Citation: Onsare v. Aviva Insurance Company of Canada, 2025 ONLAT 23-006050/AABS

Licence Appeal Tribunal File Number: 23-006050/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:

Elpin Onsare

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Julia logoutova, Paralegal

For the Respondent:

Kristofer B. Angle, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Elpin Onsare, (the “applicant”) was involved in an automobile accident on February 26, 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 Aviva Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to the treatment plans/OCF-18s (“OCF-18s”) proposed by 240303 Ontario Ltd., as follows:

(i) $2,042.06 ($3,185.19 less $1,773.13 approved) for chiropractic, massage, acupuncture, and physiotherapy services dated June 28, 2022; and

(ii) $2,227.73 for physiotherapy, massage, acupuncture, and chiropractic services, dated September 28, 2022?

2. Is the applicant entitled to the OCF-18s proposed by 240307 Ontario Ltd., as follows:

(i) $2,641.62 for aqua therapy, exercise equipment, pool rental and chiropractic services, dated August 9, 2022;

(ii) $2,244.23 ($4,837.99 less $2,593.76 approved) for psychological services dated April 1, 2022; and

(iii) $145.48 ($1,050.57 less $905.09 approved) for kinesiology and exercise equipment dated September 28, 2022?

3. Is the applicant entitled to the assessments proposed by 240307 Ontario Ltd., as follows:

(i) $2,000.00 for a neurological assessment dated August 16, 2022; and

(ii) $2,300.00 for a chronic pain assessment dated September 28, 2022?

4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant is entitled to the OCF-18 for chiropractic, massage, acupuncture, and physiotherapy services dated June 28, 2022, for the unapproved amount plus interest in accordance with s. 51 of the Schedule.

ii. The applicant is entitled to the OCF-18 for physiotherapy, massage, acupuncture, and chiropractic services, dated September 28, 2022, in the amount of $2,227.73, plus interest in accordance with s. 51 of the Schedule.

iii. The applicant is entitled to the OCF-18s for aqua therapy, exercise equipment, pool rental and chiropractic services, dated August 9, 2022 and a neurological assessment dated August 16, 2022, plus interest in accordance with s. 51 of the Schedule.

iv. The applicant is entitled to the April 1, 2022 OCF-18 for psychological services with a remaining balance of $2,244.23, plus interest in accordance with s. 51 of the Schedule.

v. The applicant is entitled to the September 28, 2022 OCF-18 for kinesiology and exercise equipment with a remaining balance of $145.48, plus interest in accordance with s. 51 of the Schedule.

vi. The applicant is not entitled to the September 28, 2022, OCF-18 for a chronic pain assessment in the amount of $2,300.00. The applicant is also not entitled to interest in accordance with s. 51 of the Schedule.

ANALYSIS

The June 28, 2022, OCF-18 for chiropractic, massage, acupuncture, and physiotherapy services

4I find that the explanation of benefits (“EOB”) dated July 12, 2022 was non-compliant with s. 38(8) of the Schedule. I also find the subsequent EOB, dated July 27, 2022, did not cure this deficiency. Therefore, the OCF-18 for chiropractic, massage, acupuncture, and physiotherapy services, is payable under s. 38(11) of the Schedule once incurred and properly invoiced by the applicant.

5Under s. 38(8), an insurer has the obligation to provide an insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial. If those reasons are not provided, the consequence under s. 38(11) is that the insurer must pay for the goods and services described in the treatment plan.

6The applicant argues that neither the EOB, dated July 12, 2022, nor the EOB, dated July 27, 2022, complied with s. 38(8) because the respondent failed to provide the medical reasons for the partial denial or why the amounts were being denied. The applicant also argues that she was not provided with a clear and unequivocal explanation about what injuries she sustained in the accident and how they compared to the definition of a minor injury.

7The respondent argues that it provided the medical and all of the other reasons as required by the Tribunal decisions of M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (“M.B.”) and 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) (“16-003316”). It further argues that its medical and all of the other reasons were unequivocal and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the denial of the OCF-18.

