Licence Appeal Tribunal File Number: 23-002017/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:
M.M.
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Kelisa Reyes, Paralegal
For the Respondent:
Arfa Saeed, Counsel
HEARD:
By way of written submissions
OVERVIEW
1M.M., the applicant, was involved in an automobile accident on May 23, 2018, 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, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was born in 2007 and is presently a minor. On request of the applicant, I have made an order anonymizing the applicant’s name in the Tribunal’s decision.
PRELIMINARY ISSUES
3The preliminary issue to be decided is:
- Is the applicant barred from proceeding to a hearing on the issue of the treatment plan in the amount of $3,416.79 because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
SUBSTANTIVE ISSUES
4The substantive issues to be decided are:
Is the applicant entitled to $3,416.79 for physiotherapy services, proposed by Mayank Bhargava in a treatment plan (“OCF-18”) dated September 23, 2021?
Is the applicant entitled to $255.00 for medical expenses, submitted on a claim form (“OCF-6”) dated September 2, 2021?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5With respect to the preliminary issue, I find the applicant is not statute-barred pursuant to s. 55(1)2 from proceeding with the issue of the OCF-18 in the amount of $3,416.79.
6With respect to the substantive issues, I find that:
i. The applicant is not entitled to the OCF-18, OCF-6 or interest; and
ii. The respondent is not liable to pay an award.
PROCEDURAL ISSUES – ANONYMIZATION ORDER
7In his written hearing submissions, the applicant sought an order to have the Tribunal’s decision anonymized. He relies on the Tribunal decision DC v TD Insurance Meloche Monnex, 2023 CanLII 77319 (ON LAT), to argue that in similar circumstances the Tribunal has determined that a minor’s privacy should be protected and that the decision should only identify the applicant by his initials. The respondent did not provide any submissions on the anonymization request.
8Tribunals are subject to the open courts principle which means that their proceedings are presumptively open to the public. The test for limits in openness is outlined in Sherman Estate v. Donovan, 2021 SCC 25, which states that the person seeking to limit the open court principle must establish: the serious risk to an important public interest; the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent the risk; and as a matter of proportionality, the benefits of the order outweigh its negative effects.
9I agree with the reasoning in DC v TD that it is well-settled that the law recognizes that minors are especially vulnerable to intrusions of privacy. I find that the risk of harm to the minor applicant outweighs any risk to the public interest in not knowing who he is. By anonymizing the order, the applicant’s identity and the public interest in protecting vulnerable persons is protected with minimum infringement on the public’s right to a transparent proceeding. As such, the applicant shall be identified only by his initials M.M.
PRELIMINARY ISSUE
10I find the applicant is not statute-barred pursuant to s. 55(1)2 from proceeding with the issue of the OCF-18 in the amount of $3,416.79.
11Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
12Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
13The respondent submits that the applicant failed to attend a properly scheduled s. 44 general practitioner’s (“GP”) insurer’s examination (“IE”). The respondent concedes that the applicant attended the first GP IE conducted on February 3, 2022. However, after the assessment the respondent’s assessor Dr. Todd Walters concluded that he required additional medical records before he could determine whether the OCF-18 in dispute was reasonable and necessary. These records were not provided until May 2023. Upon receipt of the records, Dr. Walters required a follow-up IE scheduled for August 3, 2023. The respondent submits that the applicant failed to attend this re-scheduled IE without reasonable explanation and as such, should be barred from proceeding with the treatment plan pursuant to s. 55(1)2.
14The applicant argues that he was not obliged to attend the second GP IE since all of the respondent’s notices of examination (“NOE”) were non-compliant with s. 44(5) of the Schedule. He submits that the respondent’s notices failed to provide any medical reasons for the proposed IE. Alternatively, the applicant argues that his subsequent attendance at the re-scheduled s. 44 GP assessment disposes of the preliminary issue in its entirety.
15I agree with the applicant that his subsequent attendance at the s. 44 GP IE has disposed of the preliminary issue. The applicant has submitted correspondence between the parties establishing that the IE in question had been subsequently rescheduled to November 30, 2023. The applicant clearly attended this assessment, as the respondent is relying on a second s. 44 GP report dated December 21, 2023, with an assessment date of November 30, 2023. It specifically references the treatment plan in dispute. Given that the applicant has attended the disputed IE and that the respondent is relying on the report stemming from this assessment, I find that the respondent has not established that the applicant failed to attend an IE pursuant to s. 44(1), or if he has, he has now cured such non-compliance. As such, there is no bar to the applicant proceeding with the treatment plan in dispute.
