Licence Appeal Tribunal File Number: 23-007164/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:
Dionicia V Paulino
Applicant
and
AIG Insurance
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Adam Kuciej, Counsel
For the Respondent:
Kadey B. J. Schultz, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Dionicia Paulino, the applicant, was involved in an automobile accident on November 4, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, AIG Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing for substantive issue v, $2,460.00 for an orthopaedic assessment, because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
SUBSTANTIVE ISSUES
3The substantive issues in dispute are:
i. Is the applicant entitled to $2,628.40 ($3,674.50 less $1,046.10 approved) for medical services, proposed by Mackenzie Medical in a treatment plan/OCF-18 (“plan”) submitted on May 19, 2021?
ii. Is the applicant entitled to $3,925.71 ($4,153.68 less $227.97 approved) for assistive devices, proposed by Empowering U Occupational Therapy Services in a plan submitted on May 4, 2021?
iii. Is the applicant entitled to $2,230.40 for chiropractic services, proposed by Mackenzie Medical in a plan submitted on October 5, 2021?
iv. Is the applicant entitled to $1,418.24 for chiropractic services, proposed by Mackenzie Medical in a plan submitted on April 19, 2022?
v. Is the applicant entitled to $2,460.00 for an orthopaedic surgeon assessment, proposed by Dr. Tajedin Getahun in a plan submitted on February 15, 2023?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 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
4For the preliminary issue, I find the applicant is barred from proceeding with her claim for an orthopaedic assessment treatment plan in the amount of $2,460.00.
5I find that the applicant is entitled to the outstanding amount of $200.00 for documentation support activity in the treatment plan dated May 4, 2021, plus any applicable interest. The applicant is not entitled to the remaining outstanding amount of $3,725.71 for this plan.
6I find that the applicant is not entitled to the treatment plans dated May 19, 2021, October 5, 2021 and April 19, 2022.
7The applicant is not entitled to an award.
ANALYSIS
Preliminary Issue
The applicant is statute-barred from proceeding with her claim for an orthopaedic assessment
8I find that the applicant is statute-barred from proceeding with this application for a plan dated February 15, 2023, for an orthopaedic assessment due to non-compliance with s. 44 of the Schedule.
9Section 44(1) of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE. This section stipulates that this must not be done more often than is “reasonably necessary”.
10Section 44(9)(2)(iii) of the Schedule requires an insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.
11The requirements for a Notice of Examination (“NOE”) are set out in section 44(5) of the Schedule:
(a) 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,
(b) the medical and any other reasons for the examination;
(c) whether the attendance of the insured person is required at the examination;
(d) 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
(e) 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 section 44, but the insured person has not complied.
13These provisions of the Schedule make it clear that the applicant has a duty to participate in each IE that is reasonably necessary and for which there is a Schedule-compliant notice.
Parties’ Positions
14The respondent submits that the applicant failed to make herself reasonably available to an Insurer’s Examination (“IE”) as required under s. 44(9)(2)(iii) of the Schedule, and that she should therefore be barred from proceeding with her claim for an orthopaedic assessment. The respondent submits that it provided sufficient notice and reasons for the s. 44 IE, and that it required the examination to determine the applicant’s entitlement to the benefit in dispute.
15The applicant submissions focus on an argument that the respondent’s notice was deficient and did not provide sufficient medical or other reasons, and therefore, her non-attendance at an IE is not a bar to her application for an orthopaedic assessment under s.55 of the Schedule.
16I find that the applicant makes no submissions to address the question of whether the IE scheduled for April 3, 2023 with Dr. Yee was reasonably necessary or whether the applicant had a reasonable explanation for her non-attendance.
Is the notice of examination compliant with s. 44(5)(a)?
17I find that the respondent’s notices were compliant with s.44 of the Schedule.
18The respondent must prove that a notice of examination is compliant with section 44(5) of the Schedule in order to rely on it as a basis to seek a statutory bar under section 55. In seeking such a remedy, the respondent must ensure that it provides specific details of the applicant’s conditions, the benefit in dispute, and any section it relies upon. (See Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT); and 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)). The reasons must be clear enough so that an unsophisticated person can make a well-informed decision on whether to attend the examination.
