Licence Appeal Tribunal File Number: 23-007162/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:
George Campbell
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Petrina Lewis, Paralegal
For the Respondent: Darrell March, Counsel
HEARD: By way of written submissions
OVERVIEW
1George Campbell, (the “applicant”) was involved in an automobile accident on July 18, 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 Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issues to be decided in the hearing are:
i. Is the applicant barred from proceeding to a hearing for issues 1(i), (iv), (viii), (ix) & (x) because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
ii. Is the applicant barred from proceeding to a hearing because he failed to attend an Examination under Oath as required under s. 33 of the Schedule?
SUBSTANTIVE ISSUES
3The substantive issues in dispute are:
- Is the applicant entitled to the treatment proposed by Active Rehab as follows:
(i) $2,431.43 for physiotherapy and massage services submitted by treatment plan on October 6, 2021?
(ii) $2,785.27 for chiropractic and massage services submitted by treatment plan on August 20, 2020?
(iii) $2,651.15 for chiropractic and massage services submitted by treatment plan on October 19, 2021?
(iv) $2,735.81 for chiropractic and massage services submitted by treatment plan on April 6, 2021?
(v) $2,611.86 for chiropractic and massage services submitted by treatment plan on January 19, 2021?
(vi) $1,299.53 for chiropractic and massage services submitted by treatment plan on July 14, 2020?
(vii) $3,368.06 for chiropractic and massage services submitted by treatment plan on October 18, 2019?
(viii) $2,933.02 for chiropractic and massage services submitted by treatment plan on November 3, 2022?
(ix) $2,682.23 for chiropractic and massage services submitted by treatment plan on April 26, 2022?
(x) $2,511.95 for chiropractic services submitted by treatment plan on August 24, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
I note that in the Case Conference Report & Order (“CCRO”), released on January 31, 2024 for issues 1(i),(ii), (iii), (iv), (v), (vi), (vii), (viii), and (ix), it was noted that the OCF-18s were for chiropractic services. Upon review of the OCF-18s, I note that the proposed services are for both chiropractic and massage services and that for issue 1(i) the services in dispute are for physiotherapy and massage services. As such, I have reflected this above for these issues.
RESULT
4With respect to the preliminary issues, I find that:
i. The applicant is barred from proceeding with issue 1(i) under s. 55(1)2 of the Schedule. The applicant is not barred from proceeding with issues 1(iv), (viii), (ix), and (x).
ii. The applicant is not barred from proceeding with the hearing because he failed to attend an Examination under Oath (“EUO”).
5With respect to the substantive issues, I find that:
i. The applicant is not entitled to the OCF-18s nor interest.
ii. The respondent is not liable to pay an award.
PROCEDURAL ISSUE
The updated clinical notes and records of Dr. L.D. Luftspring, will not be excluded from the record
6I deny the respondent’s request to exclude the updated clinical notes and records (“CNRs”) of Dr. Luffspring from the hearing record.
7The CCRO was clear that the deadline to produce the updated CNRs from Dr. Luftspring was on March 29, 2024.
8The respondent argues that the applicant did not produce the updated CNRs of Dr. Luftspring until July 2024. As a result, it argues that it has been severely prejudiced because it has lost the ability for assessors to review the updated documentation.
9I find that the applicant was non-compliant with the CCRO because he did not serve the updated CNRs of Dr. Luftspring until July 26, 2024. I am not persuaded by the respondent’s position that it has been severely prejudiced by the late production of these CNRs as argued. Notably, the respondent received these CNRs nearly a month before its submissions were due but it did not seek an adjournment of the hearing and did not take any steps to schedule an insurer’s examination (“IE”) with respect to these new records. Further, even if the respondent suffered prejudice, the evidence’s probative value outweighs it. Moreover, this delayed production will go to the weight to be given to the evidence.
10Finally, the respondent made a number of broad submissions that the applicant did not produce a balance of documentation and that it had brought a previous motion with respect to this issue. I note that a previous Motion Order was issued by the Tribunal on August 12, 2024, where the respondent’s relief that the Tribunal order the applicant to produce the documents as set out in the CCRO and to draw an adverse inference against the applicant for failure to produce this documentation was denied by the Tribunal. It is unclear from these submissions whether the respondent is also seeking to exclude the CNRs of Active Rehab and the prescription summary from JaneDal Pharmacy. In the event that the respondent is seeking to exclude the CNRs of Active Rehab and the prescription summary from JaneDal Pharmacy, I find that both these records were sent on July 5, 2023 and January 2, 2024, which is in accordance with the CCRO.