8In the July 12, 2022 EOB, the respondent provided the following reasons for denying the OCF-18:

We’re unable to determine whether the recommendations on your OCF 18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time…

Under Section 44 of the Statutory Accident Benefit Schedule (SABS), we are setting up an independent medical examination to review these recommendations…

The OCF-18 dated June 28 indicated that your injury is minor and proposing the same treatments. As such, we are requesting a Section 44 Insurers Examination to determine if the treatment plan is reasonable and necessary in its entirety or if alternatives may be more effective.

9I find that the July 12, 2022 EOB did not comply with the requirements under s. 38(8) of the Schedule as it failed to provide adequate medical reasons to deny the disputed OCF-18. Contrary to the respondent’s position, both M.B. and 16-003316 (at paragraphs 26 and 19, respectively) make clear that in order for an insurer to be compliant with s. 38(8) “…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...” Here, the EOB provided no specific details about the applicant’s medical condition, nor did the respondent identify what information it required from the applicant. Rather, the EOB stated that the respondent was unable to determine whether the OCF-18 was reasonable and necessary based on the injuries sustained, but provided no details on what these injuries were, and why the OCF-18 was not reasonable and necessary based on those injuries.

10Likewise, the respondent identified that the disputed OCF-18 indicated that the applicant’s injuries were minor, however the disputed OCF-18 stated that the applicant sustained predominantly minor injuries but the applicant had a pre-existing condition under s. 18(2) of the Schedule that would warrant removal from the MIG. I find that the respondent did not meaningfully communicate what the disputed OCF-18 stated because there is no discussion of whether the applicant’s pre-existing conditions would warrant removal from the MIG, nor did the respondent identify what information it required from the applicant in this regard. This also does not serve the Schedule’s consumer protection goal. As a result, I find that the EOB, dated July 12, 2022 was not clear enough to allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial.

11The respondent further argues that it identified information about the insured’s condition that the insurer does not have but requires, because it requested a s. 44 insurer’s examination (“IE”). It also relies upon the Tribunal decision of F.J.H. v. Unica Insurance Inc., 2019 CanLII 101739 (ON LAT) (“F.J.H.”) to support its position that providing notice of an examination in accordance with s. 38(10) of the Schedule supports a finding that the notice complied with s. 38(8) of the Schedule.

12I disagree with the respondent’s position that the insurer’s examination constitutes as identifying information about the insured’s condition that it does not have but requires. This is because the respondent provided minimal information on why an insurer’s examination was required for this OCF-18. The respondent did not identify the applicant’s diagnosis or prognosis or why an IE was required to determine whether the OCF-18 is reasonable and necessary. In a similar vein, while the respondent identified the OCF-18, it provided no reference to the applicant’s pre-existing conditions or whether they would warrant removal from the MIG. If I accepted the respondent’s position that it complied with s. 38(8) because it advised that an IE was required because it was unable to determine whether the proposed OCF-18 is reasonable and necessary, it would render s. 44(5) meaningless. This is because s. 44(5) also requires the medical and any other reasons for the examination. In my view, stating an IE is required but providing no information on why this is so or specific details about the applicant’s conditions does not satisfy the requirements of both s. 44(5) and s. 38(8).

13In a similar vein, I am not bound by F.J.H, and I do not agree with the adjudicator’s reasoning in that decision. In F.J.H, the adjudicator determined that since the respondent was compliant with s. 38(10) because it asked the applicant to attend an IE because her injuries were minor, then the respondent was also compliant with s. 38(8). I disagree because s. 38(10) does not override the respondent’s requirement under s. 38(8) to provide the medical and all of the other reasons for denying the OCF-18. Rather, s. 38(10) states that when an insurer believes the MIG applies, the notice under section 38(8) may ask the applicant to attend an insurer’s examination. Therefore, an insurer may state to the applicant that the MIG applies and an IE is required in its section 38(8) letter, however the insurer still has to provide the medical and all of the other reasons for denying the OCF-18 in accordance with s. 38(8). In other words, s. 38(10) does not override the respondent’s requirement under s. 38(8) to provide the medical and all of the other reasons for denying the OCF-18.

14It is a basic principle of statutory interpretation that every word that is found in a statute has been included there for a reason and is intended to have a purpose. In my opinion, had the legislature intended for s. 38(10) to override the requirements under s. 38(8), then it would have been reflected in this legislation. This was not done, and I must respect the legislature’s intent.

