Citation: Cosentino v. Security National Insurance Company, 2025 ONLAT 23-003803/AABS

Licence Appeal Tribunal File Number: 23-003803/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:

Nadia Cosentino

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Tal Eshel, Counsel

For the Respondent:

John Lykos, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Nadia Cosentino (the “applicant”) was involved in an automobile accident on May 22, 2018, 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 Security National Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2For context, the case conference report and order (“CCRO”) for this matter identifies ten issues in dispute. However, the applicant’s submissions indicate she is withdrawing issues 4, 7, and 8 as listed in the CCRO. While the respondent submits the applicant also withdrew issue 5, I find the applicant did not explicitly indicate such in her submissions. I therefore order that issue no. 5—pertaining to a treatment plan (“OCF-18”) for a catastrophic impairment determination assessment—proceed to the hearing despite the applicant failing to include it in her list of substantive issues at page three of her submissions.

3In addition to an award and interest claims, the remaining issues before the Tribunal include OCF-18s for various physical therapies, an OCF-18 specifically for physiotherapy, an income replacement benefit (“IRB”), and an OCF-18 for neurological assessment. The latter two benefits are the subject of a preliminary issue, which is addressed next.

PRELIMINARY ISSUE

Is the applicant statute-barred from disputing her IRB claim and neurological assessment OCF-18 because she failed to commence her application for these benefits within two years of the respondent’s refusal to pay the amount claimed?

4I find that the applicant’s IRB and neurological assessment claims may proceed to the hearing.

5Section 56 of the Schedule sets a time limit for proceedings on statutory accident benefit disputes that come before the Tribunal. Applications must be commenced within two years after the insurer refuses to pay the amount claimed. Section 7 of the Licence Appeal Tribunal Act (“LAT Act”) provides that the Tribunal may extend a limitation period if it is satisfied there are reasonable grounds to do so.

6It appears the respondent paid an IRB to the applicant during the first 104-weeks that followed her accident, and that the respondent subsequently requested the applicant attend multiple insurer’s examinations (“IEs”) to determine ongoing IRB entitlement during the post 104-week period. The IEs were conducted, and the assessors determined the applicant did not qualify for the IRB. The reports were delivered to the applicant by way of a written notice dated June 29, 2020, and the last IRB payment made by the respondent to the applicant was on July 10, 2020.

7The parties agree that the applicant filed her appeal of the respondent’s denials on April 5, 2023.

8The respondent submits that the applicant missed the two-year limitation period specified at section 56 of the Schedule for both her IRB and neurological assessment claims. The respondent explains that it was not served an application to dispute the IRB claim until about nine months after the end of the two-year limitation period that started when the respondent issued its June 2020 denial notice. Similarly, the respondent says the neurological assessment appeal was nearly two years late, as the OCF-18 was denied on May 28, 2019. The respondent further argues that there are no reasonable grounds for an extension to the limitation period under section 7 of the LAT Act, and relies on Tagoe v The Personal Insurance Company, 2022 CanLII 14928 ON LAT (“Tagoe”); and Sithamarappillai v Allstate Insurance Company of Canada, 2024 CanLII 23477 ON LAT (“Sithamarappillai”) to show that the lack of a bona fide intention to appeal, combined with a lengthy delay in filing an appeal, is sufficient to deny an extension.

9The applicant does not dispute that her IRB and neurological assessment appeals were brought outside of the two-year limitation period. However, she argues that section 56 of the Schedule does not apply because the respondent’s denial notices for both claims use “boilerplate wording” and are therefore deficient per St. Nicolous v. Intact Insurance Company, 2023 CanLII 122926 ON LAT (“St. Nicolous”); and Hedley v. Aviva Insurance Company of Canada, 2019, ONSC 5318 (“Hedley”). The applicant also submits that section 7 of the LAT Act entitles both her IRB and neurological assessment claims to proceed to a hearing because reasonable grounds exist to grant an extension. She supports her entitlement to a hearing by pointing to medical evidence that supports her IRB claim, which she continued to produce after her IRB was denied by the respondent.

10Given the positions of the parties, I will first consider the validity of the respondent’s notices, and then, if need be, analyze the applicability of section 56 of the Schedule and the reasonableness of the grounds on which the parties argue the extension afforded by section 7 of the LAT Act.