11For all these reasons, I decline the respondent’s request to exclude the updated CNRs of Dr. Luftspring.
ANALYSIS
Preliminary Issues
Is the applicant barred from proceeding to a hearing for issues 1(i), (iv), (viii), (ix) & (x)?
12I find that the applicant is barred from proceeding with issue 1(i) under s. 55(1)2 of the Schedule. I also find that the applicant is not barred from proceeding with issues 1(iv), (viii), (ix) and (x).
13Section 44 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 evoke its rights to an IE.
14The requirements for a Notice of Examination are set out in section 44(5) of the Schedule:
If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
a. the medical and any other reasons for the examination;
b. whether the attendance of the insured person is required at the examination;
c. the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
d. if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
15Pursuant to s. 55(1)2 of the Schedule, an applicant shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
16The respondent argues that the IEs were scheduled for issues 1(i), (iv), (viii), (ix) and (x) on December 7, 2021, January 18, 2022 and May 31, 2022, and the applicant did not attend. As a result, the respondent argues that the applicant should be barred from proceeding forward with these issues.
17The applicant argues that the respondent’s notices were non-compliant with s. 44(5) of the Schedule because they did not identify, list, and outline the medical condition and the basis for its decision.
(a) Issue 1(i)
18I find that the respondent’s notice of examination (“NOE”), dated November 24, 2021, was compliant with s. 44(5).
19The stated reasons for the general practitioner assessment were because a prior IE assessor indicated the applicant’s injuries were within the MIG and a review of the documentation suggested the same. As a result, the respondent required an IE to determine whether the proposed OCF-18 was reasonable and necessary. The respondent also identified information about the applicant’s condition that it did not have but required such as a progress report from the applicant’s treating clinic, CNRs from the applicant’s family physician, hospital CNRs, Pharmacy Summary, and Decoded OHIP Summary.
20I find that this NOE was compliant with s. 44(5) because it identified information about the insured’s condition that the insurer does not have but requires. Indeed, the NOE clearly states that a prior IE and a review of the documentation supports that the applicant’s injuries were within the MIG, and the insurer identified information it required from the applicant. I find the denial provided clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial.
21I acknowledge the applicant’s argument that the respondent was in possession of the CNRs from the applicant’s family physician, Dr. Luftspring and still did not reference these CNRs in the NOE. However, the evidence before me does not establish that the respondent possessed these CNRs in November of 2021, when the notice was sent. I have been provided with undated correspondence that states that the CNRs were mailed out on December 3, but the year was not provided. While the top of the correspondence notes the date of November 30, 2020, I find that this date relates to when the respondent requested the CNRs from Dr. Luftspring’s office and not when Dr. Luftspring responded to the correspondence. I make this finding because November 30, 2020 is the same date that the respondent requested the CNRs, and the correspondence of November 30, 2020 was four pages, meanwhile Dr. Luftspring’s CNRs were 85 pages in length. Further, the log note dated June 29, 2022 indicates that the respondent did not have a copy of the CNRs at that time, as the adjuster advised the applicant that it had no CNRs in its possession. In short, I find that the applicant has not established that the respondent had possession of Dr. Luftspring’s CNRs when the NOE was sent.
22The NOE further identified the name, title and designation of the person conducting the IE, as well as the date, time and location of the examination, in accordance with s. 44(5).
23The applicant does not raise any issues with respect to whether the IE is reasonably necessary. Rather, the applicant argues that no IE was booked for this issue, and as such, s. 55 is moot. I do not concur. As noted above, the respondent sent an NOE on November 24, 2021, in relation to this OCF-18, as it is clearly identified in the correspondence.
24Further, on May 16, 2023, the respondent sent a further correspondence to the applicant which advised him that he did not attend the rescheduled IEs for January 18, 2022 and May 31, 2022. Significantly, the respondent also advised the applicant that it would reschedule the IE if the applicant provided confirmation in writing that he would attend, and a reasonable explanation as to why he was unable to attend the previous assessments. Thus, the applicant’s argument that no IE was booked for this OCF-18 is without merit. The NOE of November 24, 2021 indicates that the insurer requires an IE for this OCF-18, and the applicant has not directed me to evidence to establish that he responded to the correspondence of May 16, 2023. As such, I find that the applicant failed to attend the scheduled IE without a reasonable explanation.
