Citation: May v. Cooperators General Insurance Company, 2025 ONLAT 23-008321/AABS

Licence Appeal Tribunal File Number: 23-008321/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:

Nathan May

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Francesca Rollo, Counsel Jennifer Schmidtz, Paralegal

For the Respondent: Daniel Himelfarb, Counsel

HEARD: By way of written submissions

OVERVIEW

1Nathan May, the applicant, was involved in an automobile accident on October 28, 2010, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $2,106.25 for an occupational therapy (“OT”) assessment proposed by Rehab First in a treatment plan dated May 30, 2023?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

3In an email dated July 29, 2024 addressed to the respondent and to the Tribunal, the applicant advised that he is withdrawing his claim for interest set out in issue iii, above.

RESULT

4The applicant is entitled to the treatment plan for an OT assessment, if incurred.

5The respondent is not liable to pay an award.

ANALYSIS

The applicant is entitled to the treatment plan for an occupational therapy assessment

6The applicant is entitled to the treatment plan for an OT assessment because the respondent’s denial is not compliant with s. 38(8) of the Schedule.

7The treatment plan was prepared by Robyn Carter, occupational therapist, on May 30, 2023. The plan proposes an OT in-home assessment, travel time, mileage, and the cost of the preparation of the treatment plan. The goals of the plan are pain reduction, to assess the applicant’s functioning and independence with activities of daily living, to return to activities of normal living and to facilitate functional participation in activities of daily living.

8The applicant submits that the respondent’s denial does not meet the requirements of section 38(8) of the Schedule.

9Section 38(8) provides that the insurer must reply to a plan within 10 business days, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies if the plan was incurred during the period of non-compliance.

10In evidence is the respondent’s denial letter dated June 13, 2023. The letter indicates that attendant care expenses incurred more than 104 weeks after the accident are not payable pursuant to s. 20(2) subject to subsection (3) of the Schedule, and therefore the treatment plan would be deemed not reasonable and necessary.

11Also in evidence is an email dated June 15, 2023 from Ms. Carter to the respondent. In the email, Ms. Carter requested that the respondent reconsider the denial, indicating that a Form 1 was not requested on the treatment plan, and that it is for an OT assessment only, and not attendant care benefits.

12The applicant submits that the respondent’s denial does not meet the requirements of s. 38(8) of the Schedule as it fails to address the benefit being claimed by the applicant, which is the OT assessment. The applicant further submits that the denial letter did not provide the required medical and all other reasons why the respondent considers the proposed goods and services not to be reasonable and necessary. The applicant submits that the denial is not clear and sufficient to allow an unsophisticated person to make an informed decision.

13The applicant submits that the respondent has made no further attempt to respond to the treatment plan, nor have they attempted to cure the defective denial.

14The applicant also relies on s. 3(8) of the Schedule in requesting that the Tribunal exercise its discretion to deem the cost of the OT assessment to be incurred, relying on the Divisional Court’s decision of Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”).

15The respondent submits that the disputed treatment plan is unclear in that it describes the applicant’s limitations with daily tasks and self-care tasks and the need for an assessment due to these limitations. The respondent further submits that the goal of the treatment plan is to facilitate functional participation in activities of daily living and that the language in the plan indicates that the applicant is seeking an assessment to determine attendant care needs.

16The respondent relies on the decision of Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) for the proposition that reasons for a denial are not required to be legally correct. I find that Turner is distinguishable as it stands for the proposition that a decision doesn’t have to be legally correct to give the insured person the information they need to challenge a denial, and it does not address an interpretation of s. 38(8) of the Schedule. Here, the issue is whether the denial complied with the express statutory requirements set out in s. 38(8), which is a different analysis.

17The respondent also relies on the decision of Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, where the Court of Appeal held that the insurer is not required to invent a medical reason for the denial where one did not exist. I find that this decision does not assist the respondent because in this case the respondent acknowledged in its submissions that it received two Disability Certificates dated February 7, 2013, and May 15, 2023 completed by the applicant’s family physician, Dr. Alan Gunning. The Disability Certificates indicate that the applicant is suffering from an anxiety disorder and depression because of the accident. Further, the treatment plan identifies the applicant’s accident-related impairments, including anxiety, depression, decreased motivation, decreased appetite, and sleep disturbance, among others. As such, I find that the respondent did have medical information upon which to base its denial.

18I am not persuaded by the respondent’s submissions that the treatment plan is unclear and that the language in the plan indicates that the applicant is seeking an assessment to determine attendant care needs. I have reviewed the treatment plan and I find that it clearly sets out in Parts 9(b)(i), 9(c)(ii), as well as in the “additional comments” section of Parts 12 and 13 that an OT assessment is proposed.

19I find that the respondent did not identify the goods and services it did not agree to pay for, i.e. an OT assessment, and did not give the medical and all other reasons for the denial of the OT assessment.

20Further, I find that the respondent did not provide evidence of having given a notice compliant with s. 38(8) after its denial letter dated June 13, 2023.

21I have considered the applicant’s argument that the Tribunal should deem the cost of the OT assessment to be incurred. After the Suarez decision was released, the Divisional Court clarified the interpretation of s. 38(8) in Aviva General Insurance Company v. Catic, 2022 ONSC 6000 (“Catic”). I find that I am bound by this decision. In Catic, the Divisional Court held that s. 38(11) compels an insurer who fails to provide the statutory notice called for in s. 38(8) to pay for all the items listed in the subject treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding.

22For the above reasons, I find that the applicant is entitled to the treatment plan for an OT assessment, if incurred, because the denial is not compliant with s. 38(8) of the Schedule.

Award

23The 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.

24The applicant submits that the respondent unreasonably withheld payment of the OT assessment, even though it was in possession of the applicant’s medical records supporting the reasonableness and necessity of the treatment plan. The applicant further submits that the respondent chose not to obtain a s. 44 assessment of the applicant as it relates to the proposed plan. The applicant also submits that his access to an OT assessment with the purpose of identifying occupational performance issues related to his symptoms and to assess his need for treatment has been adversely impacted by the denial. The applicant also points out that, after being alerted to its flawed denial of the treatment plan, the respondent did not further communicate its reasons for denial, nor did it attempt to cure the defective notice.

25The respondent submits that it is not required to schedule a s. 44 assessment, and that it is permitted to assess a claim based on the evidence that exists, and to deny the claim if there is insufficient evidence that it is reasonable and necessary.

26It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Regulation 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I find that the respondent’s behavior does not reach that high standard.

27Although I did find that the respondent contravened s. 38(8) of the Schedule in its denial of the treatment plan, I find that it was a mistake on the part of the insurer, and not the sort of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate conduct that I would deem to warrant an award.

28I find that in taking the position that the disputed plan is not reasonable and necessary, the respondent’s submissions refer to clinical notes and records Dr. Gunning, as well as those of the applicant’s psychotherapist, a prescription summary, and his school records. Further, the respondent is not obligated to conduct a s. 44 assessment. As such, I find that the respondent considered the evidence before it in adjusting the file and did not unreasonably withhold or delay the payment of benefits.

29For these reasons, I find that there is no basis for ordering an award under Regulation 664.

ORDER

30For the above reasons, I find:

i. The applicant is entitled to $2,106.25 for an OT assessment, if incurred.

ii. The respondent is not liable to pay an award.