Licence Appeal Tribunal File Number: 23-009067/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:
Fatima Abdulla
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Malcolm Zoraik, Counsel
For the Respondent: Suzanne Clarke, Counsel
HEARD: By way of written submissions
OVERVIEW
1Fatima Abdulla, the applicant, was involved in an automobile accident on June 6, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant barred from proceeding to a hearing for attendant care benefits (“ACBs”) and assistive devices because the applicant failed to attend insurers’ examinations (“IEs”) under s. 44 of the Schedule?
SUBSTANTIVE ISSUES
3The substantive issues in dispute are:
i. Is the applicant entitled to ACBs in the amount of $6,000.00 per month from July 4, 2023, and ongoing?
ii. Is the applicant entitled to $1,905.50 ($6,535.65 less $4,630.15 approved) for registered social work services proposed by Brain Injury Rehabilitation Inc. in a treatment plan/OCF-18 (“plan”) denied on July 24, 2023?
iii. Is the applicant entitled to $2,351.52 ($6,911.77 less $3,765.09 approved) for psychological services proposed by Pinnacle Health Network & Assessments in a plan denied on November 27, 2023?
iv. Is the applicant entitled to $5,164.01 for assistive devices proposed by Advanced Home Health Care in a plan denied on September 13, 2023?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is barred from proceeding to a hearing for ACBs and assistive devices.
5The applicant is not entitled to the remainder of the plans listed at issues ii and iii.
6The applicant is not entitled to an award or interest.
PRELIMINARY ISSUE analysis
7I find that the applicant is barred from proceeding to a hearing for attendant care benefits and assistive devices because she did not attend for IEs for which proper notice was given under s. 44(1).
8Section 44(1) sets out that 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, for the purpose of assisting an insurer to determine if the insured is or continues to be entitled to a benefit, but not more often than is reasonably necessary.
9Pursuant to s. 55(1) of the Schedule, an insured shall not apply to the Tribunal if the insured has not complied with a s. 44 request.
Respondent’s submissions and evidence
Attendant care benefits
10The respondent submits that on July 11, 2023, it received the applicant’s Form 1 dated July 4, 2023 recommending that she receive ACBs in the amount of $10,423.86 per month. The Form 1, completed by Inna Rozenfeld, occupational therapist (“OT”), indicated that the applicant required assistance with dressing/undressing, grooming, preparing, serving, and feeding meals, mobility, hygiene, responding in an emergency, co-ordination of attendant care, exercise, administering medication and bathing.
11The respondent sent a letter to the applicant dated July 24, 2023, advising that she was required to undergo an IE to address the Form 1. The letter indicates that in Dr. Shariff Dessouki’s catastrophic impairment report dated February 15, 2023, the applicant reported that she required assistance from her children with most tasks, however a Form 1 dated July 18, 2022 indicated that she was independent with a number of tasks, including mobility tasks and bathroom hygiene tasks. The letter indicates that it is reasonable to request an IE to address her current level of function. The respondent requested that the applicant attend a psychological examination on July 31, 2023; a physiatry examination on August 23, 2023, and an OT examination on September 7, 2023, to address her entitlement to ACBs.
12An email dated July 28, 2023 to the respondent from the applicant’s counsel indicates that the applicant was refusing to attend the physiatry and psychological examinations because the respondent had already designated the applicant as being catastrophically impaired. The letter goes on to state that the applicant will only agree to undergo an assessment with an OT if the respondent approves the claim for ACBs pending the assessment.
13The respondent submits that the applicant did not attend the OT examination scheduled for September 7, 2023 to address ACBs, and that the applicant’s lawyer requested that the examination be re-scheduled. In evidence is a letter to the applicant dated September 13, 2023, re-scheduling the examination to October 24, 2023.
14Also in evidence is a letter to the applicant dated October 10, 2023, confirming that the applicant did not attend the IE scheduled for September 26, 2023, and re-scheduling a physiatry assessment for November 14, 2023 to address the assistive devices and ACBs. The respondent filed with the Tribunal an email from the applicant’s counsel dated October 10, 2023, advising that the applicant would not attend a physiatry assessment.
15The respondent sent a letter to the applicant dated October 26, 2023, confirming that the applicant did not attend the IE scheduled for October 24, 2023 to address her entitlement to ACBs and assistive devices, and rescheduling an IE with an OT on October 31, 2023.