19The applicant submits that the Notices of Examination (“NOE”) dated March 17, 2023 does not comply with s.44 because the respondent did not provide any medical reasons for the applicant to attend an assessment with Dr. Gilbert Yu Ming Yee.
20The respondent submits that its NOE refers to its denial letter dated February 23, 2023, which provides medical reasons for the denial and the assessment.
21I find the respondent’s notices dated February 23, 2023 and March 17, 2023 are compliant with the requirements of section 44 because they, individually and collectively, provide adequate reasons to support the need for the IEs and assist the applicant in determining whether she should attend. In its letter dated March 17, 2023, the respondent refers to its letter dated February 23, 2023, which provides a list of reasons for the denial and assessment. The February 23, 2023 letter includes references to medical evidence that the applicant has returned to her pre-accident activities, and the absence of recent medical documents in support of the proposed assessment.
22I find that given that the notices comply with section 44(5), the respondent can rely on the remedy available in section 55 of the Schedule to bar the applicant’s application for a plan dated February 15, 2023 for an orthopaedic assessment from proceeding before the Tribunal.
23The respondent submits that it is procedurally unfair for the application to proceed without the applicant having submitted to an IE. At its most basic, procedural fairness requires a party have an opportunity to be heard and that it be able to respond to the position taken against it. I find that to allow the applicant to proceed with her application on an orthopaedic assessment without having attended the scheduled IE for which a compliant notice was issued would be procedurally unfair to the respondent.
24For the reasons above, I find that the applicant is statute barred from proceeding with her claim for an orthopaedic assessment.
Substantive issues
Issue #1-OCF-18 dated May 19, 2021 for the outstanding amount of $2,628.40
25I find that the applicant has not established that she is entitled to the outstanding balance of OCF-18 dated May 19, 2021.
26To 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.
27Sections 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.
28The May 19, 2021 OCF-18 sought 10 one half-hour sessions of chiropractic manipulation; 10 one third-hour sessions of chiropractic therapy; 10 three quarter-hour exercise sessions; 10 one-third-hour sessions of massage therapy with exercise equipment and an assessment in the amount of $3,674.50. The goals of the plan were for pain reduction, increase strength and range of motion, return to activities of daily living and modified work activities. The respondent partially approved the treatment plan in the amount of $1,046.10. The outstanding amount of $2,628.40 was comprised of:
i. Chiropractic manipulation-10 sessions at a rate of $112.82 per hour at 0.5 hour each, totaling $564.10;
ii. Chiropractic therapy-10 sessions at a rate of $112.82 per hour at 0.33 hour each, totaling $372.30;
iii. Massage therapy- 10 sessions at a rate of $57.60 per hour at 0.33 hour each, totaling $192.00; and,
iv. Exercise equipment- 10 units of goods at a rate of $150.00 per unit, totaling $1,500.00.
a) Chiropractic manipulation
29I find that the applicant is not entitled to chiropractic manipulation because there is no medical evidence other than the disputed treatment plan that chiropractic manipulation is reasonable and necessary.
30The applicant relies on the clinical notes and records (“CNRS”) of the treatment provider, Mackenzie Medical Rehabilitation Centre, and Dr. Rajinder Atwal, family physician, in support of the outstanding portion of the plan. However, the only document that specifically recommends that the applicant receive chiropractic manipulation is the disputed plan.
31The respondent submits that the IE report dated November 8, 2021, by Dr. Deborah Rabinovitch, physiatrist, recommended that the applicant receive instruction on strengthening and stretching for her accident-related injuries. The respondent further submits that the goal of returning the applicant to her pre-accident job was already achieved before the disputed plan was submitted.
32I agree with the respondent. I find that in her report, Dr. Rabinovitch indicated that the applicant has returned to her pre-accident full-time duties as a nanny and housekeeper, and she can only attend treatment once per month. Dr. Rabinovitch opined that the applicant only required instruction on shoulder and scapular strengthening exercises, core stability exercises, and quadricep strengthening exercises. I find that the applicant has not established how the chiropractic manipulation is reasonable and necessary.
33I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $564.10 of the May 19, 2021 OCF-18.
b) Chiropractic therapy
34I find that the applicant has not provided any specific submissions or evidence to establish that the outstanding amounts for chiropractic therapy of $372.30 are reasonable and necessary.
