Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-005588/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:
Will Navarro
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Olga Poznyakova, Paralegal
For the Respondent: Thomas Long, Counsel
HEARD: By way of written submissions
OVERVIEW
1Will Navarro, the applicant, was involved in an automobile accident on January 31, 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, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
a) Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 4, 2022, to January 31, 2024?
b) Is the applicant entitled to $3,342.39 for physiotherapy services, proposed by Prime Health Care in a treatment plan submitted on April 4, 2022?
c) Is the applicant entitled to $1,836.16 for physiotherapy services, proposed by Prime Health Care in a treatment plan submitted on July 6, 2022?
d) Is the applicant entitled to $1,563.72 for chiropractic services, proposed by Prime Health Care in a treatment plan submitted on August 26, 2022?
e) Is the applicant entitled to $1,606.16 for chiropractic services, proposed by Prime Health Care in a treatment plan submitted on August 29, 2022?
f) Is the applicant entitled to $8,882.79 for chronic pain treatment, proposed by Prime Health Care in a treatment plan submitted on December 5, 2022?
g) Is the applicant entitled to $2,200.00 for an in-home assessment, proposed by Alcat Assessment Inc. in a treatment plan submitted on August 25, 2022?
h) Is the applicant entitled to $2,000.00 for a functional ability evaluation, proposed by Prime Health Care in a treatment plan submitted on July 12, 2022?
i) Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Prime Health Care in a treatment plan submitted on September 20, 2022?
j) Is the applicant entitled to $1,745.34 ($3,641.09 less $1,895.75 approved) for psychological services, proposed by Prime Health Care in a treatment plan submitted on October 13, 2022?
k) Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
l) Is the applicant entitled to interest on any overdue payment of benefits?
m) Is the applicant entitled to costs?
RESULT
3The applicant is not entitled to a non-earner benefit, nor is it payable pursuant to s. 36(6).
4Out of the $3,342.39 in dispute for physiotherapy services, proposed by Prime Health Care in a treatment plan submitted on April 4, 2022, $2.44 is payable with respect to this treatment plan as a result of s. 38(11). The applicant is also entitled to $23.99 for the analgesic cream and $3,052.76 for the physical treatment plus applicable H.S.T., less the amount already paid (or to be paid, in the case of the $2.44) for those items by the respondent. The applicant is also entitled to applicable interest.
5The applicant is entitled to the following treatment plans, plus applicable interest:
a) $1,836.16 for physiotherapy services, proposed by Prime Health Care in a treatment plan submitted on July 6, 2022;
b) $2,200.00 for an in-home assessment, proposed by Alcat Assessment Inc. in a treatment plan submitted on August 25, 2022; and
c) $2,200.00 for a chronic pain assessment, proposed by Prime Health Care in a treatment plan submitted on September 20, 2022.
6The applicant is not entitled to the remaining treatment plans in dispute, nor are they payable pursuant to s. 38(11).
7The respondent is not liable to pay an award.
8The applicant is entitled to costs from the respondent in the amount of $500.00.
PROCEDURAL ISSUES
9The applicant has requested that I draw an adverse inference from the respondent’s failure to comply with the production orders outlined in the Case Conference Report and Order of January 12, 2024 (“CCRO”), or assign no weight to the respondent’s evidence. The respondent was ordered to produce a summary of payments made to date, log notes from the date of loss up to the date of the Tribunal application, copies of all correspondence by the respondent to third parties regarding the applicant’s claim, and copies of any clinical notes and records from all insurance assessment centres within 30 days of the CCRO. On April 24, 2024, the applicant brought a motion requesting a second order requiring the respondent to provide the productions as it had not done so yet. Although the Tribunal declined to make that order because it would be redundant, it noted that the respondent fails to comply with the production order at its peril. The applicant argues that he cannot properly rebut the s. 44 reports due to the respondent’s failure to provide these productions.
10The respondent has not explained why it did not comply with the CCRO and was fairly warned by the Tribunal at the motion of possible consequences of not complying. It did not make submissions in response to the applicant’s request. I agree with the applicant that the records from the assessment centre are relevant to his ability to rebut the s. 44 reports. While I am not prepared to draw an adverse inference or assign no weight to the evidence solely because these particular productions were not provided, I am prepared to assign less weight to the s. 44 reports.
ANALYSIS
Non-Earner Benefit
11I find that the applicant is not entitled to an NEB.
12Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
13Under s. 36(4) of the Schedule, within 10 business days after an insurer receives an application and completed disability certificate, it must:
a) Pay the specified benefit;
b) Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c) Send a request to the applicant under s. 33(1) or (2).
14Pursuant to s. 36(5), if an insurer sends a request pursuant to s. 33(1) or (2), it shall, within 10 business days after the applicant complies with the request, pay the specified benefit or give the applicant a notice described in s. 36(4)(b).