15I also find that the respondent’s EOB dated July 27, 2022 did not cure the non-compliance, because it also failed to provide adequate medical and all of the other reasons for denying the disputed OCF-18.

16In its July 27, 2022 EOB, the respondent provided the following reasons for maintaining its denial:

Please review the enclosed insurer’s examination completed by Viewpoint under section 44 of the Statutory Accident Benefits Schedule. The examination was completed by Dr. Tonya Ballard, Physical Medicine and Rehabilitation Specialist and dated July 26, 2022. The assessor reviewed the Treatment Plan (OCF-18) submitted by 2430303 ONTARIO INC. dated June 28, 2022 for chiropractic, massage therapy, acupuncture treatment. The assessor determined the treatment recommended is partially reasonable and necessary from the injuries sustained in the motor vehicle accident…

Aviva will not fund the following:

• Line 4 massage therapy and cost $523.68

• Line 5 stimulation muscles and cost $523.68

• Line 6 Hyperthermy and cost $230.40

• Line 7 Acupuncture and cost $349.14

17I find that the EOB is non-compliant with s. 38(8) because the respondent provided no specific details about the applicant’s diagnosis and prognosis, nor did the respondent advise why it was not funding the remaining services outlined in the OCF-18. Instead, the respondent vaguely advised the applicant that the s. 44 assessor recommended that the OCF-18 was partially reasonable and necessary, but provided no details on what the assessor stated about the applicant’s medical condition and why the OCF-18 was partially reasonable and necessary. Nor did the respondent identify why Dr. Ballard determined that the remaining services were not reasonable and necessary. I find that this EOB does not serve the Schedule’s consumer protection goal and was not clear to allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial.

18The respondent also argues that the Tribunal decision of Hussain v. Aviva General Insurance, 2023 CanLII 32802 (ON LAT) (“Hussain”) stands for the proposition that a defective EOB can be cured by a subsequent EOB that partially approves the OCF-18. I do not concur that Hussain stands for this proposition as argued by the respondent. Rather, the adjudicator in Hussain determined that the subsequent EOB cured the previous deficiency because the respondent provided adequate reasons for denying the outstanding balance which was because it consisted of goods and services relating to planning, preparation, or brokerage fees, which are included in the $200.00 maximum fee permitted for an OCF-18 completion (see paragraph 15). Here, the respondent has provided no reasons on why the remaining balance was not reasonable and necessary.

19The respondent also relies upon the Divisional Court decision of Khan v. Aviva, 2024 ONSC 4056 (“Khan”), to support its position that the applicant must establish the amounts that were incurred while the determination was overdue in order to trigger s. 38(11). I am bound by Khan; however, I find that the factual scenario before me is distinguishable. At paragraph 20 of the decision, the court noted that Vice Chair Lester found that an OCF-18 was denied outside of the time limit mandated under s. 38(8) but there was no evidence that the applicant incurred the expenses between the time limit and January 29, 2020, when the OCF-18 was properly denied, which the court found not to be an error of law.

20In the matter before me, I have found that the respondent has not cured the deficient notice, therefore the matter is distinguishable from Khan. While the parties did not refer me to this Divisional Court decision, I am also bound by it: Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”).

21In Suarez, the Divisional Court ruled that where an insurer fails to provide a proper s. 38(8) notice and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to consume the disputed OCF-18. The insurer shall pay for that disputed OCF-18 in accordance with s. 38(15) and cannot cure their defective denial. In the matter at hand, as the insurer did not rectify its deficient notice, I find that the Divisional Court’s reasoning in Suarez is applicable.

22As such, I find the OCF-18 for chiropractic, massage, acupuncture, and physiotherapy services to be payable, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

The September 28, 2022 OCF-18 for physiotherapy, massage, chiropractic, and acupuncture services in the amount of $2,227.73

23I find that the EOB, dated September 29, 2022, was non-compliant with s. 38(8) of the Schedule, and it is payable under s. 38(11) of the Schedule, once incurred and properly invoiced by the applicant, as the respondent did not cure the deficient notice prior to this hearing.

24The applicant argues that the September 29, 2022 EOB was misleading, confusing and did not provide a clear understanding of the services the respondent agreed or refused to pay for.