16The respondent submits that the IE scheduled for October 31, 2023 was not completed because the interpreter and the applicant spoke different dialects. The respondent submits that it re-scheduled the OT examination to address the applicant’s entitlement to ACBs and assistive devices to December 14, 2023.
17Prior to the OT examination on December 14, 2023, the respondent sent a letter to the applicant dated December 6, 2023, informing her that since she did not attend the IEs scheduled for September 26, 2023, and November 14, 2023, she was no longer entitled to receive ACBs effective December 15, 2023, pursuant to s. 42(14) of the Schedule. In the letter, the respondent indicates that it would re-schedule the IE on the condition that the applicant confirm within ten business days that she would attend the re-scheduled appointments and provide an explanation with respect to why she did not attend the previous IEs.
Assistive devices
18The respondent indicates that the applicant submitted a plan dated August 25, 2023 proposing assistive devices in the amount of $5,164.01.
19The respondent sent a letter to the applicant dated September 13, 2023, requesting that the applicant attend IEs to address the plan for assistive devices. An assessment was scheduled for September 26, 2023 with a physiatrist and on October 24, 2023 with an OT. The letter indicates that the Dr. Dessouki’s report dated February 15, 2023 indicated that the applicant’s cervical and lumbar spine range of movement in terms of flexion, extension, lateral flexion and rotation were within normal limits; and that she had full shoulder, elbow, wrist, hand and ankle range of movement in all planes bilaterally. The letter to the applicant indicates that it is reasonable to request an IE to address the need for the assistive devices further to the applicant’s current level of function.
20The respondent submits that on September 21, 2023, it reminded the applicant that she was required to attend a physiatry examination on September 26, 2023 to address the assistive devices. In evidence is an email from the applicant’s counsel to the respondent dated September 21, 2023, indicating that the applicant would not attend for any IEs except for one with an OT to address the Form 1. The letter further requests that the respondent refrain from scheduling other IEs except with an OT.
21As indicated above, the respondent sent a letter dated October 10, 2023 to the applicant, confirming that the applicant did not attend the IE scheduled for September 26, 2023, and re-scheduling a physiatry assessment for November 14, 2023 to address the assistive devices. The applicant’s counsel sent the respondent an email dated October 10, 2023, advising that the applicant would not attend a physiatry assessment.
22The respondent sent a letter to the applicant dated October 26, 2023, confirming that the applicant did not attend the IE scheduled for October 24, 2023 to address her entitlement to ACBs and assistive devices, and rescheduling an IE with an OT on October 31, 2023.
23As indicated above, the IE scheduled for October 31, 2023 was not completed because the interpreter and the applicant spoke different dialects, and the respondent re-scheduled the OT examination to address the applicant’s entitlement to ACBs and assistive devices to December 14, 2023.
The applicant’s duty under s. 44(1)
24The respondent submits that the applicant has a duty to participate in IEs that are reasonable and necessary and there must be a reasonable explanation for the non-attendance. The respondent submits that its request that the applicant attend OT and physiatry assessments to address her entitlement to ACBs and assistive devices was reasonable.
25The respondent argues that, prior to receiving the Form 1 dated July 4, 2023, it had only two OT reports dated February 4, 2020, and February 15, 2023. It submits that the most recent report dated February 15, 2023 was completed solely for the purpose of a catastrophic impairment assessment, and did not include any recommendations for how much attendant care assistance the applicant required.
26The respondent further submits that a physiatry assessment was required to address assistive devices and ACBs because the more recent physiatry examination completed by Dr. Dessouki, which addressed catastrophic impairment, indicated that the applicant did not sustain any musculoskeletal impairments because of the accident. The respondent submits that since it accepted that the applicant was catastrophically impaired due to her psychological impairments, which gives the applicant access to increased ACBs, it was reasonable for the respondent to obtain second opinions on the amount of assistance she required and the need for assistive devices.
27The respondent submits that an OT is not permitted to diagnose, and as such the additional assessments were reasonable to comment on the reasonableness and necessity of the assistive devices and to provide diagnoses for the OT’s benefit in responding to the Form 1.