15Section 36(6) states that if the insurer fails to comply with s. 36(4), it shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending on the day the insurer gives notice compliant with s. 36(4).
16The applicant submits that none of the denial notices provided by the respondent were compliant with s. 36(4) and the benefit is accordingly payable from May 6, 2022, to January 31, 2024. The respondent disagrees.
17The applicant submitted an OCF-1 dated April 1, 2022, indicating that he was employed and working at the time of the accident, his injuries did not prevent him from working, and he was not able to return to his normal activities following the accident. He subsequently submitted an OCF-3 on April 4, 2022, which indicated that although he could return to work on modified duties, he was continuously prevented from engaging in substantially all of his pre-accident activities of daily living.
18On April 6, 2022, the respondent acknowledged receipt of the OCF-1 and OCF-3, and advised that as the OCF-3 indicated that he qualified for an income replacement benefit, he was not eligible for a NEB. The respondent requested a number of documents in order to determine if he was eligible for an income replacement benefit and/or calculate the benefit, including pay stubs, an OCF-2, and an OCF-10.
19On May 6, 2022, the applicant submitted an OCF-10 and elected to receive NEBs. On May 13, 2022, the respondent advised that it received the OCF-10 but required more information to determine if he was eligible for a NEB. It requested an OCF-5 or copy of his doctor’s clinical notes and records, and that he attend an insurer’s examination to address his initial entitlement to the benefit. The applicant provided the clinical notes and records on June 7, 2022. In a letter dated June 15, 2022, under a section explaining the details of the s. 44 assessments, the respondent noted that it did not believe the applicant was entitled to a NEB because the OCF-3 noted injuries and sequelae that would not result in a complete inability to carry on a normal life, and because he had returned to work and therefore would not meet the disability test of a complete inability to carry on a normal life.
20The benefit was denied again on August 10, 2022, as a result of the s. 44 assessments, and the reports were attached to the letter. The letter indicated that, according to the assessors, the applicant demonstrated sufficient mobility, range of motion, strength, and cognitive and psychosocial functioning to resume his normal activities of daily living such as personal care and housekeeping, most leisure activities and employment activities. It also indicated that the assessors concluded that he did not suffer a complete inability to carry on a normal life, and it would not consider paying NEBs.
21I find that the letters of April 6, 2022, and May 13, 2022, were compliant with s. 36(4). The respondent requested that the applicant provide more information to determine if he was eligible first for an income replacement benefit, and then a NEB after the applicant made the election. The respondent was entitled to do so under s. 36(4)(c) and s. 33(1). Although the applicant argues that this request was not made pursuant to s. 33, he has not directed me to any authority that suggests the respondent must specifically reference s. 33 in its letter in order for it to be a valid request under that section. In addition, the applicant has not provided any authority for his assertion that the respondent was required to include consequences in the letter if he failed to comply with the request. The applicant also argues that s. 36(5) was not referred to in the letters, but again, he has not directed me to any authority suggesting that was a requirement for compliance with s. 36(4) or (5). Further, I disagree with the applicant’s assertion that these requests were merely provided in response to his application for accident benefits and did not constitute requests for information pursuant to s. 33. The requests for information were included in a chart identifying the specific benefit they were being requested for, and they were also immediately preceded by the respondent advising that the requests were being made to determine the applicant’s eligibility for the specific benefit. While the applicant may be correct that these letters were not compliant with s. 36(4)(b), I find that they were compliant with s. 36(4)(c) and thus did not have to also meet the requirements of s. 36(4)(b).
22The applicant relies on Wu v. Aviva General Insurance, 2023 CanLII 50592 (“Wu”), where the Tribunal held that a generic form letter was not sufficient to satisfy the wording of s. 36(4)(b). The applicant argues that the June 15, 2022, letter uses identical language as the one described in that case. However, the reasons provided in the letter were entirely different from the ones in Wu, so I find that case distinguishable from the one before me. Here, the respondent explained that it believed the applicant’s ability to work meant he would not meet the disability test of a complete inability to carry on a normal life. In my view, that is a specific reason and does not amount to a generic form letter.
23I disagree with the applicant that medical reasons were not provided. The Schedule does not define what a constitutes a “medical reason”. Although I am not bound by other Tribunal decisions, I am guided by the following explanation in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (“M.B.”), which was cited in Wu: “an insurer’s ‘medical and any other reasons’ should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires”. I am satisfied that the reference to the applicant’s functional abilities, specifically his ability to work, and the respondent’s belief that this would preclude him from meeting the NEB test, constituted a medical reason as it included specific details about the applicant’s condition and its relation to the benefit at issue.
24Finally, I do not accept the applicant’s suggestion that the respondent had to include in its notice information regarding the medical documentation received on June 7, 2022. There is no requirement in s. 36(4) for the respondent to refer to the specific medical documentation provided after a s. 33 request.
25I accordingly find that the letter of June 15, 2022, was compliant with s. 36(4).