25The applicant also argues that an undated log note establishes that the respondent approved this OCF-18. I do not agree because in this undated log note, the OCF-18 is summarized and it is noted “AMT approved…” However, it is unclear to me what the abbreviation AMT stands for, and whether the subject OCF-18 was approved or not. Moreover, the applicant has not produced a copy of the correspondence from the respondent where this OCF-18 was approved. Rather, the correspondence indicates that the respondent denied the OCF-18 on November 24, 2021.
26Under s. 55(2) of the Schedule, the Tribunal has discretion to permit the applicant to proceed with his application despite not attending an IE. However, the applicant made no submissions on why the Tribunal should apply its discretion under s. 55(2). In light of this, I find that there is an insufficient basis to permit the application to proceed under the provision of s. 55(2) of the Schedule.
27Based on all these reasons, the applicant was non-compliant with s. 44, and therefore he is barred from proceeding with his claim for issue 1(i) under s. 55 of the Schedule.
(b) Issues 1(iv), (viii), (ix) and (x)
28I find that the applicant is not barred from proceeding with these issues in dispute.
29The respondent argues that the IE was reasonably necessary, and that since the applicant is non-compliant with s. 44(5) as he did not attend, then he is barred under s. 55 from proceeding with these issues.
30The Schedule is clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice. The respondent must first prove that the NOEs comply with s. 44(5) of the Schedule in order for it to rely on it as a basis to seek a statute bar under s. 55.
31Here, the respondent has not met its onus because it has not provided me with a copy of the NOEs that were sent under s. 44. Rather, the respondent produced correspondence of May 16, 2023, where it advised the applicant that he did not attend the rescheduled IEs for issues 1(x), and that the medical and all the other reasons were provided in previous correspondence of February 23, 2021 and November 26, 2021. However, the respondent did not tender a copy of the NOEs or the previous correspondence dated February 23, 2021 and November 26, 2021.
32As the respondent did not provide a copy of the NOEs, it cannot rely upon the remedy available in s. 55 because it has the onus to establish that the notice is compliant with s. 44. In order for an insurer to invoke its s. 44 right to an IE, it must first provide a legally sufficient notice pursuant to s. 44(5), which was not done here.
33To conclude, the applicant may proceed with issues 1(iv), (viii), (ix) and (x) because the respondent has not met its onus.
Is the applicant barred from proceeding to a hearing because he failed to attend an EUO?
34I find that the applicant is not barred from proceeding to a hearing because he failed to attend an EUO.
35Pursuant to section 33(2) an applicant is required to submit to an examination under oath if requested by an insurer. However, the consequence for non-compliance with section 33 is set out in section 33(6) -- that an insurer does not have to pay a benefit during the period of non-compliance.
36Section 55 of the Schedule identifies circumstances when an applicant is barred from applying to the Tribunal for resolution of a dispute. Section 55 does not prohibit an applicant from proceeding with a claim for non-compliance with section 33.
37The respondent argues that it sent the applicant’s representative emails requesting an EUO on November 16, 2022, January 12, 2023, June 5, 2023, July 11, 2023, July 18, 2023, July 24, 2023, July 27, 2023, August 17, 2023, and September 20, 2023. It argues that due to a lack of response, EUOs were ultimately scheduled for October 25, 2023, and October 31, 2023, and the applicant did not attend. As a result, the respondent argues that the applicant’s failure in complying with s. 33 has resulted in a situation where it would be appropriate to prohibit the applicant from proceeding with the claim under s. 55.
38The applicant’s submissions are unclear, but he appears to be arguing that he did not attend the EUO because it was scheduled to address s. 33 requests that were already complied with.
39The narrow issue before me is whether the applicant is barred from proceeding to a hearing. On this issue, I disagree with the respondent. I do not have the authority to preclude the applicant from applying to the Tribunal due to non-compliance with section 33(2). A failure to comply with the obligations under section 33 relieves the respondent of its obligation to pay for the benefits during the period of non-compliance. It is not a bar to a hearing, it is a defence with respect to its obligation to pay. However, the respondent has not raised any arguments with respect to s. 33(6) or that the applicant’s failure to comply with s. 33(2) relieves it of its obligation to pay for the benefits.
40Thus, the applicant is not barred from proceeding forward with his substantive claim.
Substantive Issues
Medical Benefits- Issues 1(ii) to (x)
41I find that the applicant is not entitled to the treatment plans in dispute.
42The applicant makes two sets of arguments in support of his entitlement. I will address the s. 38 arguments first.
