Licence Appeal Tribunal File Number: 23-009183/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:
Rowena Plourde
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Meghan Fyall, Counsel
For the Respondent:
Olivia Hajdas, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Rowena Plourde, the applicant, was involved in an automobile accident on June 15, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The Case Conference in this matter took place on January 31, 2024, and a Case Conference Report and Order (“CCRO”) was issued on February 9, 2024. At the time of the Case Conference and as of the date the parties’ filed their submissions, the issue of whether the applicant’s injuries fell within the Minor Injury Guideline (“MIG”) was in dispute as well as multiple treatment plans and attendant care benefits. On March 6, 2025, the applicant submitted a letter to the Tribunal advising that the MIG issue had resolved as well as issues 2, 3, 4 and 6 as set out in the CCRO. Therefore, these issues are not before me and have not been included in the list of issues below. The applicant is still seeking interest and an award with respect to three of the treatment plans that have been resolved. I have addressed this under the award section below.
PRELIMINARY ISSUES
3The preliminary issue to be decided is:
- Is the applicant barred from proceeding to a hearing for the following benefits, because the applicant failed to attend an insurer’s examination (“IE”) under s. 44 of the Schedule:
i. $100.25 ($2,200.00 less approved of $2,099.75) for an in-home assessment, proposed by Innovative OT Services, in a treatment plan, dated June 18, 2022;
ii. $6,033.60 for occupational therapy services proposed by Innovative OT Services in a treatment plan, dated June 18, 2022; and
iii. $6,911.80 for occupational therapy services proposed by Innovative OT Services in a treatment plan, dated March 23, 2023?
4As noted above, the applicant has withdrawn some of the treatment plans listed in the CCRO. Therefore, the preliminary issue will only address the three treatment plans stated above.
SUBSTANTIVE ISSUES
5The substantive issues in dispute are:
- Is the applicant entitled to the assessments and treatments proposed by Innovative OT services as follows:
i. $100.25 for the balance of an in-home assessment ($2,200.00 less approved of $2,099.75), in a treatment plan dated June 18, 2022;
ii. $6,033.60 for occupational therapy services, in a treatment plan dated June 18, 2022;
iii. $6,911.80 for occupational therapy services, in a treatment plan dated March 23, 2023; and
iv. $2,200.00 for a functional cognitive assessment, in a treatment plan, dated August 23, 2023?
Is the applicant entitled to attendant care benefits in the amount of $10,391.33 per month from April 18, 2023 to date and ongoing?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
6The applicant is not entitled to the treatment plans in dispute or attendant care benefits.
7The applicant is entitled to interest on the three treatment plans approved by the respondent from the date payment became overdue to the date that payment was made.
8The respondent is not liable to pay an award.
ANALYSIS
The applicant is barred from proceeding to a hearing on the three treatment plans dated June 18, 2022, June 18, 2022 and March 23, 2023
9The applicant is barred from proceeding to a hearing on the three treatment plans dated June 18, 2022, June 18, 2022 and March 23, 2022.
10Section 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 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.
11The requirements for a Notice of Examination (“NOE”) are set out in s. 44(5) of the Schedule:
If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
a. the medical and any other reason for the examination;
b. whether the attendance of the insured person is required at the examination;
c. the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
d. if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
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 with its request for attendance.
13The parties’ submissions deal with the applicant’s failure to attend the scheduled s. 44 assessments in respect to multiple treatment plans. As noted above, the applicant is now only claiming entitlement to three of the treatment plans, I will only be addressing the submissions and the NOE that deals with these specific treatment plans.
14The respondent submits that the applicant should be barred from proceeding with her claim for the three treatment plans in dispute because she failed to attend the scheduled s. 44 assessment, and she did not provide a reasonable explanation for her failure to attend. The respondent argues that the NOE dated May 11, 2023, was proper pursuant to s. 44(5) of the Schedule, including the medical and any other reasons required for the assessment. The respondent relies on the Tribunal decisions in DS v. The Personal Insurance Company, 2019 CanLII 94051 (ON LAT), and Nadia Shaikh v. TD Meloche Monnex, 2020 CanLII 34492 (ON LAT), to support its submission that the onus is on the insured person to establish a reasonable explanation for not complying with a s. 44 request.
15The applicant submits that the NOE provided by the respondent was boilerplate and lacks proper medical and other reasons for the denial. The applicant submits that the NOE does not provide any specific details regarding the applicant’s medical condition. The applicant submits that despite multiple correspondence to the respondent expressing her concerns about the deficient NOE, the respondent failed to respond to the correspondence.
16The applicant further submits that the respondent has also failed to prove that the insurer examination (“IE”) requested was reasonable and necessary. The applicant submits that the purpose of the IE was to determine MIG status, and the respondent was provided with ample evidence demonstrating non-MIG injuries. The applicant submits that the IE was not reasonable or necessary to determine MIG status as it was abundantly clear that the applicant did not suffer MIG injuries.