Applicant’s submissions and evidence
28The applicant argues that the respondent claims that it received the Form 1 on July 11, 2023, however it did not provide evidence that it received the Form 1 later than July 5, 2023. As such, the applicant submits that the respondent’s notice on or after July 24, 2023 is not in compliance with s. 42(3) of the Schedule, which sets out that the insurer shall respond with a notice to the insured within 10 business days. The respondent has directed me to the top of the Form 1, which indicates that it was submitted via HCAI at 3:42 p.m. on July 11, 2023. As such, I find that the respondent’s notice was given within ten business days of receipt of the Form 1.
29The applicant further submits that the respondent’s denial of benefits did not include specific details of the applicant’s condition forming the basis of the denial, relying on a Tribunal decision that refers to the decision of Smith v. Co-operators General Insurance Co., 2002 SCC 30 (“Smith”). In Smith, the Supreme Court held that the refusal to pay a benefit must contain straightforward and clear language, directed towards an unsophisticated person; it must outline the dispute resolution process and the relevant time limits that govern the process; and it must provide reasons for the denial.
30The applicant also submits that it was the respondent’s assessor who cancelled three separate scheduled assessments, and it cannot rely on these cancellations to argue non-compliance. I am not persuaded by this submission, because the applicant did not direct me to any correspondence in this regard. Further, in reply, the respondent submits that an assessment scheduled for November 25, 2022 had to be rescheduled because the assessor was involved in a car accident, and that this was an OT assessment to determine whether the applicant’s injuries were catastrophic, and not in relation to the issues in dispute. The respondent submits that it is not relying on the November 25, 2022 examination to argue that the applicant did not comply with s. 44.
31The applicant also submits that that the respondent was obligated to respond to the Form 1 with a s. 44 OT assessment, and that a psychologist and a physiatrist are not the appropriate assessors for attendant care needs. I am not persuaded by this submission as the applicant has not directed me to any authority in this regard.
32The applicant further submits that the respondent’s refusal to pay the ACBs before it obtained a s. 44 report is not in compliance with s. 42(6) of the Schedule, which mandates that the insurer shall begin to pay ACBs within ten business days after receiving the assessment of attendant care needs. Section 19(1) of the Schedule sets out that the ACBs must be incurred. As such, I find that the respondent was only obligated to pay ACBs pursuant to s. 42(6) that were incurred. The applicant has not directed me to evidence that the ACBs in dispute have been incurred.
33The applicant also submits that in the respondent’s letters dated September 13, 2023 and October 26, 2023, it did not allege that the applicant “failed to attend,” but rather that the IEs “did not take place.” The applicant submits that she was always willing and available to participate in an in-home OT assessment to determine her attendant care needs, however the respondent did not provide such an opportunity to the applicant despite repeated requests to do so.
Analysis and Conclusions
The applicant is barred from proceeding to a hearing for attendant care benefits and assistive devices
34I find that the applicant is barred from proceeding to a hearing for attendant care benefits and assistive devices because she did not attend for IEs for which proper notice was given under s. 44(1).
35With respect to the applicant’s argument that the respondent’s denials were improper, I find that the notices with respect to the ACBs and the assistive devices complied with the test set out in the Smith decision. The notices provided clear medical reasons for the IEs in straightforward and clear language; they outlined the consequences of failing or refusing to attend the IEs; and they attached the procedures to dispute the respondent’s determination, as well as the relevant time limits that govern the process. Further, I find that the notices confirmed details of the examination, including the dates, times, and locations.
36While I acknowledge that the applicant in this case has been determined to be catastrophically impaired, the onus remains on the applicant to establish that she attended reasonable IE assessments.
37With respect to the examination scheduled for September 26, 2023 and November 14, 2023 with a physiatrist to address the plan for assistive devices, I find that this was a reasonable request considering Dr. Dessouki’s report dated February 15, 2023 indicating that the applicant had full, active ranges of motion. In these circumstances, I find that it was reasonable for the respondent to request an assessment to address the need for the assistive devices, given the applicant’s current level of function. The applicant did not provide evidence that she attended. In fact, the email from the applicant’s counsel to the respondent dated September 21, 2023, indicates that the applicant would not attend for any IEs except for one with an OT to address the Form 1.
38With respect to the examination scheduled for November 14, 2023 with a physiatrist to address the applicant’s eligibility for ACBs, I find that, given the conflicting reports with respect the applicant’s level of need for assistance in the Form 1 dated July 18, 2022 and in Dr. Shariff’s report dated February 15, 2023, this was a reasonable request to determine the applicant’s current level of function and the amount of assistance she required. The applicant did not provide evidence that she attended. In fact, an email from the applicant’s counsel dated October 10, 2023, advises that the applicant would not attend a physiatry assessment.