The respondent’s IRB denial notice is clear and unequivocal

11I find the two-year limitation specified at section 56 of the Schedule applies to the applicant’s IRB claim.

12In Turner v. State Farm Mutual Automobile Insurance Co., 2004 CanLII 13402 ON SCDC (“Turner DC”), the Divisional Court relies on the Supreme Court’s finding in Smith v. Co-operators General Insurance Co., 2002 SCC 30 (“Smith”) that a limitation period will not begin to run until there has been a proper refusal to pay benefits. The Court of Appeal’s review of Turner DC [see: Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 ON CA] (“Turner CA”)] held that the correct test to apply in determining whether a notice is proper is “clear and unequivocal.” It therefore follows that the two-year limitation period is engaged when the insurer issues a clear and unequivocal refusal to pay.

13This is a narrow test, which requires only that the notice be clear and unequivocal in its denial. I am not bound by Nicolous and find it does not assist here because it is inconsistent with Turner, which is binding. Similarly, I find Hedley does not support the applicant’s case because (1) a limitation period was not disputed in Hedley; and (2) Hedley stands for the adequacy of reasons offered to deny a benefit, which goes beyond the test of “clear and unequivocal” as discussed in Jean-Louis v Unifund Assurance Company, 2025 CanLII 3791 (ON LAT).

14I am persuaded that the respondent’s notice is clear and unequivocal in its denial of both the IRB and the neurological assessment. The IRB notice reads:

“Please be advised that we have made a determination that you are not entitled to the following specified benefit based on the report of the examination required by insurer under section 44 of the Statutory Accident Benefit Schedule: Income Replacement Benefit.”

In my view, this language clearly articulates the respondent’s decision to deny the IRB. And it leaves no doubt that the IRB will be discontinued, saying: “Please be advised that the benefit will be stopped effective July 11, 2020. Your final deposit will be on July 10, 2020.”

15Given the respondent issued a clear and unequivocal IRB denial notice to the applicant on June 29, 2020, and that the applicant did not file her appeal of the respondent’s decision until April 5, 2023, I agree that section 56 applies to bar the applicant’s claim.

The applicability of section 7 of the LAT Act as it pertains to the applicant’s IRB claim

16I find the applicant has established reasonable grounds to warrant an extension.

17In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (“Manuel”), the Divisional Court affirmed that the time for an appeal is not extended unless the applicant has shown certain factors apply [see, for example: Frey v. Macdonald, 1989 O.J. No. 236 C.A. (“Frey”)], those being: (1) a bona fide intention to appeal; (2) length of delay; (3) prejudice to the other party (i.e., the respondent); and (4) merits of the appeal.

Bona fide intention to appeal

18While I recognize the applicant continued to provide medical documents to the respondent after her IRB claim was denied, I do not accept this demonstrates a bona fide intention to appeal. This is because the applicant failed to show that two of five these documents were relevant to her IRB claim, including:

i. An attachment (i.e., a “CPP Approval letter”) in an email sent to the respondent by the law firm representing the applicant on June 27, 2024; and

ii. An application for determination of catastrophic impairment (“OCF-19”) completed by Dr. Ruma Chowdhury (family physician) on September 2, 2020.

19I place little weight on the Canada Pension Plan (“CPP”) email and OCF-19 as evidence of ongoing engagement on the applicant’s IRB claim. The CPP email does not address the applicant’s IRB claim and the attached CPP approval letter is not pinpointed in the applicant’s submissions. While I accept the OCF-19 signals an intention to apply for a catastrophic designation, it does little to persuade me of the applicant’s bona fide intention to pursue her IRB claim.

