Licence Appeal Tribunal File Number: 23-005268/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:
Tenisa Thomas
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Aleksa Pace, Counsel
For the Respondent: Jagdeep Khela, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Tenisa Thomas, the applicant, was involved in an automobile accident on September 6, 2020, 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, TD 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 $765.00 ($4,361.48 less $3,886.48 approved) for physiotherapy services, proposed by Health Bound Health Network in a treatment plan/OCF-18 (“plan”) dated April 20, 2021?
ii. Is the applicant entitled to $720.00 ($4,597.18 less $3,877.18 approved) for physiotherapy services, proposed by Health Bound Health Network in a plan dated September 16, 2021?
iii. Is the applicant entitled to $2,555.07 ($4,151.57 less $1,596.50 approved) for physiotherapy services, proposed by Health Bound Health Network in a plan dated February 10, 2022?
iv. Is the applicant entitled to $4,239.55 for psychological services, proposed by Health Bound Health Network in a plan dated June 8, 2022?
v. Is the applicant entitled to $2,789.17 ($4,385.67 less $1,596.50) for physiotherapy services, proposed by Health Bound Health Network in a plan dated August 11, 2022?
vi. Is the applicant entitled to $2,971.09 for occupational therapy services, proposed by Health Bound Health Network in a plan dated July 25, 2022?
vii. Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
3The parties indicate in their written hearing submissions that issue 3(iii) of the Case Conference Report and Order (“CCRO”) dated January 9, 2024, for psychological services in the amount of $4,329.55, proposed by Health Bound Health Network in a plan dated October 15, 2021 is withdrawn. Therefore, I have not included this issue.
4The parties provided documentation about the plans dated February 10, 2022 and August 11, 2022 for physiotherapy services. I have changed the dates of the plans in the listed issues in dispute to match the corresponding amounts in dispute as set out in this documentation.
5The applicant’s motion only listed the issues above as being in dispute, which was reflected in the motion order dated July 23, 2024. I find that the issue in the CCRO for physiotherapy services in the amount of $2,906.67, proposed by Health Bound Health Network in a plan dated June 23, 2023, is not before me in this hearing.
RESULT
6The applicant is not entitled to the outstanding amounts of $765.00 and $720.00 for transportation in plans dated April 20, 2021 and September 16, 2021, proposed by Health Bound Health Network.
7The applicant is entitled to $4,239.55 for psychological services, proposed by Health Bound Health Network in a plan dated June 8, 2022, and any applicable interest.
8The applicant is not entitled to the remaining disputed treatment plans as the applicant has not proven on a balance of probabilities that they are reasonable and necessary or that the denials were not compliant with s.38(8) of the Schedule.
9The applicant is not entitled to an award.
ANALYSIS
10To receive payment for a treatment plan 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. 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 same are reasonable.
11Sections 15(1)(g) and 16(3)(k) of the Schedule provide for medical and rehabilitation benefits that are reasonable and necessary which include transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant. Sections 15(2)(c) and 16(4)(f) provide that the insurer is not liable to pay medical and rehabilitation benefits for transportation expenses other than authorized expenses.
12Sections 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. Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and other reasons why it has considered any of the goods and services to not be reasonable and necessary.
13If an insurer fails to comply with its obligations under s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies. Second, s. 38(11)2 provides that is an 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 s. 38(8).
14The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.
Issue #1– Plan dated April 20, 2021 for the outstanding amount of $765.00
15I find that the applicant has not established that the outstanding balance of the plan dated April 20, 2021 is payable.
16Section 25(4) of the Schedule provides that an insurer shall pay for authorized transportation expenses incurred in transporting the insured person to and from an assessment or examination. Section 3(1) defines authorized transportation expenses as transportation expenses incurred only after the first 50 kilometres of a trip unless the insured person sustained a catastrophic impairment.
17The applicant submitted a plan dated April 20, 2021, for physiotherapy services in the amount of $4,361.48, proposed by Health Bound Health Network. The respondent partially approved the treatment plan in the amount of $3,886.48, which included all treatment, preparation, planning and documentation. The respondent denied transportation to attend treatment for $765.00.
18The applicant made no submissions regarding whether the outstanding amount for claimant transportation to treatment is reasonable and necessary and, instead, relied solely on her argument that the respondent’s denial was non-compliant under s.38(8) of the Schedule such that the outstanding amount of the treatment plan is payable.
19The applicant submits that the denial notice for plan dated April 20, 2021, for physiotherapy services was delivered beyond 10 business days after the respondent received the plan. The applicant further submits that the respondent failed to provide reasonable explanations in its denial notice for the plan.