25The respondent argues that it referenced the IE report of Dr. Ballard and cited her findings and medical opinion as the basis for the denial. It argues that this denial was clear enough to allow an unsophisticated person to make an informed decision.

26In the September 29, 2022, EOB, the respondent provided the following reasons for denying the OCF-18:

We have received a Treatment Plan (OCF-18) from 2430303 ONTARIO INC. WYNFORD HEALTH CLINIC. Paul Bruni has recommended chiropractic, massage therapy, acupuncture and physiotherapy treatment for a total cost of $2227.73.

Upon review of Dr. Tonya Ballard's opinion in the Insurer’s Examination (IE) report dated July 26, 2022 she have previously partially approved the same treatment plan and indicated "Other than the active exercise partially reasonable and necessary above, with continued participation in an independent exercise program, I have no further recommendations." We have not received any updated clinical records indicating a change in your condition since the date of the IE report. Therefore, Aviva will not consider funding this treatment.

27I agree with the applicant the respondent’s EOB was non-compliant with s. 38(8) because it was unclear as to why the exercise services outlined at Line three were being denied when as stated by the respondent, Dr. Ballard found active exercises to be partially reasonable and necessary in a previous OCF-18. As such, in my view, the EOB did not provide clear and sufficient information for the applicant to make an informed decision as to whether to accept or dispute the denial of the exercise services outlined in the OCF-18.

28Further, under s. 38(8), the respondent is mandated to provide medical and all of the other reasons why the remaining services, beyond the exercise services are not reasonable and necessary, which it did not do so. Indeed, while the respondent identified that Dr. Ballard previously concluded that the active exercise was partially reasonable and necessary with continued participation in an independent exercise program, it provided no reasons on why this rendered the remaining services in the OCF-18 not reasonable and necessary. While the respondent identified that it required updated clinical records, it did not identify which records it required, i.e. the CNRs of the applicant’s family physician or the treatment records.

29Accordingly, the treatment plan for physiotherapy, massage, chiropractic, and acupuncture services is payable, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

The August 9, 2022 OCF-18 for aqua therapy, exercise equipment, pool rental and chiropractic services, and the August 16, 2022 OCF-18 for a neurological assessment

30For the reasons that follow below, I find that the EOBs, dated August 23, 2022 and September 15, 2022 were non-compliant with the requirements set out under s. 38(8) of the Schedule. Therefore, the OCF-18 is payable under s. 38(11) once incurred and properly invoiced by the applicant, as the respondent did not cure the deficient notice prior to this hearing.

31The applicant argues that the EOB, dated August 23, 2022, was non-compliant with s. 38(8) because the respondent did not provide reasons for why the aqua therapy, and neurological assessment were not reasonable and necessary. The applicant also argues that the EOB of September 15, 2022 provided no reasons on why the OCF-18 was not approved.

32The respondent argues that both EOBs were compliant with s. 38(8) because it cited the findings and medical opinion of Dr. Ballard as the basis for the denial. It further argues that it gave notice of a s. 44 IE in order to determine whether the OCF-18 is reasonable and necessary.

33In the August 23, 2022 EOB, the respondent provided the following reasons for denying the OCF-18s:

We’re unable to determine whether the recommendations on your OCF 18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time…

The OCF-18 dated August 9, 2022 and August 16, 2022 are proposing auqua [sic] therapy, chiropractic treatment and neurological assessment. As per Section 44 report dated July 5, 2022, Dr. Tonya Bollard stated " Ms. Onsare is independent in her personal care tasks. She has returned to her own cooking, cleaning and laundry on a paced basis. She has not returned to travelling. She has returned to driving. She continues to participate in online classes in the Business Accounting Program at George Brown College." Dr. Tonya Ballard also stated on her paper review report dated July 26, 2022 "During the assessment conducted on May 27, 2022, Ms. Onsare reported a 50% improvement in her pain in her right shoulder and right forearm, with approximately three months of therapy which appears to have been predominantly passive in nature. Further passive therapies are not likely to provide any further benefit." We have not received updated medical records since the last Insurer's Examination, therefore, we require an insurer's examination to determine if the OCF-18s are reasoable [sic] and necessary.