20I accept the remaining three medical documents establish the applicant was engaged with her IRB claim for at least six months after her IRB was denied, but find this evidence nevertheless falls short of demonstrating a bona fide intention to appeal. These documents include:

i. A December 2020 neurophysiatry assessment—conducted as part of a multidisciplinary assessment of catastrophic determination—by Dr. Robert Hastings (physiatrist), which says it is more likely than not that the applicant likely suffers from a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience;

ii. A December 2020 occupational therapy assessment—also conducted to support catastrophic impairment determination—by Ms. Melissa Paniccia that says the applicant’s ability to adapt to low and high-demand occupational contexts is compromised; and

iii. A December 2020 neuropsychological examination—part of the multi-disciplinary assessment for catastrophic impairment determination—by Dr. Lara Davidson (neuropsychologist), which says the applicant was not employable at the time of her assessment and, like Dr. Hastings, concluded the applicant met the post 104-week IRB test.

21While I accept these reports offer medical opinions relevant to the applicant’s IRB entitlement, I find this goes to merit and does not demonstrate a genuine intention to appeal the respondent’s decision. These opinions were available to the applicant since December 2020—18 months prior to the expiration of the limitation period—and the applicant did not point to evidence that established she subsequently voiced an intention to appeal her IRB claim at any time up to when she filed her application in April 2023. The applicant cannot rely on the respondent foregoing a review of its decision on IRBs upon receipt of the applicant’s catastrophic determination reports because waiting for the respondent to adjust the file does not mitigate her own delay in applying to the Tribunal.

22I find that the applicant’s submissions pertaining to the adjuster log notes are unsupported. She argues that the adjuster-of-record twice indicated that the applicant intended to appeal the respondent’s IRB decision—once in December 2020 and then again in November 2022. The applicant goes on to say that the adjuster indicated the approval of the CPP disability benefit would warrant a reconsideration of the denial, and that the applicant filed her appeal because, after producing the CPP approval letter, the respondent failed to re-address her IRB entitlement. However, submissions are not evidence, and the applicant did not point to the adjuster log notes in her submissions. I was further hampered in my search for these records because there is no discernable reference to adjuster log notes in the document index of the applicant’s preliminary issue reply, or the document brief provided with her initial written submissions for that matter. While two emails—one dated in December 2022 and the other in March 2023—pertaining to the applicant’s CPP application appear in the document brief of the applicant’s initial written submissions, neither of these mentions they are provided in support of the applicant’s IRB entitlement and therefore bear little weight as a bona fide appeal intention.

Length of delay

23In this case, the length of delay weighs against granting an extension. The two-year time limitation expired on June 29, 2022, and the applicant filed her appeal on April 5, 2023. This is a delay of about nine months, which I find to be substantial. Further, the applicant offered little explanation for the delay. Her submissions indicate that she was waiting for the respondent to adjust the file. I reject this argument because the respondent’s inaction had no impact on her ability to appeal the denied claim.

Prejudice to the respondent

24The applicant says she now bears an extra burden to pursue her application because the respondent mishandled her claim. In this context, the applicant emphasizes that she bears no fault for her untimely appeal and should not be penalized for a delay in appealing a decision that was wrongfully and improperly made. She adds that the prejudice caused to her by denying an extension of time should be given considerable weight, and that the respondent has not demonstrated it would be prejudiced by extending time to dispute her entitlement to a post 104-week IRB. With respect, these arguments merit little weight under the Manuel test because it is the applicant’s onus, as the party seeking the discretionary extension of time, to show the absence of prejudice to the respondent.

25The applicant’s contention that the delay does not prejudice the respondent’s ability to defend against her appeal of her IRB denial is unpersuasive. For example, the applicant says her appeal was brought well ahead of the five-year expiry of her claim and, as such, the respondent ought not to be surprised. In my view, this argument does little to mitigate the respondent’s concerns about being able to rely on a limitation period that provides certainty to the parties. I find the respondent’s concerns in this regard are underscored by the fact the applicant was legally represented at the time of her IRB denial. In my view, counsel ought to have been aware of the limitation period and the implications of delaying the appeal of the respondent’s IRB denial decision.

26The applicant relies on V.M.L. v. Aviva General Insurance Company, 2020 CanLII 12745 ON LAT (“V.M.L.”) and Tomec v. Economical Mutual Insurance Company 2019 ONCA 839 (“Tomec”) to support her submissions on prejudice to the other party. I did not find either authority to be persuasive in this case. The prejudicial implications of the delay considered in V.M.L.—which amounted to 13 business days—are distinguishable from this case where the delay is substantively longer at about nine months. The Tomec citation in the applicant’s submissions is incorrect. It cites paragraphs 42 and 43 of a decision that totals only 21 paragraphs and involves a narrow set of procedural issues pertaining to the timing that similar cases were to be heard by the Court—in other words, nothing to do with how the Manuel factors are applied. I therefore did not proceed to further consider the applicant’s arguments on Tomec.

