Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-013727/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:
Thong Quoc Chim
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Steve Clarke
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Olga Elmanova, Counsel
HEARD:
By way of written Submissions
OVERVIEW
1Thong Quoc Chim, the applicant, was involved in an automobile accident on May 27, 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.
2The applicant was taken out of the Minor Injury Guideline (MIG) and initial treatment plans were approved by the respondent.
3Initial denials for the two treatment plans in dispute were, in part, due to the respondent requiring s.44 examinations. The applicant refused to attend any insurance examinations (“IEs”) due to COVID-19 concerns.
4The respondent sent a letter of denial, dated December 29, 2020, to the applicant stating it would schedule IEs as soon as the applicant was able to attend. The respondent maintains that it didn’t hear back from the applicant and subsequently sent a follow-up letter, dated October 28, 2022. This letter stated that if the respondent didn’t hear from the applicant within 14 days, the file would be closed. The respondent maintains that it didn’t receive a response from the applicant. The respondent further maintains the next communication it received was the Notice of Case Conference.
5A case conference was held on August 4, 2023, and the matter was set for a hearing with two medical issues in dispute, plus claims for interest and a s.10 award.
6Following the case conference, the applicant did attend the IEs. Following the IEs, the insurer states that the claim for $3,701.88 for psychological services was approved.
ISSUES
7The issues in dispute are:
i. Is the applicant entitled to $3,161.34 for physiotherapy services proposed by Total Recovery Rehab Centre in a treatment plan/OCF- 18 (“plan”) submitted November 21, 2020 and denied December 29, 2020?
ii. Is the applicant entitled to $3,701.88 for psychological services proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 (“plan”) submitted March 18, 2021 and denied April 5, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonable withheld or delayed payments to the applicant?
8As noted above, following the case conference, the insurer states it approved the treatment plan for psychological services that was listed as an issue in dispute in the Case Conference Report and Order. However, the respondent simply asserted this plan was approved and provided no evidence to support this assertion. Given the respondent’s lack of evidence and the applicant’s lack of confirmation of approval, I am not prepared to make a finding that this plan is approved and therefore no longer in dispute. Yet, I further note that this plan was not mentioned in the applicant’s submissions. By not pointing the Tribunal to any submissions or evidence in support of this treatment plan, I find the applicant has not met his onus to demonstrate entitlement to the psychological services treatment plan.
RESULT
9I find that the applicant has not proven, on a balance of probabilities, that the treatment plans in dispute are reasonable and necessary.
10The applicant is not entitled to interest.
11The applicant is not entitled to a s.10 award.
ANALYSIS
Is the applicant entitled to a medical benefit in the amount of $3,161.43 for physiotherapy services proposed by Total Recovery Rehab Centre submitted to the respondent November 21, 2020?
12I find that the applicant is not entitled to the treatment plan for physiotherapy services, submitted November 21, 2020.
13To 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.
14According to the OCF-18 submitted on November 21, 2020, the goals of the proposed physiotherapy services treatment plan include: pain reduction, increase in strength, increased range of motion, a return to activities of pre-accident work and of normal living. Further rehabilitation was recommended by Dr. Georgia Palantzas, Chiropractor, that included 16 chiropractic and 16 acupuncture treatments.
15The applicant is claiming that he has responded positively to treatment and is continuously improving, and that this treatment plan is reasonable and necessary in its entirety and ought to be payable by the respondent. The applicant is also claiming improper denials by the respondent under s. 38(8), and, in turn, is seeking payment of the plan pursuant to s. 38(11).
16The respondent submits that the treatment plan is not reasonable and necessary, and it seeks an order to dismiss the applicant’s claim in its entirety.
17The applicant submitted clinical notes and records (“CNRs”) from Dr. Kung, family physician, which maintain that the applicant continued to report pain in September 2020, December 2021 and in 2023. I agree with the respondent who submits that there is no illustrated medical link between the proposed treatment plan and injuries sustained in the subject automobile accident. Specifically, I am not led to any documentation that clearly shows the physical issues, as reported by Dr. Kung, are related to the subject accident.
18Once again, the applicant is also claiming that he has responded positively to treatment and is continuously improving. However, I was not pointed to medical records from either Dr. Kung, or the treatment clinic, that support the claim that the applicant has responded positively to treatment.
19Further, I find the respondent’s submission compelling that, despite the 6 visits to Dr. Kung from 2021 to 2023, there is no recommendation for the treatment in dispute.