26I note that the applicant does not argue that the letter of August 10, 2022, was noncompliant, despite claiming that the benefit is payable well past that date. In any event, I find that it was compliant with s. 36(4) as it constituted a clear denial and provided medical reasons, specifically the opinions of the s. 44 assessors. As the respondent did not breach s. 36(4) or (5) in any of its letters, I find that the applicant is not entitled to the benefit by operation of s. 36(6).
27I also find that the applicant has not proven, on a balance of probabilities, that he suffers a complete inability to carry on a normal life, and therefore he is not entitled to the NEB.
28The applicant relies on a report from Ashok Jain, occupational therapist, from an assessment on October 7, 2022. He concluded that the applicant was substantially unable to manage his normal life activities at the pre-accident level, and therefore should be entitled to a NEB. Mr. Jain indicated that the applicant had constant moderate pain in his neck, trapezius, upper back, lower back, and pelvis bilaterally. He had pain in both shoulders and upper arms on functional use, and moderate pain in his hip, thighs, both knees, and lower legs. He often had headaches. He also had numbness in his wrists and hands. Although he was employed full time as an apprentice auto mechanic, Mr. Jain noted that he was primarily working as a helper. He was limited with working underneath a car as it was difficult for him to look up and down for prolonged periods, and could not lift and carry heavy items such as tires. He had difficulty with his memory and recalling names and events. Mr. Jain also stated that the applicant no longer socializes with his friends, no longer plays sports, has difficulty managing some of his personal care tasks, and is only able to assist with light housework.
29I am unable to reconcile the difficulties noted by Mr. Jain with much of the other evidence before me. Prior to the assessment, the applicant visited his family physician, Dr. Black, on four occasions as a result of the accident. He initially complained on March 22, 2022, of pain in his lower back, paresthesia to his right knee, and anxiety with driving. By May 13, 2022, he reported that he felt his lower back was fully healed, but he still had some discomfort in his upper back that had improved about 60%. He was managing well at work for the most part. He was not taking any analgesia for pain and had full range of motion in his neck and back. On July 29, 2022, he told Dr. Black that his lower and middle back were back to normal, although his upper back around the shoulders could still be sore. He also felt soreness with lifting tires at work. He was still not taking any analgesia, and denied any weakness or numbness. Finally, on September 6, 2022, he advised Dr. Black that his mid back remained sore in certain positions, although most of the time it was not sore. He had full range of motion in his back and was slowly improving.
30Similarly, Dr. Jacqueline Brunshaw, psychologist, whose report the applicant also relies on, conducted an assessment on September 2, 2022, and noted that he reported pain to his shoulder, upper back, and legs. There was no mention of pain to the other areas reported by Mr. Jain. Further, in contrast to Mr. Jain’s report, the applicant advised that he continues to socialize regularly, and denied any difficulty with his cognitive functioning including recalling information. Dr. Brunshaw also did not describe the applicant’s role at work as a “helper”, instead reporting that he receives assistance when setting up tires or hoisting vehicles. I note that although Dr. Brunshaw indicated that the applicant was unable to engage in many of his pre-accident activities, she did not opine that he was unable to engage in substantially all of these activities, and did not comment on his entitlement to an NEB.
31The applicant also underwent s. 44 assessments with Robert Campos (occupational therapist), Dr. Jacqueline Auguste (orthopaedic surgeon), and Dr. Amena Syed (psychologist) in July 2022. Dr. Auguste and Dr. Syed opined that the applicant did not meet the NEB test, and Mr. Campos did not comment on it. The applicant reported upper and mid back pain as well as bilateral calf pain to Dr. Auguste and Mr. Campos, and advised Mr. Campos that his low back pain had resolved. He advised Mr. Campos that he graduated from a college program in June 2022 with good grades, something that Mr. Jain did not mention. Mr. Campos also noted that the applicant was provided with assistance at work with lifting tires and setting up hoists and test drove cars less often than before, but he still changed tires, changed brakes, changed oil, completed engine jobs, and performed general maintenance. Mr. Campos indicated that the applicant was able to play tennis, and could go on outings and socialize with his friends, just not as often as before. Again, this is different from what Mr. Jain indicated in his report. I note that, although I have placed less weight on these reports, they still add to my skepticism regarding Mr. Jain’s report.
32I am accordingly not persuaded that Mr. Jain’s description of the applicant’s difficulties is accurate, given the disparities in much of the other evidence before me. I assign less weight to his report as a result.