27All that said, I find any prejudice flowing to the respondent from the delay is minimal at most. While I accept limitation periods exist to allow parties to organize and conduct themselves with certainty, I find that being unable to rely on the finality of a limitation date weighs little on the respondent’s ability to defend against the applicant’s claim in this case. The parties are not arguing that the available evidence has been invalidated by the passage of time and the respondent has obtained medical opinions on IRB entitlement in the post 104-week context. Further, I disagree that legislators intended the certainty of the two-year limitation to be absolute. Section 7 of the LAT Act supports a level of flexibility and discretion with how the limitation period is applied and jurisprudence has evolved to guide the Tribunal in this regard (i.e., the Manuel factors).

Merits of the appeal

28Under the Manuel test, the applicant simply bears the onus of establishing that there is some merit to the application. She does not need to prove her case on the merits. Further, “some merit” is a very low bar. The onus remains with the applicant, however, to show through evidence that this bar is met. On the face of it, the bulk of the applicant’s evidence is contemporaneous to 2018 and 2019 and pertains to her IRB entitlement during the first 104 weeks of disability. I find this evidence is likely to be of little value in assessing merit against the more stringent post 104-week test in a future period that starts no earlier than May 2020.

29However, the evidence contemporaneous to the post 104-week period includes several mental health assessments in May 2020, October 2022, and December 2022 that offer psychological diagnoses and, in one case, conclude the applicant’s functionality is impaired (i.e., she is unable to work). The applicant also relies on the medical opinions of her catastrophic impairment assessors—two of whom agreed she met the post 104-week IRB test—to demonstrate entitlement to her IRB claim.

30Given the evidence contemporaneous to the relevant period (i.e., from May 2020 onwards) that addresses her ability to work, and the opinions of at least two assessors who conclude her disability entitles her to an IRB, I agree the applicant has demonstrated there is some merit to her appeal.

Conclusion on the Manuel factors

31Weighing the Manuel factors holistically, I find the applicant has shown an extension of the limitation period under section 7 of the LAT Act is justified. While she failed to demonstrate a bona fide intention to appeal her IRB claim within the limitation period and delayed her application for about nine months, I find the prejudice to the respondent that results from this delay is not readily apparent and that there is some merit to the applicant’s appeal. In my view, the justice of this case demands an extension of time. I therefore find section 7 of the LAT Act applies and order the applicant’s IRB claim to proceed to the hearing.

The respondent fails to establish that its neurological assessment OCF-18 denial notice is clear and unequivocal

32I find that section 56 does not apply to the applicant’s neurological assessment claim because I could not review the respondent’s notice to determine if it was clear and unequivocal in its denial.

33The respondent did not include its May 2019 denial notice with its submissions and evidence, despite raising the issue of the limitation period. The index for the respondent’s document brief lists six denial letters, none of which dated in May 2019, and the respondent’s submissions do not pinpoint the notice in evidence. I note this because submissions are not evidence, and the respondent cannot prove its denial notice is clear and unequivocal—and in turn, that the two-year limitation period applies—without producing it for review.

34Given the lack of evidence to support the respondent’s position, I am not persuaded that section 56 of the Schedule applies to the applicant’s neurological assessment claim.

SUBSTANTIVE ISSUES

35The substantive issues that remain in dispute are:

i. Is the applicant entitled to an IRB in the amount of $334.65 per week from July 20, 2020 and ongoing?

ii. Is the applicant entitled to $5,197.41 for physiotherapy, massage, and active therapy proposed by Sandalwood Physiotherapy and Wellness Centre in an OCF-18 dated October 9, 2021?

iii. Is the applicant entitled to $920.00 for physiotherapy services, proposed by Sandalwood Physiotherapy and Wellness Centre in an OCF-18 dated October 14, 2021?

iv. Is the applicant entitled to $3,800.00 ($16,272.00 less $12,472.00 approved) for a catastrophic impairment determination assessment, proposed by Omega Medical Associates in an OCF 18 dated April 16, 2020?

v. Is the applicant entitled to $2,200.00 for a neurological assessment, proposed by Scarborough Physiotherapy and Rehabilitation Clinic in an OCF 18 dated May 1, 2019?

vi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

36The applicant is entitled to an IRB, with interest, from July 11, 2020 and onwards. The applicant is not entitled to any of the disputed OCF-18s, nor is the respondent liable to pay an award.