20The respondent partially denied the plan for physiotherapy services dated April 20, 2021 by way of letter dated May 14, 2021. This was within 10 business days after receiving the plan on April 30, 2021.
21The respondent stated in their denial letter dated May 14, 2021, that all treatment, preparation, planning and documentation of the plan is approved but the transportation to attend treatment is denied based on the information provided to date.
22The respondent submits that the transportation was denied pursuant to s.25(4) and 3(1) of the Schedule, which does not allow for the first 50 kilometres of a trip, unless the applicant is catastrophically impaired. The respondent submits that the applicant has not provided supporting evidence that she requires transportation over 50 kilometres.
23I find that the denial dated May 14, 2021, provides reasons specific to the applicant and indicated that the respondent did not have sufficient information to determine whether the claimant transportation to treatment is reasonable and necessary. Accordingly, I find that the denial complies with s.38(8) of the Schedule.
24Given that the respondent provided proper notice on May 14, 2021, and the applicant made no submissions as to why the outstanding amount for transportation is reasonable and necessary, I find, on a balance of probabilities, that the applicant has not met her burden to establish entitlement to the outstanding amount of this plan.
Issue #2 – Plan dated September 16, 2021 for the outstanding amount of $720.00
25I find that the applicant is not entitled to the unapproved portion of the September 16, 2021 plan.
26The applicant submitted a plan dated September 16, 2021, for physiotherapy services in the amount of $4,597.18, proposed by Health Bound Health Network. The respondent partially approved the treatment plan in the amount of $3,877.18, which included physiotherapy sessions and massage therapy sessions, preparation, planning and completion of the OCF-18. The respondent denied claimant transportation to treatment for $720.00.
27The applicant made no submissions regarding whether the outstanding amount for claimant transportation to treatment is reasonable and necessary and, instead, relied solely on her argument that the respondent’s denial was non-compliant under s.38(8) of the Schedule such that the remaining amount of the treatment plan is payable.
28The applicant submits that the denial notice for plan dated September 16, 2021, for physiotherapy services was delivered beyond 10 business days after the respondent received the plan. The applicant also submitted that the respondent’s denial was non-complaint with s.38(8) of the Schedule.
29The respondent partially denied the plan for physiotherapy services dated September 16, 2021, by way of letter dated October 25, 2021. This was within 10 business days after receiving the plan on October 8, 2021 (as Monday, October 11 was Thanksgiving and therefore excluded as a business day). The respondent stated in their denial letter dated October 25, 2021, that all treatment, preparation, planning and document of the plan is approved but the transportation to attend treatment is denied based on the information provided to date.
30The respondent submits that the transportation was denied pursuant to s.25(4) and 3(1) of the Schedule, which does not allow for the first 50 kilometres of a trip, unless the applicant is catastrophically impaired. The respondent submits that the applicant has not provided supporting evidence that she requires transportation over 50 kilometres.
31I find that the denial dated October 25, 2021, provides reasons specific to the applicant and indicated that the respondent did not have sufficient information to determine whether the claimant transportation to treatment is reasonable and necessary. The respondent stated reasons specific to the applicant and the disputed portion of the treatment plan, but they did not reference relevant sections of the Schedule. Accordingly, the denial complies with s.38(8) of the Schedule.
32Since the respondent’s denial was compliant with the Schedule and the applicant made no submissions as to why the claimant transportation to treatment is reasonable and necessary, I find that the applicant has not met her burden to establish entitlement to the unapproved portion of this plan.
33I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $720.00 of the September 16, 2021 plan.
Issue #3 – Plan dated February 10, 2022 for physiotherapy services
34I find that the applicant is not entitled to the unapproved portion of the February 10, 2022 plan.
35The applicant submitted a plan dated February 10, 2022, for 14 sessions each physiotherapy treatment; manual therapy; massage therapy; and preparation, in addition to a team meeting, file review, transportation and completion of the OCF-18, the amount of $4,151.57 proposed by Ivan Wong, physiotherapist of Health Bound Health Network. The respondent partially approved the treatment plan in the amount of $1,596.50 for 15 one- hour physiotherapy sessions and completion of the OCF-18 for $200.00. The unapproved amount of $2,555.07 was comprised of:
i. Manual therapy-14 sessions at a rate of $45.00 per session, totaling $630.00;
ii. Massage therapy- 14 sessions at a rate of $58.19 per hour at one hour each, totaling $814.66, plus tax of $105.91;
iii. Preparation-14 at a rate of $1.00 each, totaling $14.00;
iv. Team meeting-1 hour at a rate of $99.75 per hour;
v. File review- 1 hour at a rate of $99.75 per hour; and,
vi. Transportation -14 trips at $50.00, totaling $700.00, plus tax of $91.00.