33The applicant also relies on the report of Dr. Grigory Karmy, chronic pain physician, based on an assessment from November 4, 2022. Dr. Karmy diagnosed him with chronic post-traumatic headaches, a possible mild traumatic brain injury with associated persisting symptoms, possible left cervical radiculopathy, chronic mechanical upper and mid back pain, lower back pain, and bilateral calf pain, myofascial pain syndrome, chronic pain syndrome, sleep disorder, and a possible mood disorder. I am at a loss as to how Dr. Karmy diagnosed the applicant with a traumatic brain injury without explaining what symptoms were associated with it or explaining why this diagnosis was appropriate. Further, the applicant denied experiencing headaches during his assessment with Dr. Syed and never reported headaches to Dr. Black. The only other assessor who mentioned headaches was Mr. Jain, whose report I assigned less weight. I do not place much weight on Dr. Karmy’s report given those issues and the stark difference between Dr. Black’s notes and the severity and breadth of his diagnoses. In any event, Dr. Karmy’s report does not provide much assistance in evaluating whether the applicant meets the NEB test, as in my view it lacked detail regarding the extent of any difficulties with his pre-accident activities and he did not comment on the NEB test.
34I accept that the applicant likely continued to experience difficulties with some of his daily activities as a result of the accident. However, he continued to work full time with few restrictions, completed his college diploma without reported difficulty, and was independent in his self-care. I find that this does not amount to a continuous impairment with respect to substantially all of his activities. Further, there are no records or reports before me past November 2022, despite the applicant claiming entitlement to the benefit until January 2024. I therefore have no insight into his medical condition for the majority of the time that he is claiming entitlement to the benefit. I find that the applicant has not proven on a balance of probabilities that he is continuously prevented from engaging in substantially all of his pre-accident activities. He is accordingly not entitled to an NEB.
35To 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.
36In addition to arguing that the treatment plans are reasonable and necessary, the applicant also submits that some of them are payable as a result of s. 38(11) of the Schedule.
37Section 38(8) 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.
$3,342.39 for physiotherapy services, proposed by Prime Health Care in a treatment plan submitted on April 4, 2022 (issue (b))
38I find that $2.44 is payable with respect to this treatment plan as a result of s. 38(11). I also find that the applicant is entitled to $23.99 for the analgesic cream and $3,052.76 for the treatment plus applicable H.S.T., less the amount already paid (or to be paid, in the case of the $2.44) for those items by the respondent.
39The applicant argues that this treatment plan was submitted to the respondent on April 4, 2022, but no denial notice was ever received, and therefore the consequences of s. 38(11) are triggered. The respondent submits that it provided a notice letter on July 28, 2022, advising that a s. 44 assessment was warranted, and the treatment plan was subsequently denied on August 10, 2022, as a result of Dr. Auguste’s assessment.
40The letter dated July 28, 2022, indicates that the treatment plan recommends similar treatment that was outlined in a previous treatment plan with little reported progress towards the goals indicated therein. I find that this amounted to a medical reason in accordance with the requirements of s. 38(8), as it related to the applicant’s condition and the efficacy of treatment. The letter of August 10, 2022, identified the treatment plan, indicated that it was not payable, and provided the opinion of Dr. Auguste as the reason why. I find that this letter was also compliant with s. 38(8) as it provided a clear denial and medical reasons.
41I 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.
42Since the notice letters were provided more than 10 days after the treatment plan was submitted, the applicant would ordinarily be entitled to the amount of the incurred treatment until July 28, 2022. However, the respondent submits that it already paid $750.00 for services rendered from March 11, 2022, to June 23, 2022. The applicant provided an account from Prime Health Care which indicates that an invoice was sent in the amount of $752.44 for this time period, and that the respondent paid $750.00, leaving $2.44 outstanding.
43The respondent did not explain why the amount of $2.44 was not paid, but argues that the applicant has not provided any evidence detailing the services that account for the $2.44 balance such as an invoice. Despite not having a copy of the specific invoice, I am satisfied based on the account summary before me that $2.44 was incurred with respect to this treatment plan and was not paid for by the respondent. I accordingly find that the amount is payable.
44However, the applicant has not provided any evidence that he incurred more treatment with respect to this treatment plan prior to July 28, 2022, and as such the remainder of the treatment plan is not payable as a result of s. 38(11).
45The treatment plan proposed an initial assessment, physiotherapy, exercise, acupuncture, massage therapy, osteopathy, chiropractic treatments, hot/cold gel packs, analgesic cream, back support, cervical pillow, and personal protection supplies (face mask, gloves, hand sanitizer, use of towels, and sterilization of treatment area and equipment).
46I find that the applicant is entitled to the amount for analgesic cream, as this was recommended by Dr. Black. Additionally, around the time this treatment plan was submitted, the applicant reported to Dr. Black that the treatment provided was helping him improve, and Dr. Black encouraged him to continue with therapy. Although the respondent relies on Dr. Auguste’s opinion that the applicant had reached maximum medical improvement with respect to facility-based treatments, I am more persuaded by Dr. Black’s opinion as he provided treatment to the applicant on an ongoing basis, whereas Dr. Auguste only assessed him once. I have also afforded less weight to Dr. Auguste’s report as indicated above. Further, this treatment plan was submitted only a few months after the accident, and given the applicant’s reported improvement with treatment, I find that it was reasonable to continue with it around the time the treatment plan was submitted.