ANALYSIS

The applicant’s entitlement to an IRB

37I find the respondent wrongly discontinued the applicant’s IRB benefit.

38Section 37(2)(c) of the Schedule says—for instances where the respondent has required the applicant to undergo a section 44 IE—that the respondent shall not discontinue paying the applicant’s IRB unless the respondent has received the section 44 IE report and determined that the applicant is not entitled to the benefit. This is to be read in concert with section 37(4) of the Schedule, which requires the respondent to advise the applicant of its determination and the medical and any other reasons for its denial. Section 37(6) then goes on to require the respondent to set out those reasons in its notice within 10 business days after receiving the IE report.

39The Tribunal and Courts have held that an insurer’s “medical reasons” for denying a plan should engage the specific details about the insured’s condition forming the basis for the insurer’s decision. The reasons should also allow an unsophisticated person to understand why a benefit claim was denied and make an informed decision in response [see, for example: 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT); and M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT)].

40The applicant submits that the respondent’s June 2020 denial notice did not provide a medical or any reason for the IRB stoppage and simply stated:

“Please refer to the attached section 44 reports.”

41The respondent argues that its IRB denial notice is acceptable and relies on K.B. vs. TD Insurance Meloche Monnex, 2019 ONLAT 18-008965/AABS (“K.B.”) to show its notice complies with the Schedule. In K..B., which is not binding on me, the Tribunal confirmed the adequacy of a denial notice that referred the applicant to attached section 44 reports to provide the grounds for denial.

42The parties do not dispute that the respondent required the applicant to undergo a series of section 44 IEs to assess ongoing entitlement to an IRB in the post 104-week period. There are eight such reports, along with an executive summary, listed in the respondent’s evidence brief—all completed on June 23, 2020. As such, I accept the respondent required IEs under section 44 of the Schedule, and that section 37 of the Schedule applies.

43I find that the June 2020 notice fails to set out the respondent’s reasons for denying the applicant’s IRB entitlement and does little to assist the applicant in making an informed decision in response. The notice simply reads:

“The following is our explanation of the reasons you are not entitled to the benefits: Please refer to the attached section 44 reports.”

The problem with this approach is that the respondent’s opaque reference to the “attached section 44 reports,” offers no insight into the respondent’s reasons for denying the IRB. In my view, the general assertion that the IE reports do not support IRB entitlement offers no medical reason whatsoever and is simply an unsupported conclusion. I disagree that the premise offered in K.B. (i.e., that there is no provision in the Schedule to include the reasons for denial in the covering letter and not in the enclosed reports) applies to this case because section 37(6) of the Schedule specifies that the notice of determination must “set out” the medical and any other reasons for the respondent’s decision. This persuades me that the respondent should have at the very least, drawn attention to specific aspects of the IE reports upon which it was relying. The respondent’s failure to provide any detail about the applicant’s condition as described in these reports is fatal.

44While K.B. acknowledges that this manner of providing reasons is not ideal, I would go further in this case to say it runs counter to the Schedule’s consumer protection objective by hampering the applicant’s understanding of why her IRB entitlement had been denied as well as her ability to challenge the respondent’s decision in an informed manner.

45In conclusion, I find the respondent may not rely on its deficient notice to discontinue the applicant’s IRB. It follows then, that the applicant is entitled to payment of the IRB from July 12, 2020 and onwards. It follows that it is unnecessary to assess the applicant’s entitlement on the merits per section 6(2)(b) of the Schedule.

The applicant’s entitlement to any amounts incurred under the OCF-18s for physical therapies

46I am not persuaded that the disputed OCF-18s are reasonable and necessary.