17I find that the NOE dated May 11, 2023, was proper and that the applicant’s failure to attend this assessment bars her from proceeding with this claim for the following reasons.
18I find that the NOE complies with s. 44(5) of the Schedule as it provides a clear and sufficient reason to allow the applicant to make an informed decision whether to attend the IE examination. I find that the NOE specifically referenced the applicant’s medical condition and referred to specific documentation that it had reviewed. The NOE also explained the reason for the assessment in relation to her medical condition and the benefits at issue. The respondent advised the applicant that upon review of the medical documentation, it required an independent assessor to determine the applicability of the MIG to determine whether the applicant’s injuries warrant the proposed treatment. I find that standing within the MIG is a medical reason because it indicates that the applicant’s impairments are minor, which is a medical definition in the Schedule. I do not accept the applicant’s submission that the respondent failed to provide any specifics about the applicant’s medical condition as the respondent noted that the applicant’s injuries were minor. I further find that the respondent provided the name, profession/designation, and speciality of the assessor as well as the date, time and location of the examinations.
19I find that the emails sent by counsel for the applicant, namely the email dated April 26, 2023, notes that the applicant would not be in attendance at the scheduled IEs, as the notice is wholly deficient and there is supportive medical documentation to confirm her removal from the MIG. As I have found that the NOE was not deficient, I do not find that this is a reasonable explanation for her non-attendance. I further find that the Schedule affords the respondent the right to an examination of the applicant to assess her condition as well as the medical documentation provided to date despite the applicant’s own assertion that the medical documentation supports her removal from the MIG. I therefore find that the request for an IE was reasonable and necessary.
20I further find that the applicant’s submission that the respondent failed to respond to her emails is not accepted. By correspondence dated June 9, 2023, the respondent sent a letter to the applicant advising that she had not attended the IE assessment on June 1, 2023. It advised the applicant that the treatment plans in dispute remain denied based on her non-attendance. It further advised that it was prepared to reschedule the IE on the condition that she confirm in writing that she will attend the re-scheduled appointment and that she provide a reasonable explanation as to why she was unable to attend the previous assessments within 10 business days. By correspondence dated July 21, 2023, the respondent advised the applicant that should she continue to claim that the NOE was deficient, she should file a LAT Application to resolve the dispute.
21For these reasons, I find that the applicant is statute barred from proceeding with her claim for the three proposed treatment plans in dispute under s. 55(1)(2) of the Schedule.
The applicant is not entitled to the treatment plan dated August 23, 2023
22The applicant is not entitled to the treatment plan dated August 23, 2023.
23The applicant claims entitlement to $2,200.00 for a functional cognitive assessment, proposed by Innovative OT Services, in a treatment plan, dated August 23, 2023.
24The applicant’s submissions do not address whether the treatment plan is reasonable and necessary. Instead, she claims entitlement under s. 38(8) of the Schedule.
25Sections 38(8) and 38(11) of the Schedule, set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply.
26Under s. 38(8), an insurer has the obligation to, within 10 business days after it receives a treatment plan, provide an insured person with a notice identifying the medical and all 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.
27If the insurer fails to give a notice in accordance with s. 38(8) in connection with a treatment and assessment plan, the following rules found in s. 38(11) apply: (a) the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies; and (b) the insurer must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period 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 subsection (8).
28The applicant submits that that the respondent failed to comply with the notice requirements pursuant to s. 38(8) of the Schedule, in denying the treatment plan in dispute. The applicant submits that the denial letter dated September 11, 2023, fails to provide a medical reason for the treatment plan in contravention of s. 38(8) of the Schedule. The applicant submits that the “reason” provided was boilerplate and non-specific.
29The respondent submits that its denial letter was sent to the applicant on September 11, 2023, advising that the treatment plan was denied because of the lack of medical documentation supporting a removal from the MIG. The respondent further submits that updated medical records from the applicant’s family doctor were requested. Despite the request for further records, these records were not provided until November 6, 2023, almost two months later. The respondent submits that due to the applicant’s failure to comply with s. 33(1)1 of the Schedule, the respondent is not liable to pay a benefit during the time of the non-compliance under s. 33(6) and requests that the denial remain upheld.
30I have reviewed the denial notice and find that it is in compliance with s. 38(8) of the Schedule. In the explanation, the respondent indicated that it was unable to approve the treatment plan on the basis that the applicant sustained a minor injury as a result of the accident. The respondent asked for updated records from the family doctor. I find that the explanation provides a clear and sufficient reason to allow the applicant to make an informed decision to either accept or dispute the denial. As stated above in my reasons, I find that standing within the MIG is a medical reason because it indicates that the applicant’s impairments are minor, which is a medical definition in the Schedule.
31The applicant has not addressed the respondent’s arguments in its reply submissions. Therefore, I will not deal with the respondent’s submissions with respect to s. 33(1) of the Schedule as I have already concluded that the notice was not deficient.
32For these reasons, I find on a balance of probabilities that the treatment plan, dated August 23, 2023 is not payable.
The applicant is not entitled to attendant care benefits
33The applicant is not entitled to attendant care benefits.