34I find that this EOB did not comply with the requirements under s. 38(8) of the Schedule because it failed to provide adequate medical reasons to deny the aqua therapy, exercise equipment, pool rental and neurological assessment portion of the OCF-18. I am alive to the fact that the respondent provided reasons on why the chiropractic treatment was not reasonable and necessary because Dr. Ballard concluded that further passive therapies are not likely to provide further benefit. However, I concur with the Tribunal in 16-003316 that some or partial compliance with the Schedule is not enough. Here, the respondent provided no reasons on why the aqua therapy (which is active therapy and not passive), the exercise equipment, pool rental and the neurological assessment are not reasonable and necessary.

35I am also not persuaded by the respondent’s position that since it requested an IE to determine whether the OCF-18 is reasonable and necessary, it identified information about the applicant’s condition that it does not have but requires. This is because the respondent provided no medical or any other reasons as mandated under s. 44(5) on why the IE assessments were required for the proposed aqua therapy, exercise equipment, pool rental and neurological assessment. As such, I find that this EOB is not clear to allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial.

36I also find that the EOB, dated September 15, 2022 did not cure the non-compliance, because it was also non-compliant with s. 38(8).

37In the EOB, dated September 15, 2022, the respondent provided the following reasons for denying the OCF-18s:

Please review the enclosed Physiatry Paper Review report completed by Viewpoint under section 44 of the Statutory Accident Benefits Schedule. The paper review was completed by Dr. Tonya Ballard and dated September 9, 2022. The assessor reviewed the Treatment Plans (OCF-18s) submitted by 2430307 ONTARIO LTD. dated August 16, 2022, and August 9, 2022, for neurology assessment and for aqua therapy, exercise equipment, pool rental. The assessor determined the treatment and assessment recommended are not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment and assessment incurred relating to this treatment plans.

The assessors, on page <<Manual entry - specify page number>>, have recommended: <<Manual entry -specify any recommendations>>. Aviva is agreeable to funding these recommendations. Please submit a Treatment Plan (OCF-18) for the recommended treatment to Aviva for consideration.

38I find that the EOB is non-compliant with s. 38(8) because it provided no specific details about the applicant’s diagnosis, prognosis, nor did the respondent identify what information it required. Rather, the respondent advised the applicant that the OCF-18s were being denied because Dr. Ballard determined that they were not reasonable and necessary for the injuries sustained in the accident. In my view, the respondent did not meaningfully communicate what Dr. Ballard’s report indicated about the applicant’s condition and why the proposed OCF-18s were not reasonable and necessary as a result of the applicant’s injuries. I also find that the EOB was confusing because it advised the applicant that the assessor also made certain recommendations and that the respondent was agreeable to funding these recommendations, and that the applicant should submit a further OCF-18. Significantly, the respondent did not identify what services it was agreeable to funding. Therefore, I find that the EOB was not clear to allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial.

39As a result, the provisions set out in s. 38(11) of the Schedule are triggered, and as such, the OCF-18s are payable, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

The April 1, 2022 OCF-18 for psychological services with a remaining balance of $2,244.23

40I find that the EOB, dated April 11, 2022 was non-compliant with the requirements set out under s. 38(8) of the Schedule. Thus, the OCF-18 dated April 1, 2022 is payable under s. 38(11) once incurred and properly invoiced by the applicant.

41The applicant argues that the proposed OCF-18 outlined psychotherapy sessions for 1.5 hours at the rate of $224.42. Yet, she argues that the respondent in its EOB did not provide any medical or any other reasons on why it was approving psychotherapy for 1 hour instead of the 1.5 hours as proposed.

42The respondent argues that it explained to the applicant in the EOB why it agreed to fund psychotherapy sessions, and the completion of the OCF-18, and why it did not agree to pay for ancillary administrative fees that were over the $200 limit.

43In its April 11, 2022, EOB the respondent provided the following reasons for partially approving the OCF-18:

We have reviewed the Treatment & Assessment Plan (OCF-18) dated April 1, 2022 submitted by 2430307 Ontario Limited. We believe this Treatment Plan is partially reasonable and necessary.