a) Physiotherapy
36I find that since the respondent approved a total of 29 physiotherapy sessions (15 physiotherapy sessions for the February 10, 2022 plan, and 14 sessions for the August 11, 2022 plan as set out below), despite the confusion regarding the number of each sessions per plan, there has not been a denial of any of the proposed physiotherapy sessions.
b) Manual therapy
37The applicant made no specific submissions to address the question of whether manual therapy is reasonable and necessary.
38The respondent relies on the IE reports dated July 11, 2022 and September 22, 2022, by Dr. Ahmad Belfon, family medicine, in which Dr. Belfon concludes that only physiotherapy is reasonable and necessary.
39I find that the applicant has not established how the expenses for manual therapy are reasonable and necessary for her accident-related injuries, in addition to the amounts already paid for physiotherapy.
40I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $928.00 of the February 10, 2022 plan.
c) Massage therapy
41The applicant relies on an occupational therapy assessment of cognitive function: brain FX 360 report dated April 26, 2021, by Sarah Schultz, occupational therapist, a physiatry assessment report dated May 19, 2022, by Dr. Julia Warden and a letter dated November 22, 2023 by Ivan Wong, physiotherapist. The applicant submits that Sarah Schultz, Dr. Julia Warden, and Ivan Wong recommend that the applicant continue with massage therapy for pain relief.
42The respondent relies on the IE reports of Dr. Belfon in which Dr. Belfon concludes that only active therapy is reasonable and necessary for the applicant’s accident-related injuries.
43I find that the applicant has not provided an explanation for the additional amount of $920.57 for massage therapy beyond the amount which has already been paid for physiotherapy services. I find that the medical evidence does not corroborate that massage therapy is reasonable and necessary, except for the treatment provider, Ivan Wong, and Dr. Belfon concluded that the applicant would only benefit from physiotherapy. I find that Dr. Warden does not specifically recommend massage therapy, and although in a report dated April 26, 2021 Sarah Schultz focuses on the applicant’s cognitive function, she also indicates that the applicant is improving with active therapy.
44I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved portion of $920.57 of the February 10, 2022 plan.
d) Team meeting
45The applicant made no specific submissions to address whether a team meeting is reasonable and necessary.
46The respondent relies on the IE reports of Dr. Belfon, which indicate that other than the physiotherapy sessions and the cost of completion of the OCF-18, the remainder of the plan is not reasonable and necessary.
47I find that the applicant has not established how the expense for a team meeting is reasonable and necessary.
48I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $99.75 of the February 10, 2022 plan.
e) File review
49The applicant made no specific submissions to address the question of whether a file review is reasonable and necessary.
50The respondent made no specific submissions on file review, other than Dr. Belfon’s reports which do not support the remainder of the disputed plan.
51I find that the applicant has not provided an explanation for the additional amount of $99.75 for file review beyond the amount which has already been paid.
52I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved portion of $99.75 of the February 10, 2022 plan.
f) Transportation
53The applicant made no submissions regarding the amount for claimant transportation to treatment, the dates of treatment or the distances for claimant transportation to treatment to calculate the 50 km roundtrip deductible.
54The respondent made no submissions on claimant transportation to treatment.
55I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $791.00 for claimant transportation to treatment of the February 10, 2022 plan.
56In sum, I find that the applicant has not proven on a balance of probabilities, that she is entitled to the unapproved amount of $2,555.07 of the February 10, 2022 plan.
Was the respondent’s denial of the disputed treatment plan proper under Section 38(8) of the Schedule?
The respondent’s denial of the February 10, 2022 plan
57The plan dated February 10, 2022, for physiotherapy services by Health Bound Health Network. The respondent wrote to the applicant by letter dated February 17, 2022, denying the benefits within 10 business days of receiving the plan. The respondent’s denial stated that it requires an IE to determine whether further passive treatment is still required. The respondent scheduled an IE with Dr. Ahmad Belfon. In a subsequent letter dated August 3, 2022, the respondent enclosed a copy of the IE report of Dr. Belfon which concluded the plan is partially reasonable and necessary for the applicant’s accident-related injuries and approved the rehabilitation exercises with a physiotherapist and completion of the OCF-18 but denied the remainder of the plan.
