occurred when served or sent by regular mail on the fifth day after the postmark date, not including holidays. As no postmark date was provided on this letter, the applicant submits that the next best evidence is the date-stamp on the letter by the office of the applicant’s representative indicating that it was received on December 19, 2019. This would mean that the letter was received three business days late.

23While the LAT Rules govern Tribunal proceedings and are not applicable in this context, s. 64(18) of the Schedule states that, in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document is mailed. I accept based on the evidence before me that the letter was received on December 19, 2019.

24However, I do not accept the applicant’s argument that the entirety of the treatment plan is payable as a result of the denial letter being three days late. I am bound by the Divisional Court decision in Aviva General Insurance v. Catic, 2022 ONSC 6000. The Court found that s. 38(11)2 compels the insurer to pay for all items in the treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. The Court stated that had the legislature intended that failure to provide timely notice would oblige insurers to pay the entirety of the goods and services set out in a treatment plan, it would have clarified such an intention in s. 38(11); instead, the obligation is limited to items “that relate to” a defined period, demonstrating the legislature’s intention to limit any mandatory requirement to pay expenses actually incurred during the “shall-pay” period.

25I have reviewed the sign-in sheet from Active Healthcare Management and it appears that between December 16, 2019, and December 19, 2019, the applicant attended the clinic one time, on December 18, 2019. There are no details before me regarding how much was incurred, however I find that this is sufficient evidence that some treatment was incurred after the deadline and prior to the notice letter being received.

26I accordingly find that the applicant is only entitled to payment for the treatment she incurred at Active Healthcare Management on December 18, 2019, once properly invoiced.

27I find that the applicant is entitled to $2,000.00 for a psychological assessment for criterion 8, plus applicable H.S.T. She is not entitled to the remaining amounts in dispute with respect to this treatment plan.

[28] The respondent partially approved the following elements of the treatment plan for catastrophic assessments: i. Completion of the OCF-18 - $200.00 ii. Completion of the OCF-19 - $200.00 iii. Occupational therapy activities of daily living assessment - $2,000.00 iv. Occupational therapy situational assessment - $2,000.00 v. Psychological assessment for criterion 7 - $2,000.00 vi. Orthopaedic assessment - $2,000.00 vii. Executive summary report - $2,000.00 viii. Transportation - $500.00

[29] The respondent denied the following components of the treatment plan, arguing that they were a duplication of services: i. Occupational therapist interviews with individuals who have knowledge of the applicant and treatment providers - $1,000.00 ii. Psychological assessment for criterion 8 - $2,000.00 iii. File review and imaging review - $2,000.00

30Section 25(5) of the Schedule stipulates that an insurer shall not pay more than $2,000.00 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it. Under FSRA’s Cost of Assessments and Examinations Guideline (“Guideline”), an assessment or examination is a clinical evaluation or appraisal of a claimant’s health status.

31With respect to the occupational therapist interviews, the applicant does not explain in her submissions why this item should be paid separately instead of being included as part of the cost of the two occupational therapy assessments. I find that in the absence of any argument or compelling evidence, the applicant has not met her burden in proving on a balance of probabilities that this item is reasonable and necessary.

32Similarly, the applicant has not made an argument to rationalize the payment of $2,000.00 for a file review. A single “medical document review” page was included in the multidisciplinary catastrophic report. It pulled one quote from each of two reports, and pasted in a screenshot from an MRI report. It then lists a number of other documents but does not include a summary of the contents of those documents. The applicant has not explained why this was required, why the cost of a separate file review is not a duplication of services, or how the cost of $2,000.00 was justified. I accordingly find that the applicant has not met her burden in proving on a balance of probabilities that this item is reasonable and necessary.

33The applicant submits that criteria 7 and 8 each require separate psychological assessments, as they involve different rating scales and separate determinations of impairment. I note that the respondent’s submissions did not address the applicant’s entitlement to the criterion 8 assessment in particular.

34Dr. Leon Steiner, psychologist, utilized two different instruments to evaluate whether the applicant was catastrophically impaired under criteria 7 or 8. Criterion 7 is assessed using the 6th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and criterion 8 is evaluated using the 4th edition. I find that this involved two different clinical evaluations and appraisals of the applicant’s condition, which in my view fits squarely within the definition of “assessment” as contemplated by the Guideline. I find that it was reasonable and necessary for the applicant to have undergone assessments to evaluate both criteria, and that the two assessments were not a duplication of services. I accordingly find that the applicant is entitled to $2,000.00 plus applicable H.S.T. for the psychological assessment for criterion 8.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is accordingly applicable on the benefits that I have found are payable.

Award

36The 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.

37The applicant’s submissions do not contain a clear argument as to why the respondent is liable to pay an award. The only reference to unreasonably withheld benefits is the applicant’s submission that the cost of the occupational therapy interviews was $1,000.00 and not $2,000.00 as indicated by the respondent in its denial letter. She submits that the total amount of the treatment plan denied by the respondent is $5,000.00 and not $6,000.00, and therefore the respondent should have paid $12,967.00, not $11,967.00. However, the applicant has not provided me with any evidence of how much the respondent actually paid for the approved items of the treatment plan. I find that the applicant has not established that the respondent unreasonably withheld payment for the approved treatment, and she has not established that the benefits that I have found to be payable were unreasonably withheld. I accordingly find that the respondent is not liable to pay an award.

ORDER

38In accordance with s. 38(11) of the Schedule, the applicant is entitled to payment for the treatment she incurred at Active Healthcare Management on December 18, 2019 only, once properly invoiced, plus interest.

39The applicant is not entitled to the remainder of the treatment plans in dispute for physiotherapy and chiropractic services.

40The applicant is entitled to $2,000.00 for a psychological assessment for criterion 8, plus applicable H.S.T. and interest. She is not entitled to the remaining amounts in dispute with respect to the treatment plan for catastrophic assessments.

41The respondent is not liable to pay an award.