We agree to pay for the following goods and services:

1. Psychotherapy (16 sessions at $149.61 per hour)

2. Completion of OCF-18 Form ($200.00)

For a total cost of $2593.76 in accordance with the Professional Services Guidelines to a maximum of $2593.76 subject to deduction of any amounts covered by any other available medical plan coverage…

We refuse to pay for the following goods and services:

1. File and all documentation review

2. Brokerage, service

3. Assessment, service

4. Preparation, service

The above noted services are not payable as per the Professional Services Guidelines. Please be advised that medical note taking is part of the hourly fee and should not be billed separately. The numerous costs associated with treatment review/planning/discharge report/feedback interview are not reasonable or necessary, as these are part of the $200 fee for form completion, as this fee includes any assessments or planning required for the completion of the OCF-18.

44To be frank, I find that this EOB falls short of meeting the requirements under s. 38(8), where no explanation is provided on why the respondent is reducing the psychotherapy sessions from 1.5 hours to 1 hour. I acknowledge that the respondent in the EOB identified that it was paying a maximum of $2593.76 in accordance with the Professional Services Guidelines, however the proposed cost of $224.42 for 1.5 hours of treatment accords with these Guidelines. This is because $224.42 divided by 1.5 hours equals $149.61 which is the maximum hourly rate under the Guidelines. Significantly, the Guidelines do not place a restriction on how many hours of treatment an applicant can receive but rather note that the maximum hourly rate is $149.61 for psychologists. I further acknowledge that the respondent did provide all of the other reasons for why the administrative costs portion of the OCF-18 was not approved, however once again, I find some or partial compliance with the Schedule is not enough. In accordance with the consumer protection nature of the Schedule, the applicant was entitled to be provided with meaningful and accurate reasons on why the proposed psychotherapy sessions were being reduced from 1.5 hours to 1 hour, which was not done.

45Consequently, I find that the respondent’s EOB dated April 11, 2022, is non-compliant with s. 38(8), and the respondent has not pointed me to correspondence that cures this deficient denial letter. As such, I find that the remaining balance for the OCF-18 for psychological services to be payable with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

The September 28, 2022 OCF-18 for kinesiology and exercise equipment with a remaining balance of $145.48.

46I find that the respondent’s EOB, dated October 3, 2022, was non-compliant with s. 38(8), and therefore is payable under s. 38(11) once incurred and properly invoiced by the applicant.

47The applicant argues that the respondent’s EOB was non-compliant with s. 38(8) because it did not identify all of the goods and services outlined in the OCF-18 such as the six exercise sessions, documentation, provider travel time and preparation service. She further argues that the OCF-18 was subsequently approved on HCAI but no explanation of the partial denial was provided to the applicant.

48The respondent argues that it was compliant with s. 38(8) because the EOB referenced a previous IE and cited the findings and medical opinion of Dr. Ballard.

49In its EOB, dated October 3, 2022, the respondent provided the following reasons for denying the OCF-18:

Upon review of Dr. Tonya Ballard opinion in the Physical Medicine and Rehabilitation Specialist Insurer’s Examination (IE) report dated July 26, 2022 she partially approved the previous OCF-18 for two weekly exercise sessions over a period of six weeks for eight weekly one hour sessions with the provision that this include strengthening and conditioning exercises with a focus on the scapular stabilizers and the forearm musculature, with clear instruction on a self-directed home-based program. There was no recommendations from her previous report. We have not received any updated clinical records indicating a change in your condition since the date of the IE report. Therefore, Aviva will not consider funding this treatment.

50I find that this EOB does not comply with s. 38(8) because the respondent did not provide adequate medical reasons and all of the other reasons on why the documentation support activity, travel costs, preparation service costs, and the exercise equipment were not reasonable and necessary. I acknowledge that the respondent did provide reasoning on why the exercise services were not reasonable and necessary because Dr. Ballard concluded that the applicant should complete a home based program after doing two weekly exercise sessions over a time period of six to eight weeks. However, the respondent provided no reasoning on why the remaining services as outlined above were not reasonable and necessary. Significantly, the OCF-18 also proposed exercise equipment to be provided by a chiropractor.

51The respondent also did not refer me to a subsequent EOB that cured this non-compliance. Rather, the applicant produced a copy of HCAI where the respondent approved the OCF-18 but the respondent did not provide a subsequent EOB on what was approved and why.