58The applicant submits that the respondent’s denial was improper because it did not provide principled rationale for the denial, or for the applicant to submit to an IE. I find that the February 17, 2022 and August 3, 2022 denials were compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
59Given that the respondent provided a compliant denial, I find that the applicant has not met her burden to establish entitlement to the outstanding amount of this plan.
Issue #4 – Plan dated June 8, 2022 for psychological services
60I find on a balance of probabilities that the applicant has demonstrated that the proposed psychological services are reasonable and necessary for her accident-related injuries.
61The June 8, 2022 plan sought $4,239.55 for 15 one-hour mental health sessions, pre-and post session preparation, progress report and completion of the OCF-18, and was completed by Dr. Sharleen McDowall, psychologist. The goals of the treatment plan are to return the applicant to her activities of daily living.
62The applicant relies on the progress report dated June 7, 2022, by Dr. McDowall which indicates that although the applicant has made some improvement with treatment, she continues to have panic attacks, sleep disturbance, flashbacks, and other symptoms impairing her daily functioning. The applicant further submits that the respondent approved a subsequent plan dated March 23, 2023 by Dr. McDowall for psychological services.
63The respondent relies on the Insurer Examination (“IE”) report dated July 22, 2022 by Dr. Amena Syed, psychologist, and a catastrophic determination assessment report dated April 5, 2024 by Dr. Lawrence Tuff, psychologist. The respondent submits that Dr. Syed was unable to determine whether the proposed plan was reasonable and necessary without Dr. McDowall’s progress report or session notes. The respondent submits that Dr. Syed attributed the applicant’s symptoms to an unrelated incident of infidelity, incarceration, and criminal charge of her partner. The respondent further submits that, in Dr. Tuff’s catastrophic determination assessment report, the applicant does not meet the full criteria for psychological disorders in his catastrophic determination assessment report.
64I find that although Dr. Tuff opined that the applicant has posttraumatic stress disorder (“PTSD”) in partial remission, adjustment disorder, some criteria for major depressive disorder (“MDD”), and residual driving anxiety as a result of the accident, Dr. Tuff does not comment on the applicant’s psychological treatment. I find that Dr. Syed diagnosed adjustment disorder in her paper review report dated July 22, 2022. However, Dr. Syed commented that the applicant was at risk of developing PTSD and MDD without improvement, and she was unable to determine whether the disputed plan was reasonable and necessary in the absence of any progress reports or sessions notes.
65I find that Dr. McDowall diagnosed the applicant with PTSD, panic attacks, and specific phobia in progress report dated June 7, 2022. I find that Dr. McDowall indicates that the applicant’s symptoms have not subsided despite her participation in therapy, and she continues to require cognitive behavioural therapy. I find that the medical evidence suggests that the applicant developed psychological difficulties after the accident, which required psychological therapy, during and after the submission of the disputed treatment plan.
66I find that the applicant has demonstrated on a balance of probabilities that the proposed plan for psychological services is reasonable and necessary as a result of the accident.
Issue #5– Plan dated August 11, 2022 for physiotherapy services
67I find that the applicant is not entitled to the unapproved portion of the August 11, 2022 plan.
68The applicant submitted a plan dated August 11, 2022, for 15 sessions each physiotherapy treatment; manual therapy; massage therapy; and preparation, in addition to a team meeting, file review, transportation and completion of the OCF-18, the amount of $4,385.67 proposed by Ivan Wong, physiotherapist of Health Bound Health Network. The respondent partially approved the treatment plan in the amount of $1,596.50 for 14 one- hour physiotherapy sessions and completion of the OCF-18. The unapproved amount of $2,789.17 was comprised of:
i. Physiotherapy treatment-1 session at a rate of $99.75;
ii. Manual therapy-15 sessions at a rate of $45.00 each, totalling $675.00;
iii. Massage therapy- 15 one- hour sessions at a rate of $58.19 per hour, totaling $872.85, plus tax of $113.47;
iv. Preparation-15 at $1.00 each, totaling $15.00;
v. Team meeting- 1 hour at a rate of $99.75;
vi. File review-1 hour at a rate of $99.75; and,
vii. Transportation-16 trips at $45.00 each, totaling $720.00, plus tax of $93.60.
a) Physiotherapy
69I find that since the respondent approved a total of 29 physiotherapy sessions (15 physiotherapy sessions for the February 10, 2022 plan as noted above, and 14 sessions for the August 11, 2022 plan), despite the confusion regarding the number of each sessions per plan, there has not been a denial of any of the proposed physiotherapy sessions.
b) Manual therapy
70The applicant made no submissions to address the question of whether manual therapy is reasonable and necessary.