47For context, these two OCF-18s share many similarities. Both are completed by Ms. Mamta Sharma (physiotherapist) on October 9, 2021. They list the same physical injuries (i.e., whiplash, sprains and strains of the spine, and headaches) and propose the same goals, which consist of pain reduction and an increase in strength and range of motion to facilitate a return to normal living and work activities. The differences lie in the proposed treatments. One of the OCF-18s proposes multiple therapies consisting of 14 one-hour massage sessions, 14 one-hour sessions of chiropractic manipulation, and 24 physio sessions. This treatment plan totals $5,197.41. The second OCF-18 totals $920.00 and proposes 24 sessions of personal care instruction by Ms. Sharma.

48To receive payment for an OCF-18 under sections 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. In this case, the parties agree that the respondent issued two denial notices for the disputed OCF-18s, one dated October 14, 2021, and the other October 18, 2021.

49The applicant submits that the respondent erred in denying both OCF-18s on the grounds that the $65,000.00 policy limit had been reached. The applicant explains that the respondent sent her an updated statement of benefits (dated March 22, 2024) that indicated she had used only $32,286.57 of the policy limit. The applicant reasons that, since this is only half of the amount she is entitled to claim for medical and rehabilitation benefits, the respondent should have approved the two OCF-18s for physical therapy because section 18(3)(a) of the Schedule does not apply to her claim. The applicant also takes the position that she is entitled to the OCF-18s because the respondent did not dispute the reasonableness and necessity of the proposed treatments.

50The applicant’s submissions also assert that the OCF-18s are reasonable and necessary because their goals include pain reduction, increased range of motion and strength, and a return to normal living and work activities. She says these goals make sense because she was diagnosed with chronic and continuous myofascial pain in her upper back and neck, as well as probable post-concussion symptoms, by Drs. Hastings and Chowdhury in June 2018. The applicant adds that her pain has been ongoing for more than five years post-accident, and that her consistent reports of pain in her medical records suggest her accident-related injuries have not resolved.

51The applicant relies on several authorities to support her case. She refers to 16-003921 v. Certas Home and Auto Insurance Co, 2018 CanLII 141005 ON LAT (“Certas HA”) to show pain reduction is a legitimate treatment goal where consistent complaints of pain—combined with a chronic pan syndrome diagnosis—are evident. The applicant also references 17-003735 v Certas Direct Insurance Company, 2018 CanLII 39445 ON LAT (“Certas Direct”) to show that pain reduction which increases strength is a reasonable goal. As well, the applicant cites 17-001981 v. RBC General Insurance Company, 2019 CanLII 18326 ON LAT (“RBC”) to establish that pain relief should not be overlooked when assessing the reasonableness and necessity of treatment.

52The respondent takes the position that it does not matter whether the proposed treatment is reasonable and necessary because there is no more room within the $65,000.00 limit for further approvals of treatment. The respondent adds that the applicant’s low utilization of her approved treatment (i.e., $32,392.19 in the six years that have elapsed since the accident) demonstrates a lack of need for any further benefits and relies on Baheeran v Security National Insurance Company, 2023 CanLII 84411 ON LAT (“Baheeran”) to support its position. In Baheeran, the Tribunal agreed that the lack of treatment utilized by the applicant during the claim period suggests that the applicant did not need further treatment.

Has the applicant reached the $65,000.00 threshold for medical benefits

53I do not agree that the applicant has reached her claim maximum of $65,000.00. Section 18(3) specifies the sum of the medical, rehabilitation and attendant care benefits paid shall not exceed $65,000.00 for any one accident. As such, I find the respondent may approve treatment that goes beyond the statutory limit without necessarily agreeing to pay for expenses incurred beyond the limit. This interpretation is supported in P.K. vs. Coseco Insurance Company, 2020 ONLAT 19-004126/AABS, where the Tribunal confirmed that the insurer was not liable to pay the incurred treatment costs for approved medical benefits that went beyond the limit. In this case, I distinguish between what has been paid and what the respondent characterizes as approved. The parties agree that $32,392.19 is the sum of what has actually been paid in medical benefits, and that $65,000.00 is the maximum liability to the respondent. I therefore agree with the applicant’s position that the respondent erred in denying both OCF-18s on the grounds that the $65,000.00 policy limit had been reached.