20In notes from Dr. Kung, he mentions that the applicant had complained of pain in his knees, ankles, and feet in May and June, 2023. Although, the applicant makes claims of pain, I am not pointed to medical tests such as: range of motion, checking for swelling and tenderness and stability of joints, or imaging that illustrates any structural issues, that confirm the applicant’s claims of pain.
21The applicant submits, in a note by Dr. McDowell, Psychologist, dated April 20, 2020, that “pain is preventing him from engaging in his daily activities and that before the accident, he would routinely go to the gym…” The respondent maintains that the applicant is able to continue with employment, activities of daily living (“ADLs”) and housekeeping.
22I put greater weight on the notes of an IE from October 24, 2023 of Dr. Maria Nesterenko, general practitioner, as she put the applicant through objective testing in a series of physical tests. Further, she captured the applicant’s statement “that he resumed his pre-accident employment, albeit on modified duties.”
23Additionally, Dr. Nesterenko recorded that the applicant “stated that prior to the subject motor vehicle accident, he was not involved in any recreational activities”. This is contrary to the applicant’s contention that the applicant would routinely go to the gym. Going to the gym would certainly be an example of taking part in a recreational activity. If indeed he was not going to the gym, before or after the accident, this would not be a limitation on the applicant’s ADLs.
24The findings of Dr. Nesterenko, also note there is an absence of any ongoing musculoskeletal impairment attributable to the accident.
25Additionally, I note that, in a report from Dr. Nesterenko dated August 29, 2023, although there was tenderness on palpation over the anterior area of the knees, the assessor found flexion in both knees was normal. The assessor further observed that there was no ligament instability; meniscal tests were negative; and feet and ankles were within normal range, without any discomfort. These reports suggest the applicant was not suffering any significant discomfort in his knees and feet.
26The applicant submits that he has a substantial inability to engage in caregiving activities. I put more weight in the wording on the OCF-3 form of May 29, 2019, that clearly indicates that the applicant does not suffer this inability.
27Overall, I am not pointed to any medical evidence that directly indicates that any ongoing issues, the applicant seeks to address with this treatment plan, are accident-related. Further, I am not pointed to medical evidence to support the goals of the OCF-18, as there doesn’t appear to be a medically-supported need for pain reduction or a need to increase the range of motion. Additionally, the applicant was able to return to work before his employment ended for reasons unrelated to the accident, and he has not shown he is inhibited from taking part in other ADLs, such as caregiving and housekeeping.
28I find that treatment plan in dispute is not reasonable and necessary.
29I then find that the applicant is not eligible for relief under s. 38(11) of the Schedule.
30The applicant submits that improper denials were provided by the respondent, as he submits the treatment plan in dispute are reasonable and necessary. The applicant further maintained the denials were late and that s. 38(8) and s. 38(11) of the Schedule should apply.
31The respondent submits there is no evidence that the applicant incurred any such expense from December 8 to December 29, 2020.
32Section 38 (8) states that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person 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 costs of them, not to be reasonable and necessary.
33Section 38 (11) of the Schedule provides that if an insurer fails to give notice as described in subsection 8, the insurer cannot hold the applicant within the MIG. It further states that the insurer shall pay for all expenses described in the treatment or assessment plan starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in 38 (8).
34I agree with the applicant that the denials for the treatment plan were late. However, with respect to s. 38(11)1, the applicant had been taken out of the MIG. With respect to s. 38(11)2, there were no claims submitted for dates that fall within the timeframe, i.e., after 10 business days after the day the respondent received the treatment plan (December 8, 2020) and ending on the day the respondent gave its notice (December 29, 2020).
35Although, the applicant is correct that the denial letter came beyond 10 business days after the respondent received the treatment plan, there is no evidence of any expense incurred from December 8 to December 29, 2020.
36For these reasons, I find there is no relief to be granted to the applicant based on s. 38(11).
Interest
37As there are no overdue payments, the applicant is not entitled to interest.
Award
38As there are no benefits owing, the applicant is not entitled to a s. 10 award.
ORDER
39I find that:
i. The treatment plans in dispute are not reasonable and necessary.
ii. The applicant is not entitled to interest.
iii. The applicant is not entitled to an award under s. 10.
iv. This application is dismissed.
Released: April 4, 2025
Steve Clarke
Adjudicator