71The respondent relies on the IE reports dated July 11, 2022 and September 22, 2022, by Dr. Ahmad Belfon, in which Dr. Belfon concludes that only physiotherapy is reasonable and necessary.
72I find that the applicant has not established how the expenses for manual therapy are reasonable and necessary for her accident-related injuries, in addition to the amounts already paid for physiotherapy.
73I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $675.00 of the August 11, 2022 plan.
c) Massage therapy
74The applicant submits that Sarah Schultz, Dr. Julia Ward and Ivan Wong have provided opinions that massage therapy is reasonable and necessary for pain relief.
75The respondent relies on the IE reports of Dr. Belfon, in which Dr. Belfon concludes that only active therapy is reasonable and necessary for the applicant’s accident-related injuries.
76I find that the applicant has not provided an explanation for the additional amount of $986.32 for massage therapy beyond the amount which has already been paid for physiotherapy services. I find that the medical evidence does not corroborate that massage therapy is reasonable and necessary, except for the treatment provider, Ivan Wong, and Dr. Belfon concluded that the applicant would only benefit from physiotherapy. I find that Dr. Warden does not specifically recommend massage therapy, and in report dated April 26, 2021, although Sarah Schultz focuses on the applicant’s cognitive function, she also indicates that the applicant is improving with active therapy.
77I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved portion of $986.32 of the August 11, 2022 plan.
d) Preparation
78The applicant made no submissions to address whether preparation time is reasonable and necessary.
79The respondent made no specific submissions on preparation time other than Dr. Belfon’s denial of the remainder of the plan.
80I find that the applicant has not established how the expenses for preparation time are reasonable and necessary.
81I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $15.00 of the August 11, 2022 plan.
e) Team meeting
82The applicant made no specific submissions to address whether a team meeting is reasonable and necessary.
83The respondent relies on the IE reports of Dr. Belfon, which indicate that other than the physiotherapy sessions and the cost of completion of the OCF-18, the remainder of the plan is not reasonable and necessary.
84I find that the applicant has not established how the expense for a team meeting is reasonable and necessary.
85I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $99.75 of the August 11, 2022 plan.
f) File review
86The applicant made no submissions to address the question of whether a file review is reasonable and necessary.
87The respondent made no specific submissions on file review other than Dr. Belfon’s reports which do not support the remainder of the disputed plan.
88I find that the applicant has not provided an explanation for the additional amount of $99.75 for file review beyond the amount which has already been paid.
89I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved portion of $99.75 of the August 11, 2022 plan.
g) Transportation
90The applicant made no submissions to address the question of whether she is entitled to the amount for transportation to treatment, the dates of treatment or the distances for transportation to treatment to calculate the 50 km roundtrip deductible.
91The respondent made no submissions to address whether the applicant is entitled to transportation to treatment.
92I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $813.60 for transportation to treatment of the August 11, 2022 plan.
93In sum, I find that the applicant has demonstrated on a balance of probabilities that she is entitled to the unapproved session of physiotherapy in the amount of $99.75. I find that the applicant has not proven on a balance of probabilities, that she is entitled to the unapproved amount of $2,689.42 of the August 11, 2022 plan.
Was the respondent’s denial of disputed treatment plan proper under Section 38(8) of the Schedule?
The respondent’s denial of the August 11, 2022 plan
94The applicant submits that the respondent’s denial was improper because it did not provide principled rationale for its denial or for the applicant to submit to an IE. The applicant makes no submissions regarding the language in the respondent’s denial letters of August 25, 2022 and October 5, 2022.
95I find that the respondent stated in the August 25, 2022 denial, that based on the applicant’s injuries and treatment received to date, they require a s.44 assessment to determine whether the proposed plan is reasonable and necessary. I find that in the October 5, 2022 denial, the respondent provided a copy of the IE report dated September 22, 2022, by Dr. Ahmad Belfon. The respondent further stated that the applicant has not reached maximum medical improvement, and they approved physiotherapy exercises, and cost of completion of the OCF-18.
96I find that the denials were compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
97I find the applicant has not met her burden to establish entitlement to the outstanding portion of this plan. I find there was a compliant denial of the outstanding amount of the plan dated August 11, 2022.
Issue #6 – Plan dated July 25, 2022 for occupational therapy services
98I find on a balance of probabilities that the applicant is not entitled to plan dated July 25, 2022.