35The applicant submits that she received two physical treatment sessions in May and June 2021, with improvement. The applicant argues that the plan in its entirety is reasonable and necessary.
36I find that the applicant has not provided an explanation for why the chiropractic therapy is reasonable and necessary or provided medical evidence in support of this disputed portion of the plan.
37I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved portion of $372.30 of the May 19, 2021 OCF-18.
c) Massage therapy
38I find that the applicant has not provided any specific submissions or evidence to establish that the outstanding amounts for massage therapy of $192.00 are reasonable and necessary.
39I find that the applicant has not provided an explanation for why the 10 sessions of massage therapy is reasonable and necessary or provided medical evidence in support of this disputed portion of the plan.
40I find that the applicant has not established on a balance of probabilities that she is entitled to the unapproved portion of $192.00 of the May 19, 2021 OCF-18.
d) Exercise equipment
41I find that the applicant has not provided any specific submissions or evidence to establish that the outstanding amounts for exercise equipment of $1,500.00 are reasonable and necessary.
42I find that the applicant has not provided an explanation for why the 10 units of exercise equipment are reasonable and necessary or identified the type of exercise equipment proposed in the plan.
43I find that the applicant has not established on a balance of probabilities that she is entitled to the unapproved portion of $1,500.00 of the May 19, 2021 OCF-18.
44In sum, I find that the applicant has not established on a balance of probabilities that the balance of the May 19, 2021 treatment plan of $2,628.40 is reasonable and necessary and, therefore, the applicant is not entitled to the remaining amount of this plan.
Issue #2- OCF-18 dated May 4, 2021 for the outstanding amount of $3,925.71
45I find that the applicant is entitled to the outstanding amount of $200.00 for documentation support activity of the May 4, 2021 OCF-18. I find that the applicant is not entitled to the remainder of the unapproved portion of the May 4, 2021 OCF-18.
46The applicant submitted an OCF-18 dated May 4, 2021 for 6 one and a half-hour sessions of occupational therapy life skills therapy, with provider travel time; documentation support activity; planning services; assistive devices, including orthotics, knee support, long-handles shoehorn, anti-fatigue mat, jar opener, stove timer, balance disk, wrist brace, gel packs, TENS unit, back belt, vacuum cleaner, long-handled duster, and Swiffer mop in the amount of $4,153.68, proposed by Empowering U Occupational Therapy Services. The respondent partially approved the treatment plan in the amount of $227.97. However, it is not clear which line items this included since the explanation of benefits has not been produced. The line items number 7 and 13 for orthotics, plus tax would appear to approximately total the amount approved of $227.97. The outstanding amount of $3,925.71 was comprised of:
i. Occupational therapy- 6 sessions at a rate of $99.75 per hour at 1.5 hour each, totaling $897.78;
ii. Provider travel time-3 trips at a rate of $99.75 per hour at 1.5 hour each, totaling $448.89;
iii. Planning services- 10 sessions at a rate of $99.75 per hour at 1 hour each, totaling $997.50;
iv. Documentation support activity- 6 sessions at a rate of $99.75 per hour at 0.33 hour each, totaling $197.52, and 4 hours at a rate of $99.75 per hour, totaling $399.00, together totaling $596.52;
v. Assistive devices- copper joint knee pain support, long handled shoehorn, anti-fatigue mat, jar opener, stove timer, balance disk, neoprene wrist brace, cold/hot packs, TENS unit, back belt, Swiffer vacuum, Swiffer duster, Swiffer mop, totaling $696.44, plus tax of $88.58; and,
vi. Documentation support activity-completion of OCF-18 for $200.00.
a) Occupational therapy
47I find that the applicant is not entitled to occupational therapy sessions because there is no medical evidence that corroborates that occupational therapy is reasonable and necessary.
48The applicant makes no submissions to address the question of whether the proposed occupational therapy sessions are reasonable and necessary.
49I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $897.78 of the May 4, 2021 OCF-18.
b) Provider travel time
50I find that the applicant is not entitled to the provider’s travel time because there is no corroborating medical evidence that provider travel time is reasonable and necessary.
51The applicant makes no submissions to address the question of whether the proposed provider travel time is reasonable and necessary.