34The applicant’s submissions do not address whether the attendant care benefits in dispute are reasonable and necessary. Instead, she claims entitlement to attendant care benefits under s.38(8) of the Schedule.
35The applicant submits that on September 26, 2023, an Occupational Therapy In-Home Functional Assessment Report and Form 1 was submitted to the respondent assessing the total monthly attendant care benefit as $10,391.33. The applicant submits that on September 29, 2023, the respondent sent the Form 1 back to the applicant, denying the Form 1. The applicant submits that there was no denial letter provided and the respondent merely provided the Form 1 with the “do not approve” checked off. The applicant submits that there is no denial of the Form 1 which contravenes s. 38(8) of the Schedule and therefore she is entitled to attendant care benefits.
36The respondent submits that the applicant is not entitled to attendant care benefits because the applicant failed to attend the two IE assessments scheduled by the respondent in non-compliance with s. 44 of the Schedule. The respondent submits that by letter dated October 11, 2023, the respondent requested that two IE assessments be completed by Dr. Pankaj Bansal, GP on November 1, 2023 and with Ms. Lisa Slapinski, occupational therapist, on December 19, 2023. The respondent submits that the applicant did not attend either IE, and no explanation was provided by the applicant for her non-attendance. The respondent submits that it rescheduled the two IEs which the applicant also failed to attend. The respondent submits that the applicant should be barred from proceeding with this benefit as she has failed to comply with s. 44 of the Schedule.
37Section 38(8) of the Schedule sets out the strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. I find that s. 38(8) of the Schedule does not apply to claims for attendant care benefits and therefore the applicant cannot rely on s. 38(8).
38I find that upon review of the evidence provided, the applicant had not provided any other evidence to support that attendant care benefits should be payable by the respondent. I further find that the applicant has not provided any submissions in response to the respondent’s submission that she failed to attend the two scheduled IE assessments in contravention with s. 44 of the Schedule.
39For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to attendant care benefits.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
41The applicant has claimed interest on the substantive issues in dispute. As I have found that no overdue payment of benefits is owing to the applicant, no interest is owed.
42The applicant is also claiming interest on the treatment plans that the applicant advised were resolved in its letter dated March 6, 2025 as follows:
$1,995.25 for chiropractic services, proposed by Omni Health and Rehab Centre in a treatment plan dated December 12, 2022
$2,460.00 for a psychological assessment, proposed by Critical Trauma Therapy in a treatment plan dated April 24, 2023
$2,932.55 for physiotherapy services, proposed by Cambridge Physiotherapy and Rehab Centre in a treatment plan, dated August 23, 2023
43As the respondent has found that the applicant is entitled to the above three treatment plans in dispute, interest is payable on those plans in accordance with s. 51 of the Schedule from the date payment became overdue to the date that payment was made.
Award
44The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
45The applicant submits that the respondent is liable to pay an award under s. 10 because it has denied every treatment plan submitted on the basis of MIG and has failed to deny the treatment plans in non-compliance with s. 38(8) of the Schedule. The applicant submits that it has continuously provided medical evidence to the respondent which supports her removal from the MIG. Despite the applicant’s multiple requests to the respondent to remove the applicant from the MIG, the requests have gone unanswered. The applicant submits that the respondent’s conduct throughout the course of this claim has been unreasonable, and it has not complied with any of its good faith obligations.
46The respondent submits that it has complied with the provisions of the Schedule. It submits that it made its decisions reasonably based on the information provided and there has been no unreasonable withholding of benefits. The respondent submits that the applicant has not met her burden of proving that its denials constituted conduct that met the standard of unreasonable behaviour, described as “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”. The respondent further submits that the applicant failed to comply with numerous s. 33 requests made and failed to attend every section 44 assessment scheduled. The respondent submits that it handled the claim in good faith and to the best of its ability with the limited records and constant failures to attend assessments and, as such, an award is not warranted.
47I do not find that the respondent’s conduct in this matter was unreasonable, and I find that it has complied with its good faith obligations. I do not find that the applicant has pointed to sufficient evidence which suggests that the respondent failed to provide due consideration to the medical records. Despite the applicant submitting medical documentation and maintaining that her injuries fell outside of the MIG, the respondent was entitled under the Schedule to have the applicant assessed and for those records to be assessed by a medical professional. Based on the evidence provided, I find that the applicant did not attend for any of the requested assessments.
48With respect to the applicant’s claim for an award in respect of the treatment plans that were subsequently approved by the respondent, I do not find sufficient evidence for an award.
49For the reasons set out above, I find that the respondent is not liable to pay an award.
ORDER
50For the reasons outlined above, I find:
i. The applicant is not entitled to the treatment plans in dispute or attendant care benefits;
ii. The applicant is entitled to interest pursuant to s. 51 of the Schedule on the three treatment plans approved by the respondent from the date payment became overdue to the date that payment was made; and
iii. The respondent is not liable to pay an award.
Released: April 24, 2025
Melanie Malach
Adjudicator