47However, there is no compelling explanation in the treatment plan itself or the rest of the evidence before me for the hot/cold gel packs, back support, or cervical pillow. As such, I find that the applicant is not entitled to those items. Further, The Professional Services Guideline, Superintendent’s Guideline No. 03/14, indicates that insurers are not liable for any administration or other costs, overhead, fees, expenses, charges, or surcharges that would have the result of increasing the effective hourly rates of the treatment providers. The personal protection supplies indicated in the treatment plan are, in my view, overhead costs. I find that, given the wording of the Guideline and in the absence of an argument by the applicant in support of this expense, he is not entitled to it.
48Neither party has provided me with an invoice indicating what items have already been paid by the respondent. I find that the applicant is entitled to $23.99 for the analgesic cream and $3,052.76 for the treatment plus applicable H.S.T., less the amount already paid for those items by the respondent.
49Finally, I note that the respondent submits that it is entitled to deduct the portion of the treatment plan that the applicant has available to him through collateral benefits in accordance with s. 47(2) of the Schedule, and it provided me with evidence that he has access to collateral benefits through Manulife. The applicant did not respond to this submission in particular. I find that, once the treatment is incurred, the respondent is entitled to deduct the amount available to the applicant for this treatment through his collateral benefits.
$1,836.16 for physiotherapy services, proposed by Prime Health Care in a treatment plan submitted on July 6, 2022 (issue (c))
50I find that the applicant is entitled to this treatment plan.
51The treatment plan proposed massage therapy, passive and active physiotherapy, osteopathy, acupuncture, and chiropractic treatment. The additional comments attached to the treatment plan indicate that the applicant had seen significant improvement, but had not yet reached maximum medical recovery. On July 29, 2022, the applicant advised Dr. Black that he felt that his weekly treatments were helping, that he was gradually improving, but that his upper back was still sore. Dr. Black recommended that he continue physiotherapy. I am not compelled by Dr. Auguste’s opinion with respect to this treatment plan for the same reasons as above. I am persuaded that it was reasonable around the time the treatment plan was submitted for the applicant to continue with his treatment regimen given his success with it so far. I accordingly find that the applicant has proven, on a balance of probabilities, that this treatment plan is reasonable and necessary.
$1,563.72 for chiropractic services, proposed by Prime Health Care in a treatment plan submitted on August 26, 2022 (issue (d))
52I find that the applicant is not entitled to this treatment plan, and it is not payable pursuant to s. 38(11).
53This treatment plan proposes 10 sessions of shockwave therapy to be completed by a chiropractor. The applicant has not made an argument as to why this type of therapy was warranted. Aside from the treatment plan itself, the applicant has not pointed to other evidence of healthcare providers that recommended shockwave therapy. I am not persuaded by the treatment plan alone without corroborating evidence that this type of treatment is warranted. I accordingly find that he has not met his burden of proving, on a balance of probabilities, that this treatment plan is reasonable and necessary.
54The applicant also argues that this treatment plan is payable pursuant to s. 38(11) because no denial notice was received in accordance with s. 38(8). I have reviewed the denial notice, dated September 8, 2022, and agree with the respondent that it complied with s. 38(8) and therefore it is not payable pursuant to s. 38(11). It identified the amount of the treatment plan and stated that none of it was payable. It also indicated that the denial was due to Dr. Auguste’s opinion that further physical treatment was not required, and therefore, in my view, medical reasons were provided.
55I am not persuaded by the applicant’s argument that the respondent referred to a s. 44 report that did not address this particular treatment plan, the report was not attached to the notice letter, and it was not provided to the clinic that completed the treatment plan in accordance with s. 38(13). Firstly, for the purpose of compliance with s. 38(8), there is no requirement that a treatment plan be re-assessed pursuant to s. 44. It only requires that medical reasons be provided, and there is no requirement that those reasons be correct. Secondly, the report was provided to the applicant on August 10, 2022, and he has not directed me to any authority that suggests the report must be re-attached where he is already in possession of a copy. Finally, although s. 38(13) requires an insurer to provide a copy of the report to the health professional who prepared the treatment plan, there is no shall-pay provision associated with that subsection. In my view, treatment plans are not payable as a result of a breach of s. 38(13) alone.
56The applicant also submits that the treatment plan was described as “chiropractic treatment”, and therefore was incorrectly identified. I find that since the shockwave therapy was to be provided by a chiropractor, and the cost of the treatment plan was clearly indicated, it would have been clear to an unsophisticated person what treatment plan the respondent was denying. In my view, there was no requirement in this particular situation for the respondent to specifically identify the treatment as shockwave therapy in order for the denial notice to be compliant with s. 38(8).