54Further, I find that Baheeran is not persuasive given the facts of this case. While I agree the Tribunal placed weight on the applicant’s under-utilization of her approved treatment in Baheeran, there were many other case-specific factors that also influenced the Tribunal’s decision. In my view, the utilization rate of approved treatment in this case is not sufficient, in and of itself, to show that the OCF-18s are not reasonable and necessary. I note too, that underutilization was not offered as a reason for denial in either of the notices issued by the respondent.

Are the OCF-18’s reasonable and necessary

55I am not persuaded as to the reasonableness or necessity of the disputed OCF-18s.

56I find the applicant’s accident-related pain complaints are not contemporaneous to the OCF-18s. The bulk of the evidence pertaining to the applicant’s physical injuries that she relies upon are 2018 and 2019 documents despite the OCF-18s being completed in 2021. For example, the disability certificate (“OCF-3”) completed by Jaspreet Kaur (physiotherapist) was completed in September 2018. Dr. Yael Friedman (neurologist) prescribed Gabapentin for headaches in November 2018. The Service Canada medical report—which notes the applicant is suffering from chronic neck pain and headaches that affect her activities of daily living—was completed in October 2018. And the clinical notes and records of Dr. Chowdhury that are referenced in the applicant’s submissions describe complaints of headaches in June and July of 2018. I find this medical evidence is of limited value when assessing OCF-18s completed two years later where there is scarce evidence that these symptoms persisted up to that time.

57The applicant asserts that she reported ongoing symptoms to Dr. Chowdhury. However, she did not pinpoint this evidence as required by the CCRO and this hindered my ability to assess her symptomology in the more than 100 pages that comprise these clinical notes and records. Similarly, I placed little weight on Dr. Hasting’s December 2020 neurophysiatry assessment. In my view, Dr. Hastings’ report supports the lack of medical evidence contemporaneous to the OCF-18s because the medical documents he relies on to inform the applicant’s medical history do not extend beyond 2018. The applicant failed to pinpoint where, in Dr. Hastings’ report, a diagnosis of “chronic and continuous myofascial pain affecting the neck and upper back and probable persistent post-concussion symptoms” is offered. While I was able to locate a diagnosis of “post-traumatic occipital headache, whiplash injury, and widespread myofascial pain,” this diagnosis was reportedly offered by Dr. Chowdhury on the day of the accident and is therefore of little value.

58While I accept the authorities advanced by the applicant indicate that pain relief, in and of itself, supports the reasonableness and necessity of physical therapy-based treatments, I find they are distinguished from this case where there is little evidence of ongoing and continuous pain contemporaneous to October 2021 when the disputed OCF-18s were proposed. And given the limited nature of the medical evidence to support ongoing headaches, neck pain, and back pain up to the time the OCF-18s were completed, I find the applicant has failed to establish that the goals and treatment proposed in the OCF-18s are reasonable and necessary. As such, the applicant is not entitled to these OCF-18s.

The applicant is not entitled to the OCF-18 for a catastrophic impairment determination assessment

59I find the applicant has not established the reasonableness or necessity of this OCF-18.

60As earlier mentioned, sections 15 and 16 of the Schedule set out the “reasonable and necessary” test for medical benefits, such as OCF-18s. For this matter, however, neither the applicant nor the respondent made submissions or led evidence pertaining to this OCF-18. As the onus falls to the applicant to prove a disputed OCF-18 is reasonable and necessary, it follows that she cannot prevail in the absence of making arguments and pointing to evidence that supports her claim. As such, I find the applicant is not entitled to this OCF-18.

The applicant is not entitled to the neurological assessment OCF-18

61I find the applicant has not demonstrated entitlement to this OCF-18.

62The legal threshold to meet on this issue, as previously articulated, is set out at sections 15 and 16 of the Schedule.