39Based on the evidence before me, I find that the applicant did not attend the IEs on September 26, 2023 and November 14, 2023 and is therefore barred from proceeding to a hearing for the attendant care benefits and assistive devices in dispute.
40To 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.
The applicant is not entitled to $1,905.50 ($6,535.65 less $4,630.15 approved) for registered social work services
41The applicant has not demonstrated on a balance of probabilities that the remainder of the plan for registered social work services is reasonable and necessary.
42The plan was prepared by Ms. Rozenfeld on July 7, 2023. The goals of the plan are pain reduction, increased range of motion, increase in strength, to engage the applicant in physical rehab, social and cognitive activities, to help the applicant access the community as part of overall quality of life, to return to activities of normal living, and to provide a structured bi-weekly rehab support worker intervention to address social, mental, and physical stimulation and community reintegration. The total cost of the plan is $6,535.65, which includes “documentation, support activity” (twice), “brokerage, service,” “planning, service,” “training, cognition, and learning (skills),” provider travel time to treatment, sundries, and claimant transportation to treatment.
43The applicant submits that she is entitled to all the benefits in dispute because she is catastrophically impaired. The applicant submits that the services of a rehab social worker were recommended by Ms. Rozenfeld in her OT assessment dated June 19, 2023. The applicant submits that she submitted her claims in accordance with the Schedule and regulations. Further, the applicant submits that her assessors opined the need for these benefits to assist the applicant with her recovery and reintegration processes. The applicant submits that the respondent refused to provide funding without any medical and reasonable grounds.
44The respondent submits that it denied $1,905.50 of the plan, partially approving the proposed costs for the “documentation, support activity,” and the training and learning skills fees. It submits that it approved 1.5-hour sessions as opposed to three hours, which it considered to be excessive. The respondent submits that it approved the plan based on the maximum hourly rate of $119.92 for an OT under the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“PSG”).
45The applicant did not make submissions with respect to the reasonableness and necessity of the additional costs for “documentation, support activity” or the three-hour sessions. As noted above, the onus is on the applicant to demonstrate that the plan is reasonable and necessary. For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that the remainder of the plan for registered social work services is reasonable and necessary.
The applicant is not entitled to $2,351.52 ($6,911.77 less $3,765.09 approved) for psychological services
46The applicant has not demonstrated on a balance of probabilities that the remainder of the plan for psychological services is reasonable and necessary.
47The plan was prepared by Dr. Leon Steiner, psychologist, on November 3, 2023. The goals of the plan are pain reduction, to return to pre-accident level of physical and psychological functioning, and to return to activities of normal living. The total cost of the plan is $6,911.77, which includes “counselling, mental health and addictions,” (sixteen sessions) “planning, service” (seventeen times), and “documentation, support activity” (twice).
48The applicant submits that she is entitled to all the benefits in dispute because she is catastrophically impaired. The applicant submits that psychological treatment was recommended by Ms. Rozenfeld in her OT assessment dated June 19, 2023. The applicant submits that she submitted her claims in accordance with the Schedule and regulations. Further, the applicant submits that her assessors opined the need for these benefits to assist the applicant with her recovery and reintegration processes. The applicant submits that the respondent refused to provide funding without any medical and reasonable grounds.
49The respondent submits that it denied $2,351.52 of the plan, partially approving counselling sessions for one hour as opposed to the 1.5 hours proposed, at the hourly rate for psychologists set out in the PSG. Further, it denied the proposed planning and preparation costs, taking the position that these are administration fees under the PSG, and that it is not liable to pay such charges.
50The applicant did not make submissions with respect to the reasonableness and necessity of the 1.5-hour sessions proposed, or the planning and preparation costs. Again, the onus is on the applicant to demonstrate that the plan is reasonable and necessary. For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that the remainder of the plan for psychological services is reasonable and necessary.
Interest
51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
52The 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. Since no benefits were unreasonably withheld, the applicant is not entitled to an award.
ORDER
53For the above reasons, I find:
i. The applicant is barred from proceeding to a hearing for ACBs and assistive devices.
ii. The applicant is not entitled to the remainder of the plans listed at issues ii and iii.
iii. The applicant is not entitled to an award or interest.
iv. The application is dismissed.
Released: April 15, 2025
Laura Goulet
Adjudicator