$1,606.16 for chiropractic services, proposed by Prime Health Care in a treatment plan submitted on August 29, 2022 (issue (e))
57I find that the applicant is not entitled to this treatment plan, and it is not payable as a result of s. 38(11).
58The treatment plan proposed sessions of massage therapy, acupuncture, active and passive physiotherapy, chiropractic treatment, and osteopathy. The goals of the treatment plan were pain reduction, increased range of motion, increase in strength, restoration of full spine flexibility, and a return to activities of normal living.
59I note that, around the time that this treatment plan was submitted, there was no indication in the notes from Prime Health Care or Dr. Black of the efficacy of this treatment, for example whether the applicant’s pain was relieved after treatment, to what degree, or for how long. Further, although Dr. Black indicated on July 29, 2022, that the applicant felt treatment was helping, he did not make a similar comment on September 6, 2022, and there are no further records from Dr. Black before me. I am accordingly not persuaded by Dr. Black’s recommendation on September 6, 2022, that the applicant continue with treatment. Additionally, as indicated above, I have placed less weight on Dr. Karmy’s report. I find that there is a lack of compelling evidence before me that, at the time this treatment plan was submitted, the treatment the applicant was receiving was providing him with enough of a benefit that the cost of further similar treatment was justified. I accordingly find that the applicant has not met his burden, on a balance of probabilities, to prove that this treatment plan is reasonable and necessary.
60The applicant also submits that this treatment plan is payable as a result of s. 38(11). The denial notice for this treatment plan is the same as the one discussed immediately above, dated September 8, 2022. The cost of this treatment plan and a general description of the services (“chiropractic, massage, acupuncture”) was also identified in the letter, and it indicated that none of the treatment plan was payable as a result of Dr. Auguste’s opinion. I note that the applicant does not take issue with the description of this treatment plan in his submissions, but in any event, in my view it would have been clear to an unsophisticated person what treatment plan the respondent was denying. For the same reasons as above, I find that the letter was compliant with s. 38(8) and is not payable as a result of s. 38(11).
$8,882.79 for chronic pain treatment, proposed by Prime Health Care in a treatment plan submitted on December 5, 2022 (issue (f))
61I find that the applicant is not entitled to this treatment plan, and it is not payable as a result of s. 38(11).
62The treatment plan proposed an initial psychological consultation, consultation by the psychologist with treatment providers, the psychologist’s review of file materials, psychological treatment, a chiropractic initial assessment and review of documentation, chiropractic rehabilitation, a functional exercise program, spinal decompression therapy, acupuncture, massage therapy, a follow-up assessment, and a progress report.
63According to the account summary from Prime Health Care, the respondent approved another treatment plan for psychological treatment on December 7, 2022. The account summary indicates that part of this treatment plan was subsequently incurred, although there are no records from those treatment sessions before me. The applicant has not explained how the proposed psychological treatment in this treatment plan differs from the treatment that was already approved such that it would not be duplicative. Further, he has not provided compelling evidence that psychological treatment is warranted in addition to what has already been approved. Without that information, I find that the applicant has not met his burden to prove, on a balance of probabilities, that the psychological components of this treatment plan are reasonable and necessary.
64With respect to the physical components of the treatment plan, as I have indicated above, there is little evidence before me as to the efficacy of physical treatment, especially around the time this treatment plan was submitted. Further, there are no clinical notes and records from any treatment providers before me past September 2022. In addition to my difficulties with Dr. Karmy’s report, I find that there is a lack of compelling evidence corroborating his recommendations for further physical treatment around the time this treatment plan was submitted. As such, I find that the applicant has not met his burden of proving, on a balance of probabilities, that the rest of this treatment plan is reasonable and necessary.
65The applicant also submits that this treatment plan is payable as a result of s. 38(11). He argues that the denial notice, dated December 7, 2022, did not meet the requirements of the Schedule as it relied on a previous s. 44 report that did not review Dr. Karmy’s report. Further, he argues that the notice did not advise him that the proposed treatment was not reasonable and necessary as a result of the s. 44 assessment.
66The denial notice indicates that the treatment plan for a chronic pain program in the amount of $8,882.72 was not payable, as Dr. Auguste’s opinion was that further physical treatment was not required, a psychological treatment plan was already approved, and no updated clinical notes and records had been received. There is no requirement in s. 38(8) that the medical reasons provided by an insurer be correct in order to avoid the consequences of s. 38(11), and there is no requirement for an insurer to have every treatment plan assessed under s. 44. I find that the respondent complied with s. 38(8) by identifying the treatment plan at issue, providing a clear denial, and advising of medical reasons for the denial. The treatment plan is accordingly not payable as a result of s. 38(11).
$2,200.00 for an in-home assessment, proposed by Alcat Assessment Inc. in a treatment plan submitted on August 25, 2022 (issue (g))
67I find that the applicant is entitled to this treatment plan.