43I find that the applicant has not established that the respondent was non-compliant with s. 38(8), therefore the consequences under s. 38(11) are not triggered. I also find that the applicant has not established that the proposed OCF-18s for chiropractic and massage services are reasonable and necessary.
44Where an insurer has not properly denied a treatment plan in accordance with s. 38 of the Schedule, the benefit becomes payable. Section 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decision. Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) of the Schedule, which includes the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.
45The applicant argues that the respondent was non-compliant with s. 38(11). I infer from these submissions that the applicant is alleging that the respondent was non-compliant with s. 38(8) with respect to these OCF-18s.
46The respondent provided no submissions with respect to s. 38(8) or s. 38(11).
47The applicant has not produced a copy of the denial letters, as a result, I find that the applicant has not established any failure by the respondent to comply with section 38(8) of the Schedule.
48I now turn to whether the OCF-18s are reasonable and necessary, for the reasons outlined below, I find that the proposed chiropractic and massage services are not reasonable and necessary.
49To receive payment for a treatment and assessment plan under ss. 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.
50The applicant argues that as a result of the accident, his right knee impacted with the dashboard and he has neck pain, shoulder pain, and back pain. The applicant further argues that his family physician, Dr. Luftspring has referred him for physiotherapy treatment. Finally, the applicant argues that his chronic pain has been exacerbated by this accident and he received nerve block injections. To this end, the applicant relies upon the CNRs of Dr. Luftspring.
51I find the applicant has not met his burden. While the applicant’s submissions provided a summary of his diagnoses and pain symptomatology, critically, he did not address how the proposed treatment is reasonable and necessary to address his pain complaints. Moreover, the applicant’s submissions focused on the respondent’s conduct and why he is entitled to an award. His submissions are silent on whether the treatment goals are reasonable, whether the goals are being met to a reasonable degree and whether the overall cost of achieving the goals is reasonable. This alone makes it challenging for the applicant to meet his burden.
52I am alive to the applicant’s argument that the respondent is not disputing the reasonableness and necessity of the treatment and therefore he is entitled to the treatment plans in dispute. However, the applicant has not referred me to evidence to support such a proposition.
53I further note that to establish the reasonableness and necessity of proposed treatment, it is not sufficient to simply lead evidence of a physical impairment or ongoing pain. Rather, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable. Here, the applicant has not identified what the goals of treatment are, which alone makes it difficult to determine whether the goals of treatment are reasonable.
54The applicant has also not referred me to evidence from Dr. Luftspring or his treating practitioner at Valley Chronic Pain that chiropractic and massage services have been recommended. Rather, the applicant argues that he has been diagnosed with exacerbated chronic pain, is undergoing injections and physiotherapy treatment was recommended. However, the OCF-18s in dispute are in relation to chiropractic and massage services, not physiotherapy treatment.
55In a similar vein, the applicant did not refer me to specific entries from his treating clinic or progress reports to indicate his progress with the treatment. Thus, I am unable to determine the efficacy of treatment, and whether the stated goals of the plans were being met to a reasonable degree.
56I also place limited weight on the CNRs of Dr. Luftspring because, as set out above, the applicant did not produce these records in accordance with the CCRO.
57For all these reasons, I find that the applicant has not established entitlement to the proposed OCF-18s set out in issues 1(ii) to (x).
Interest is not payable
58As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
The respondent is not liable to pay an award
59The applicant sought an award under section 10 of Reg. 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.
60Having concluded that the applicant is not entitled to any benefits, it follows that no benefits were unreasonably withheld or delayed and thus, no award is payable.
61The applicant also argued that the respondent has refused to pay for psychotherapy treatment despite s. 44 assessor, Dr. Bradbury, concluding that the applicant was entitled to these services. However, this benefit is not part of the dispute and therefore, I will not be considering the issue of an award with respect to this OCF-18.
ORDER
62With respect to the preliminary issues, I find that:
i. The applicant is barred from proceeding with issue 1(i) under s. 55(1)2 of the Schedule. The applicant is not barred from proceeding with issues 1(iv), (viii), (ix), and (x).
ii. The applicant is not barred from proceeding with the hearing because he failed to attend an Examination under Oath (“EUO”).
63With respect to the substantive issues, I find that:
i. The applicant is not entitled to the OCF-18s in issues 1(ii) to (x) nor interest.
ii. The respondent is not liable to pay an award.
Released: May 14, 2025
Tanjoyt Deol
Adjudicator