52I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved portion of $448.89 of the May 4, 2021 OCF-18.
c) Planning services
53I find that the applicant has not provided any specific submissions or evidence to establish that the outstanding amounts for planning services of $894.00 are reasonable and necessary.
54I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the unapproved portion of $894.00 of the September 22, 2020 OCF-18.
d) Documentation support activity
55I find that the applicant has not provided any specific submissions or evidence to establish that the outstanding amounts for documentation support activity of $596.52 are reasonable and necessary.
56I find that the applicant has not established on a balance of probabilities that she is entitled to the unapproved portion of $596.52 of the May 4, 2021 OCF-18.
e) Assistive devices
57I find that the applicant has not provided any specific submissions or evidence to establish that the outstanding amount for assistive devices of $696.78, plus tax is reasonable and necessary.
58The applicant relies on the Occupational Therapy In-Home Assessment report dated March 25, 2021, by Justin Moy in support of her claim for assistive devices to complete her personal care and housekeeping independently.
59The respondent relies on the IE report dated November 8, 2021, by Dr. Rabinovitch and the IE report dated October 27, 2021, by Tianna Park, occupational therapist. The respondent submits that Dr. Rabinovitch determined that one assistive device is reasonable and necessary, however, the applicant reported to Tianna Park that she does not require the remaining assistive devices.
60I find that in Jason Moy’s report, the applicant reported that she returned to work as a nanny and housekeeper on November 9, 2020, and she last attended physiotherapy in September 2020. I find that the applicant reported to Tianna Park that she does not require the remaining assistive devices, and there was no plausible explanation provided in the report of Justin Moy for the proposed assistive devices, since the applicant is independent with all her personal care and housekeeping tasks.
61I find that the applicant has not established on a balance of probabilities that she is entitled to the unapproved portion of $696.78, plus tax of the May 4, 2021 OCF-18.
f) Documentation support activity
62I find that the applicant is entitled to the outstanding amount for documentation support activity of $200.00 for completion of the OCF-18.
63The applicant has not provided any specific submissions or evidence to establish that the outstanding amount for documentation support activity of $200.00 are reasonable and necessary.
64Although the respondent does not make any submissions regarding the cost of completion of the OCF-18 for this plan, it does rely on the IE report dated November 8, 2021, by Dr. Rabinovitch.
65I find that the IE report dated November 8, 2021 by Dr. Rabinovitch determined that the cost of completion of the OCF-18 for $200.00 and the cost of orthotics footwear are reasonable and necessary.
66I find that on a balance of probabilities, the applicant is entitled to the unapproved portion of $200.00 of the May 4, 2021 OCF-18.
67In sum, I find that the applicant is entitled to the outstanding amount of $200.00 in documentation support activity for the completion of the OCF-18. I find that the applicant has not established on a balance of probabilities that the balance of the May 4, 2021 treatment plan of $3,725.71 is reasonable and necessary and, therefore, the applicant is not entitled to the remaining amount of this plan.
Issue #3-OCF-18 dated October 5, 2021 for chiropractic services
68I find that the applicant has not established on a balance of probabilities that she is entitled to chiropractic services in the October 5, 2021 OCF-18.
69The applicant seeks payment for an OCF-18 dated October 5, 2021 in the amount of $2,230.40 for chiropractic therapy, active therapy, physical therapy and massage therapy, submitted by Mackenzie Medical Rehabilitation Centre.
70The applicant relies on the report dated December 4, 2021, by Dr. Tajedin Getahun, orthopaedic surgeon, and the report of Tianna Park. The applicant submits that she reported to Tianna Park that her pain symptoms are relieved by hot/cold therapy and massage therapy. The applicant submits generally that the disputed plan is reasonable and necessary to reduce the effects of her disability and facilitate her return to activities of daily living. The applicant further submits that the goals of the disputed plans are pain reduction, increase range of motion and strength and to return the applicant to her activities of daily living.
71The applicant makes no specific submissions to address whether the types of treatment proposed in the disputed plan are reasonable and necessary as a result of the accident. Further, the applicant has not provided a copy of the proposed plan for chiropractic services.