68The treatment plan proposed an in-home assessment with an occupational therapist. The goals of the treatment plan were to compare the applicant’s pre- and post-accident limitations, and return to activities of normal living, pre-accident work activities, and modified work activities. The treatment plan states that the occupational therapist would assess the applicant’s activities and life circumstances in line with his injuries and would assess the degree of pain that prevents him from participating in activities. Despite the denial, the applicant ultimately underwent the assessment with Mr. Jain on October 7, 2022.
69I find that the applicant is entitled to this assessment. He reported consistently to the s. 25 and s. 44 assessors that he was restricted in his ability to complete a number of his pre-accident housekeeping tasks and was receiving assistance at work with some of the heavier tasks. Further, on September 6, 2022, Dr. Black indicated that his mid-back remained sore in certain positions, such as when he raises his hand. For those reasons, I find it likely that the applicant was still experiencing pain, and it affected his ability to function to some degree. I therefore find that it was appropriate at the time the treatment plan was submitted for the applicant to undergo an assessment to determine the extent of his restrictions.
70I accordingly find that the applicant has proven on a balance of probabilities that this treatment plan is reasonable and necessary.
$2,000.00 for a functional ability evaluation, proposed by Prime Health Care in a treatment plan submitted on July 12, 2022 (issue (h))
71I find that the applicant is not entitled to this treatment plan, and it is not payable pursuant to s. 38(11).
72This treatment plan proposes a functional abilities evaluation with an occupational therapist. The goals of the treatment plan are to assess the applicant’s impairments and limitations as they relate to pre-accident levels of workplace and in-home demands, and the functional goal is a return to activities of normal living.
73The applicant does not make a specific argument that this treatment plan in particular is reasonable and necessary and has not explained the difference between this assessment and the one ultimately conducted by Mr. Jain. Both assessments appear to be addressing the applicant’s limitations since the accident, and in the absence of any explanation from the applicant as to how they differ, I find that it would be duplicative for the respondent to fund both assessments. I accordingly find that he has not met his burden of proving on a balance of probabilities that this assessment is reasonable and necessary.
74The applicant submits that this treatment plan is payable pursuant to s. 38(11) because the respondent did not provide a compliant s. 38(8) notice identifying the specific treatment plan, what was being denied, or medical and other reasons for the denial. Further, the applicant submits that the respondent failed to provide the notice letter within 10 business days.
75I have reviewed the letter of July 28, 2022. It states that the applicant’s entitlement to the assessment would be addressed by Dr. Auguste in a paper review assessment. I agree with the applicant that the respondent did not comply with s. 38(8) with respect to this treatment plan, as its only stated medical reason was that there was no compelling medical documentation to indicate that a functional capacity evaluation was reasonable and necessary. In my view, that is boilerplate language that lacks specificity and therefore does not amount to a medical reason.
76Although the applicant argues that this defective notice was never cured, I find that it was cured by a letter dated August 10, 2022. The applicant is correct that the respondent did not direct me to this letter in its submissions with respect to this treatment plan. However, it did refer me to the letter in its submissions with respect to the treatment plan for issue (b), which I addressed above. Both treatment plans were denied in that letter. The respondent identified the treatment plan for a functional abilities assessment in the amount of $2,000.00, and referred to Dr. Auguste’s opinion that the treatment plans identified in the letter were not reasonable and necessary based on the applicant’s injuries. As I indicated above, I find that this letter was compliant with s. 38(8) as it provided a clear denial and medical reasons.
77The account summary from Prime Health Care indicates that $200.00 was incurred with respect to this treatment plan, however it was incurred on June 30, 2022, prior to the treatment plan being submitted. Pursuant to s. 38(2), an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment plan, aside from in certain circumstances that are not applicable to the matter before me. As such, the respondent is not liable to pay this amount. Further, the applicant has not proven that the treatment plan was incurred after it was submitted and before the notice was provided on August 10, 2022. It is therefore not payable pursuant to s. 38(11).
$2,200.00 for a chronic pain assessment, proposed by Prime Health Care in a treatment plan submitted on September 20, 2022 (issue (i))
78I find that the applicant is entitled to this treatment plan.
79The treatment plan proposed a chronic pain assessment with Dr. Karmy. The goals of the treatment plan were to provide a prognosis and recommendations for recovery, and the functional goal was a return to activities of normal living.
80Dr. Black’s note from September 6, 2022, indicates that the applicant was still experiencing pain in his mid-back approximately 8 months after the accident, despite receiving physical treatment. Additionally, as I have explained above, the applicant was still experiencing some functional difficulties around the time this assessment was proposed. He was still relying on his family to assist with the heavier housekeeping, and was receiving assistance at work with the heavier tasks. In my view, it was reasonable at this stage to explore the nature of the applicant’s pain and provide recommendations for treatment. As such, I find that the applicant has proven, on a balance of probabilities, that this treatment plan was reasonable and necessary.