ANALYSIS
OCF-18 dated September 23, 2021 in the amount of $3,416.79 for physiotherapy services
16I find that the applicant has not established entitlement to the OCF-18 in the amount of $3,416.79.
17The applicant submits two arguments with respect to this OCF-18. Firstly, that it is payable pursuant to s. 38(11) of the Schedule as the respondent’s various denials were non-compliant with s. 38(8) of the Schedule. Alternatively, the applicant argues that the proposed treatment is reasonable and necessary.
The respondent was compliant with s. 38(8) of the Schedule
18The applicant argues that all of the respondent’s notices failed to provide medical and all of the other reasons for the denial. He submits that the initial correspondence dated September 23, 2021 was insufficient in that it simply stated that it had been “over 3 years post-accident”, that maximal medical recovery should have been achieved, and that the respondent did not have sufficient medical information to support the request for treatment. The applicant further argues that none of the subsequent notices rectified the non-compliance.
19While I agree with the applicant that the September 23, 2021 letter was non-compliant with s. 38(8) in that it failed to provide a medical reason for the denial, I find that the respondent’s subsequent correspondence cured any non-compliance. The respondent’s February 17, 2022 letter enclosed the first GP IE report, noted that Dr. Walters was unable to make a determination on the reasonableness and necessity of the OCF-18 and that he required additional information, being clinical notes and records for the previous two years. As such, the respondent clearly specified what information it did not have, but still required.
20Further, the respondent subsequently sent a final denial letter dated January 4, 2024, which I also find was compliant with s. 38(8). This notice enclosed the second IE report dated December 21, 2023, and noted Dr. Walters’ findings that ongoing formal rehabilitative care such as physiotherapy, chiropractic treatment and massage therapy are not reasonable and necessary. The applicant relies on the Tribunal decision G.P. v. Wawanesa Mutual Insurance Company, 2022 CanLII 45306 (“G.P.”) to argue that simply quoting the results of an assessment is not an adequate denial, and that while a s. 44 assessment can be one of the reasons for a denial, it cannot be the only one.
21I am not persuaded by the applicant’s argument. I do not agree with the applicant that G.P. stands for the proposition that the opinions of s. 44 assessors cannot be the only reason for a denial. To the extent that this is the finding in G.P., I do not agree with this reasoning, nor am I bound by it. I further find that by enclosing the IE report and summarizing the assessor’s conclusion, the respondent provided a clear and unequivocal denial with straightforward and clear language, sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. As such, I find that the applicant has not established that the respondent was non-compliant with s. 38(8) of the Schedule, or that the OCF-18 is payable by virtue of s. 38(11).
The OCF-18 is not reasonable and necessary
22The applicant submits that the OCF-18 for physiotherapy, chiropractic treatment and massage therapy is reasonable and necessary for the serious impairments he sustained from the accident. The applicant relies on the clinical notes and records (“CNRs”) of his family physician Dr. Michael Fox, which reveal the applicant’s accident-related concussion symptoms, psychological symptoms, headaches, light sensitivity, dizziness and tinnitus. Further, throughout 2018 and 2019 the applicant continued to report ongoing pain including foot and right shoulder pain to Dr. Fox.
23The applicant was referred to a pediatric chronic pain program at McMaster Children’s Hospital, and in a March 5, 2020 report, Dr. Deepa Kattail diagnosed the applicant with chronic pain disorder. Dr. Kattail noted the applicant’s reports of diffuse body pain, including in his bilateral thighs, groin, entire spine, bilateral ankles and elbows, in addition to constant headaches. The report further stated that based on the assessment of the occupational therapist and physiotherapist, “further therapy may be recommended”.
24The respondent relies on the December 21, 2023 s. 44 GP assessment report of Dr. Walters, who found that the OCF-18 was not reasonable and necessary. Dr. Walters found that while physiotherapy, chiropractic treatment and massage therapy were likely reasonable for the first one to two years post-accident given the traumatic nature of the injury, further formal rehabilitative care was no longer reasonable and necessary.
25The applicant argues that Dr. Walters’ s. 44 report should be given limited weight, if any, as Dr. Walters failed to consider the OCF-18’s stated goal of pain reduction in his report. The applicant further relies on the Tribunal decision Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ONLAT) to argue that since the underlying NOEs were non-compliant with s. 44(5) of the Schedule, any corresponding IEs should be disregarded or given limited weight.