52Thus, the respondent’s EOB was non-compliant with s. 38(8), and therefore the consequences under s. 38(11) are triggered.

The September 28, 2022, OCF-18 for a chronic pain assessment in the amount of $2,300.00

53I find that the EOB, dated December 5, 2022 was compliant with s. 38(8) of the Schedule, and therefore is not payable under s. 38(11). The applicant has also not met her onus that the proposed chronic pain assessment is reasonable and necessary.

54The applicant argues that both EOBs dated December 5, 2022 was non-compliant with s. 38(8) because the respondent did not identify what her injuries are and why her injuries do not warrant a chronic pain assessment.

55The respondent argues that it was compliant with s. 38(8) because it cited the findings and medical opinion of Dr. Ballard.

56In its EOB, dated December 5, 2022, the respondent provided the following reasons for this OCF-18:

We’re unable to determine whether the recommendations on your OCF 18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time…

The OCF-18 dated September 28, 2022 recommends chronic pain assessment. As per section 44 report dated September 9, 2022, Dr. Tonya Ballard indicated “During the assessment conducted on May 27, 2022, approximately three months post-accident, Ms. Onsare reported a 50% improvement in her accident related complaints. Her injuries appeared to be soft tissue in nature and further recovery was anticipated. We require an independent examination to determine if the OCF-18 is reasonable and necessary from the injuries sustained in the motor vehicle accident on February 26, 2022.

57The respondent’s EOB provided specific reference to the applicant’s medical condition, being that the applicant reported 50% improvement in her accident related complaints and that her injuries appeared to be soft tissue in nature, which formed the basis for the respondent’s decision to deny the chronic pain assessment. I acknowledge that the applicant argues that she expected a detailed description of the injuries she sustained and a detailed explanation on why her injuries do not warrant a chronic pain assessment. However, I find that the reasons cited by the respondent were clear and sufficient to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. I find that this reason satisfies the requirement, well-established in the jurisprudence, that an insurer provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant’s file, to which an insured person can respond: see 16-003316 at para 22. Reasons should enable a claimant to make an informed decision about whether to challenge the insurer’s determination and pursue her claims. Here, the respondent referred to the IE report of Dr. Ballard, where the applicant reported 50% improvement and her injuries appeared to be soft tissue in nature, and therefore determined that the chronic pain assessment was not reasonable and necessary.

58As the respondent was compliant with s. 38(8), the applicant has to establish that the OCF-18 is reasonable and necessary under s. 15 of the Schedule. She made no submissions on the reasonableness and necessity of the OCF-18. Therefore it follows she is not entitled to the OCF-18.

59Accordingly, I find that the respondent was compliant with s. 38(8) and the applicant has not established on a balance of probabilities that the OCF-18 is reasonable and necessary.

The applicant is entitled to interest

60Pursuant to section 51 of the Schedule, the applicant is entitled to interest for all the OCF-18s with the exception of the chronic pain assessment.

ORDER

61For the reasons outlined above, I find that:

i. The applicant is entitled to the OCF-18 for chiropractic, massage, acupuncture, and physiotherapy services dated June 28, 2022, for the unapproved amount plus interest in accordance with s. 51 of the Schedule.

ii. The applicant is entitled to the OCF-18 for physiotherapy, massage, acupuncture, and chiropractic services, dated September 28, 2022, in the amount of $2,227.73, plus interest in accordance with s. 51 of the Schedule.

iii. The applicant is entitled to the OCF-18s for aqua therapy, exercise equipment, pool rental and chiropractic services, dated August 9, 2022 and a neurological assessment dated August 16, 2022, plus interest in accordance with s. 51 of the Schedule.

iv. The applicant is entitled to the April 1, 2022 OCF-18 for psychological services with a remaining balance of $2,244.23, plus interest in accordance with s. 51 of the Schedule.

v. The applicant is entitled to the September 28, 2022 OCF-18 for kinesiology and exercise equipment with a remaining balance of $145.48, plus interest in accordance with s. 51 of the Schedule.

vi. The applicant is not entitled to the September 28, 2022, OCF-18 for a chronic pain assessment in the amount $2,300.00. The applicant is also not entitled to interest in accordance with s. 51 of the Schedule.