72The applicant argues that the respondent’s NOE dated January 27, 2022 does not comply with s.44(5)(a) of the Schedule, because the respondent did not provide any medical or other reasons for the IE. The applicant submits that the IE paper review report dated January 31, 2022, by Dr. Rabinovitch should be excluded from the hearing record. However, the applicant has not provided a copy of the NOE dated January 27, 2022. I find that it is not possible to determine whether a medical or other reason was provided by the respondent in the January 27, 2022 NOE, and the applicant makes no submissions regarding whether the respondent’s denial complies with s. 38(8) of the Schedule. Accordingly, I decline to exercise my discretion to exclude Dr. Rabinovitch’s report.
73The respondent relies on the IE paper review report dated January 31, 2022 by Dr. Rabinovitch, in which Dr. Rabinovitch opined that further facility-based treatment was not reasonable and necessary. The respondent submits that after the applicant returned to work on a full-time basis, she no longer attended massage therapy, and her doctor does not recommend further chiropractic treatment.
74I find that the applicant has not established on a balance of probabilities that she is entitled to the October 5, 2021 plan for chiropractic services because the medical evidence suggests that she has returned to her activities of daily living.
Issue #4- OCF-18 dated April 19, 2022 for chiropractic services
75I find that the applicant has not established on a balance of probabilities that she is entitled to chiropractic services in the April 19, 2022 OCF-18.
76The applicant submitted an OCF-18 dated April 19, 2022 for chiropractic services in the amount of $1,418.24 proposed by Mackenzie Medical Rehabilitation Services.
77The applicant relies on the CNRs of Dr. Atwal, the consultation report dated August 13, 2022 by Dr. Kafai Lai, orthopaedic surgeon, and the report of Dr. Getahun. The applicant submits that she reported to Dr. Lai that her right knee pain symptoms are relieved by physiotherapy and massage therapy. The applicant submits generally that the disputed plan is reasonable and necessary based on the recommendations of Dr. Atwal and Dr. Getahun.
78The applicant makes no specific submissions to address which type of treatment is proposed in the disputed plan, or whether each type of treatment is reasonable and necessary as a result of the accident. Further, the applicant has not provided a copy of the proposed plan for chiropractic services. Therefore, it is not possible to determine the listed items in the plan, or the goals of the plan.
79The respondent relies on the IE paper review report dated June 1, 2022, by Dr. Rabinovitch, in which Dr. Rabinovitch opined that further facility-based treatment was not reasonable and necessary. The respondent submits that the disputed plan is for passive chiropractic treatment. The respondent further submits that neither Dr. Lai nor Dr. Atwal recommend chiropractic treatment.
80I find that the applicant has not established on a balance of probabilities that she is entitled to the April 19, 2022 plan for chiropractic services because it is not clear what type of treatment is proposed in the plan, and the medical evidence suggests that she has returned to her activities of daily living.
81I find that the applicant has not proven on a balance of probabilities, that she is entitled to the April 19, 2022 treatment plan.
Interest
82Interest 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 outstanding amount of $200.00 for documentation support activity for the plan dated May 4, 2019, she is also entitled to any applicable interest.
Award
83Under 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.
84The applicant submits that the respondent failed to consider all the evidence in denying the applicant’s claims for benefits, which were unreasonably withheld and delayed.
85I find that the respondent did not unreasonably withhold or delay benefits, since their denials were based on valid medical opinions. Although, the respondent may have overlooked an approval for the documentation support activity in the amount of $200.00 for the May 4, 2019 plan, this does not rise to the level of conduct to support an award.
86I find that the respondent is not liable to pay an award.
ORDER
87For the reasons set out above, I find that:
i. The applicant is barred from proceeding with her claim for an orthopaedic assessment, in the amount of $2,460.00 dated March 18, 2020 by Mackenzie Medical Rehabilitation Services.
ii. The applicant is entitled to the outstanding amount of $200.00 for documentation support activity for the plan dated May 4, 2021, plus any applicable interest. The applicant is not entitled to the remaining outstanding amount of $3,725.71 of this plan.
iii. The applicant is not entitled to the disputed treatment plans dated May 19, 2021, October 5, 2021 and April 19, 2022.
iv. The applicant is not entitled to an award.
Released: May 2, 2025
Lisa Holland
Adjudicator