99The July 25, 2022 plan sought $2,971.09 for 6 one and a half-hour occupational therapy sessions, pre-and post session preparation, communication with claimant and team, progress report, file review and completion of the OCF-18 and was completed by Sarah Schultz, occupational therapist. The goals of the treatment plan are to optimize independence, return to functioning; return to activities of daily living; return to modified work activities; and return to pre-accident work activities.
100The applicant relies on the report dated May 19, 2022, by Dr. Julia Warden, physiatrist, and the plan dated July 25, 2022, by Sarah Schultz. The applicant submits that the disputed plan will address her traumatic brain injury and neurocognitive functioning as a result of the accident.
101The respondent relies on the IE report dated November 16, 2022, by Atul Kaul, occupational therapist. The respondent submits that Atul Kaul determined that the applicant has received adequate occupational therapy education, and she has reached her maximum therapeutic potential.
102I find that the disputed plan does not list neurocognitive functioning as an injury or goal in the disputed plan. I find that Dr. Warden indicates that the applicant reported that her appointments with the occupational therapist are mainly by telephone. The applicant also reported to Dr. Warden that the occupational therapist advised her she has memory difficulties which are now 70% improved. I find that the applicant reported to Dr. Warden that she feels unable to return to work due to her anxiety symptoms. I find that Dr. Warden does not provide corroborative evidence in support of the disputed plan.
103I find that Atul Kaul indicates that the applicant reported that her family physician advised that a return to work in January 2023 may be a possibility, depending on the advice of her psychologist, and she is working on exposure therapy with her psychologist. I find that Atul Kaul found that the applicant is independent in her activities, and her psychologist has not yet initiated a return-to-work program.
104I find that the applicant has not proven on a balance of probabilities that she is entitled to the disputed plan for occupational therapy services.
Was the respondent’s denial of the disputed treatment plan proper under Section 38(8) of the Schedule?
The respondent’s denial of the July 25, 2022 plan
105The plan is dated July 25, 2022, for occupational therapy services by Health Bound Health Network. The respondent wrote to the applicant by letter dated August 15, 2022, denying the benefits within 10 business days of receiving the plan on August 10, 2022. The respondent’s denial stated that it requires an IE to determine whether further passive treatment is still required. The respondent scheduled an IE with Atul Kaul, occupational therapist. In a subsequent letter dated November 22, 2022, the respondent enclosed a copy of the IE report dated November 16, 2022, by Atul Kaul, which concluded the plan does not address work readiness or other identified functional objective goal.
106The applicant submits that the respondent’s denial was improper because it did not provide a valid reason for the denial.
107I find that the respondent stated in the August 15, 2022 denial, that based on the applicant’s injuries and treatment received to date, they require a s.44 assessment to determine whether the proposed plan is reasonable and necessary. I find that in the November 22, 2022 denial, the respondent provided a copy of IE report dated November 16, 2022 by Atul Kaul. The respondent stated that in the absence of any concrete occupational therapy treatment plan to address work readiness or any other identified functional objective occupational therapy goal, the proposed plan is not reasonable and necessary.
108I find that the denials were compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
109Given that the respondent provided a compliant denial, I find that the applicant has not met her burden to establish entitlement to this plan.
Interest
110Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have found that the applicant is entitled to the plan dated June 8, 2022, for psychological services, in the amount of $4,239.55, she is also entitled to any applicable interest for delayed payments, pursuant to the Schedule.
111The applicant is not entitled to any further interest, since there are no other benefits which were withheld or delayed.
Award
112The 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.
113The applicant submits that since the respondent’s denials were non-compliant and some were late, the applicant’s benefits were unreasonably withheld and delayed.
114I find that the respondent did not unreasonably withhold or delay benefits, since their denials were based on valid medical opinions. Therefore, I find that the respondent is not liable to pay an award.
ORDER
115For the reasons stated above, I find that:
i. The applicant is not entitled to the outstanding amounts of $765.00 and $720.00 for transportation in plans dated April 20, 2021 and September 16, 2021, proposed by Health Bound Health Network;
ii. The applicant is entitled to the plan dated June 8, 2022, for psychological services, in the amount of $4,239.55, plus applicable interest;
iii. The applicant is not entitled to the remaining treatment plans in dispute as the applicant has not proven on a balance of probabilities that they are reasonable and necessary, or that the denials were not compliant with s.38(8) of the Schedule; and,
iv. The applicant is not entitled an award.
Released: May 2, 2025
Lisa Holland
Adjudicator