63The applicant submits that this OCF-18 is reasonable and necessary because of her ongoing headaches as mentioned in “various” medical reports, and because of the diagnoses offered by Drs. Neilank Kumar Jha (neurosurgeon) and Friedman. The applicant also submits this OCF-18 was recommended by Dr. Andrew Gomez Vargas (neurologist), who described the applicant’s difficulties as “clinically significant” and requiring a complete neurological assessment to clarify the appropriate diagnosis and cause of the problem. The applicant adds that the reasonableness and necessity of this OCF-18 is demonstrated by her incurring the assessment cost in August 2019.

64The respondent’s submissions offer no arguments on the reasonableness and necessity of this OCF-18.

65The applicant says this OCF-18 was recommended by Dr. Vargas. I disagree. I find the OCF-18 was completed by Altaf Khimji (physiotherapist) on May 1, 2019, and I was not pointed to evidence that establishes Dr. Vargas had any role in recommending the assessment. The only mention of Dr. Vargas I could locate in the OCF-18 is in Part 11 where he is identified as a health care provider, and in the additional comments section where Mr. Khimji notes that either Dr. Vargas or Dr. Richard Gladstone (physician) can conduct the assessment. In my view, this evidence falls short of showing that Dr. Vargas had reviewed the OCF-18, let alone recommended it.

66I find the reasonableness and necessity of this treatment plan is further diminished because its treatment goal had already been achieved prior to the OCF-18 being completed. Part 9 identifies that the treatment goal is to “determine prognosis and treatment options available to (the applicant) in relation to his (sic) headaches and impairments.” But as the applicant’s evidence establishes, her headaches had already been assessed by a neurologist (i.e., Dr. Friedman) in July and September of 2018 and a neurosurgeon (i.e., Dr. Jha) in September 2018. Dr. Friedman diagnosed migraine headaches and recommended treatment consisting of medication, massage therapy, physiotherapy, and hydrotherapy as well as possibly botulinum toxin injections through a pain clinic. Dr. Friedman referred the applicant to Dr. Jha for further assessment, who, in turn, diagnosed a traumatic brain injury which had progressed to post-concussive syndrome. Dr. Jha recommended treatment consisting of cognitive behavioural therapy with a psychologist, cognitive work conditioning with an occupational therapist, physiotherapy, driver anxiety retraining, massage therapy, acupuncture, medication, and mindfulness meditation. Dr. Jha further indicated he would see the applicant in follow-up after initiating the recommended treatments to re-assess and discuss a plan moving forward.

67I am persuaded that this evidence not only establishes that the goal of this OCF-18 for neurological assessment had already been met, but also that the applicant was recommended for ongoing consultation with Dr. Jha to assess her progress and plan her ongoing treatment accordingly. As such, I do not agree that the OCF-18 is reasonable and necessary.

Interest

68Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. I find interest is payable on the IRB. No interest is payable on the disputed OCF-18s because the applicant is not entitled to those medical benefits.

Award

69I find the respondent is not liable to pay an award.

70The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate” [see, for example: 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

71The applicant submits she is entitled to an award of 50 per cent of outstanding benefits payable because the respondent failed to respond to the OCF-18s in accordance with section 38(8) of the Schedule and did not address her IRB claim.

72The respondent submits the applicant has not met her onus to show the respondent’s conduct has risen to the threshold of meriting an award. In contrast, the respondent argues that it acted reasonably throughout the entire claim by approving medical benefits to the maximum allowable limit.

73Pertaining to the IRB claim, the applicant’s submissions do not point me to specific behaviours consistent with the respondent being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. In my view, was diligent in addressing the applicant’s IRB claim and acted reasonably by requiring IEs to determine whether the applicant’s IRB should continue into the post 104-week period. Further, the respondent was entitled to rely on the opinions of its experts. While the respondent’s IRB denial notice was indeed deficient and inconsistent with the consumer protection purpose of the Schedule, I find this conduct does not constitute a wilful attempt to frustrate the applicant’s claim and is therefore less than excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

74The applicant did not produce the notice pertaining to the neurological assessment and I therefore did not consider her argument in this regard.

75Given that the applicant is not entitled to the disputed OCF-18s, it follows that no award is payable for these benefits.

ORDER

76The applicant is entitled to an IRB, with interest, from July 11, 2020 and onwards. The applicant is not entitled to any of the disputed OCF-18s, nor is the respondent liable to pay an award.