$1,745.34 ($3,641.09 less $1,895.75 approved) for psychological services, proposed by Prime Health Care in a treatment plan submitted on October 13, 2022 (issue (j))
81I find that the applicant is not entitled to the denied portion of this treatment plan.
82The treatment plan proposed psychotherapy at a rate of $149.61 per hour with a registered psychotherapist. The respondent partially approved the treatment plan to reflect an hourly rate of $99.75, and did not agree to pay for services relating to planning, preparation, or brokerage. In his submissions, the applicant did not explain why he would have been entitled to the denied portion of the treatment plan, and did not make an argument with respect to s. 38(11). Given this lack of explanation, I find that he has not proven, on a balance of probabilities, that the amount in dispute is reasonable and necessary, or is payable pursuant to s. 38(11).
83However, the applicant submits that the respondent only paid $599.00 for treatment under this plan despite partially approving it up to $1,895.75. The account summary from Prime Health Care indicates that only one invoice was provided to the respondent, in the amount of $1,097.68, and $599.00 was paid leaving a balance of $498.68. According to the OCF-21, the hourly rate submitted was $149.61, and not the $99.75 approved. It also appears that the treatment plan proposed 1-hour sessions, but the OCF-21 included four 1.5-hour long sessions, plus 30 minutes for preparation per session. It appears that respondent paid an amount that corresponded with what it had approved. I accordingly disagree with the applicant’s submission that the respondent unreasonably withheld the approved funds.
84Further, I do not accept the applicant’s submission that he is entitled to payment for the full amount approved. There is no evidence before me that subsequent invoices were sent to the respondent or that additional treatment was provided. The applicant is entitled to payment for the approved treatment once it is incurred. If he does not undergo the approved treatment, the respondent is not liable to pay for it.
Interest
85Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest is payable with respect to overdue amounts pertaining to the treatment plans that I have determined the applicant is entitled to.
Award
86The 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.
87The applicant did not provide particulars of its claim for an award, and therefore he has not demonstrated entitlement to one. I find that the respondent is not liable to pay an award.
Costs
88I find that the applicant is entitled to $500.00 in costs, payable by the respondent.
89Pursuant to Rule 19.1 of the Tribunal’s Common Rules of Practice & Procedure, costs may be awarded if a party’s conduct is unreasonable, frivolous, vexatious, or in bad faith. Rule 19.5 specifies that the Tribunal shall consider all relevant factors in deciding whether to award costs and the amount to be ordered, including: the seriousness of the misconduct, whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to the parties, and the potential impact an order for costs would have on individuals accessing the Tribunal system.
90The applicant is seeking $750.00 in costs from the respondent due to its failure to produce any of the documents ordered by the CCRO. The respondent’s obligation was also reiterated by the Tribunal at the motion. The respondent did not provide an explanation for this failure, and it did not address the applicant’s request for costs in its submissions. I find that its behaviour was unreasonable.
91The result of the respondent’s failure is that the applicant was not afforded any insight as to the manner in which the respondent adjusted its file. This rendered it extremely difficult for him to establish that he is entitled to an award. The CCRO specified that the applicant had an obligation to provide particulars of his claim for an award within 30 calendar days after receipt of the respondent’s log notes. As the log notes were never provided, the applicant was deprived of potentially salient evidence upon which to ground his claim for an award.
92I am satisfied that costs are justified as the conduct was in breach of the CCRO, interfered with the Tribunal’s ability to assess the applicant’s claims, and prejudiced the applicant. However, I am not satisfied that the breach was so serious as to attract the amount requested by the applicant. I find that an amount of $500.00 is appropriate under these circumstances.
ORDER
93The applicant is not entitled to a non-earner benefit, nor is it payable pursuant to s. 36(6).
94Out of the $3,342.39 in dispute for physiotherapy services, proposed by Prime Health Care in a treatment plan submitted on April 4, 2022, $2.44 is payable with respect to this treatment plan as a result of s. 38(11). The applicant is also entitled to $23.99 for the analgesic cream and $3,052.76 for the physical treatment plus applicable H.S.T., less the amount already paid (or to be paid, in the case of the $2.44) for those items by the respondent. The applicant is also entitled to applicable interest.
95The applicant is entitled to the following treatment plans, plus applicable interest:
a) $1,836.16 for physiotherapy services, proposed by Prime Health Care in a treatment plan submitted on July 6, 2022;
b) $2,200.00 for an in-home assessment, proposed by Alcat Assessment Inc. in a treatment plan submitted on August 25, 2022; and
c) $2,200.00 for a chronic pain assessment, proposed by Prime Health Care in a treatment plan submitted on September 20, 2022.
96The applicant is not entitled to the remaining treatment plans in dispute, nor are they payable pursuant to s. 38(11).
97The respondent is not liable to pay an award.
98The applicant is entitled to costs from the respondent in the amount of $500.00.
Released: February 26, 2025
Rachel Levitsky
Adjudicator