26I find that the applicant has not established that the proposed treatment is reasonable and necessary.
27Although the applicant has established that he suffered from ongoing pain and concussion symptoms in the initial years post-accident, I agree with the respondent that the applicant has not led evidence of these symptoms at the time the OCF-18 was submitted in September 2021. Further, the applicant has not led evidence that further physical therapy was still being recommended in September 2021.
28The applicant relies in large part on the chronic pain report of Dr. Kattail. However, this report and assessment was done in March 2020, a year and a half before the OCF-18 was submitted. Further, the CNRs of Dr. Fox do not reveal ongoing pain complaints post-March 2020. The applicant also does not direct me to any referral for physical therapy in 2021. The applicant references a note from Dr. Saleki at his physiotherapy clinic where it was stated that an “active/passive rehab program” was recommended. However, this note was not dated. As such, the applicant has not led evidence that ongoing physical therapy was still being recommended three years post-accident. Particularly in the case of multiple courses of ongoing therapeutic treatment, evidence is required to establish the efficacy of continued treatment, years after the accident.
29As such, I find that the applicant has not established entitlement to the OCF-18 in dispute.
OCF-6 dated September 2, 2021 in the amount of $255.00
30I find that the applicant has not established entitlement to the expenses listed in the OCF-6.
31The applicant submitted an OCF-6 dated September 2, 2021 for $255.00. It consisted of $190.00 for the cost of a psychological treatment session, and a May 4, 2021 invoice for $65.00 for the cost of obtaining CNRs from his physiotherapy clinic. The applicant argues that the psychological treatment session would fall under s. 16(1) and (3) of the Schedule, since the respondent is to pay for reasonable and necessary expenses incurred by the insured, such as family counselling and social rehabilitation counselling.
32With respect to the cost of obtaining the CNRs, the applicant argues that these would fall under s. 15(1) being goods and services of a medical nature that the insurer agrees are essential for the treatment of the insured person. The applicant points to the fact that in its subsequent February 17, 2022 EOB, the respondent requested further medical records from the applicant. As such, the applicant is arguing that since he needs to substantiate the need for treatment, it is untenable that the respondent refuses to pay for the records.
33The respondent relies on s. 38(2)(d) of the Schedule to argue that it did not waive the requirement for a treatment plan and that the applicant did not contact the insurer seeking prior approval. As such, it submits that it properly denied the OCF-6 as the expenses were incurred without prior approval.
34I find that sections 15(1), 16(1) and (3), and 38(2)(d) of the Schedule are not applicable as the sections relate to expenses incurred that the respondent agrees are essential for the treatment of the applicant, and for which a benefit is not otherwise provided in the Schedule. As such, these sections are dependent on the respondent’s agreement that the expenses are essential for the treatment or rehabilitation of the applicant. I conclude from the EOB denying the OCF-6, as well as the submissions for this hearing, that the respondent does not agree that the expenses are essential for the treatment or rehabilitation of the applicant.
35Although the applicant appears to be arguing that because the respondent subsequently requested some CNRs, the cost of obtaining the records must be reimbursable, I am not persuaded by the applicant’s argument. The invoice for the physiotherapy CNRs is dated May 4, 2021, however, the respondent did not request medical records until almost a year later. In its February 17, 2022 EOB relating to the treatment plan, the respondent requested CNRs from the applicant’s “health practitioner”. No evidence has been led establishing that the physiotherapy CNRs were the records subsequently requested by the respondent, or that the respondent had agreed to reimburse the cost of the physiotherapy records.
36As the applicant has not established that the respondent agreed to pay for the expenses, the applicant has not established entitlement to the cost of the OCF-6.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that no benefits are payable, I find that the applicant is not entitled to interest.
Award
38The applicant sought an award under s. 10 of Regulation 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. While the applicant argues that the respondent failed to adjust his claim in good faith, I find no evidence in support of this claim. As such, the applicant has not established a basis for an award.
ORDER
39With respect to the preliminary issue, I find the applicant is not statute-barred pursuant to s. 55(1)2 from proceeding with the issue of the OCF-18 in dispute.
40With respect to the substantive issues, I find that:
i. The applicant is not entitled to the OCF-18, OCF-6 or interest;
ii. The respondent is not liable to pay an award.
Released: February 28, 2025
Ulana Pahuta
Adjudicator