OVERVIEW

1Jasmine Sandhu, the applicant, was involved in an automobile accident on August 5, 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 the respondent, Western Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2Preliminary Issues: The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing for the following benefits because the applicant failed to dispute their denial within the 2- year limitation period:

(a). $27.66 ($1,712.91 less $1,685.25 approved) for physiotherapy services, proposed by Horizon Physiotherapy, in a treatment plan/OCF-18 (“plan”) submitted November 5, 2018;

(b). $1,998.80 for a psychological assessment, proposed by Counselling & Healing Services, in a plan submitted November 26, 2018;

(c). $900.00 ($2,400.00 less $1,500.00 approved) for physiotherapy services, proposed by Horizon Physiotherapy, in a plan submitted August 24, 2018;

(d). $2,803.80 for physiotherapy services, proposed by Horizon Physiotherapy, in a plan submitted March 5, 2019;

(e). $2,583.41 for physiotherapy services, proposed by Horizon Physiotherapy, in a plan submitted May 6, 2019;

(f). $1,097.25 ($2,638.85 less $1,541.60 approved) for occupational therapy services, proposed by Lewis & Flanders Medicine Professional Corporation, in a plan submitted June 7, 2020;

(g). $3,347.75 for psychological services, proposed by Lewis & Flanders Medicine Professional Corporation, in a plan submitted October 20, 2020;

(h). $1,625.00 for physiotherapy services, proposed by Biastoch Chiropractic, in a plan dated February 23, 2021; and,

(i). $3,192.00 for psychological services, proposed by Woodbine Psychology and Counselling Services, in a plan dated February 25, 2020.

SUBSTANTIVE ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $27.66 ($1,712.91 less $1,685.25 approved) for physiotherapy services, proposed by Horizon Physiotherapy, in a plan submitted November 5, 2018?

ii. Is the applicant entitled to $1,998.80 for a psychological assessment, proposed by Counselling & Healing Services, in a plan submitted November 26, 2018?

iii. Is the applicant entitled to $900.00 ($2,400.00 less $1,500.00 approved) for physiotherapy services, proposed by Horizon Physiotherapy, in a plan submitted August 24, 2018?

iv. Is the applicant entitled to $2,803.80 for physiotherapy services, proposed by Horizon Physiotherapy, in a plan submitted March 5, 2019?

v. Is the applicant entitled to $2,583.41 for physiotherapy services, proposed by Horizon Physiotherapy, in a plan submitted May 6, 2019?

vi. Is the applicant entitled to $1,097.25 ($2,638.85 less $1,541.60 approved) for occupational therapy services, proposed by Lewis & Flanders Medicine Professional Corporation, in a plan submitted June 7, 2020?

vii. Is the applicant entitled to $3,347.75 for psychological services, proposed by Lewis & Flanders Medicine Professional Corporation, in a plan submitted October 20, 2020?

viii. Is the applicant entitled to $1,625.00 for physiotherapy services, proposed by Biastoch Chiropractic, in a plan dated February 23, 2021?

ix. Is the applicant entitled to $3,192.00 for psychological services, proposed by Woodbine Psychology and Counselling Services, in a plan dated February 25, 2020?

x. Is the applicant entitled to $2,200.00 for a cognitive communication assessment, proposed by The Speech Therapy Centre of Canada, in a plan submitted February 10, 2022?

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

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

4An award was not listed as an issue in dispute in the CCRO, however the applicant made several references to the respondent’s pattern of denials as triggering an award, and the applicant requested an order for an award. As such, I have added an award as an issue in dispute for the purposes of this hearing.

RESULT

5For the preliminary issue, I find that the applicant is barred by virtue of s. 56 of the Schedule from disputing the benefits for physiotherapy services, psychological assessment, occupational therapy services and psychological services listed in paragraphs 3 (i) to (viii) above for failure to dispute the denied plans within the two-year limitation period.

6The applicant is not entitled to the plan for psychological services in the amount of $3,192.20.

7The applicant is not entitled to the plan for a cognitive communication assessment as it is not reasonable and necessary and therefore, no interest is payable on any overdue amounts.

8The respondent is not liable to pay an award.

ANALYSIS

Preliminary Issue

9The preliminary issue to be decided is whether the applicant is barred under s.56 of the Schedule from proceeding to a hearing for physiotherapy services and psychological services listed as issues 3 (i), 3 (ii), 3 (iii), 3 (iv), 3 (v), 3 (vi), 3 (vii) and 3 (viii) above because she failed to file an application with the Tribunal to dispute the denial of these benefits within the two-year limitation period.

10Section 56 of the Schedule bars the applicant from applying to the Tribunal more than two years after the benefit was denied.

11The respondent submits that the applicant did not dispute the denials of the plans listed in issues 3 (i) through 3 (viii) within the two-year limitation period stipulated in s. 56 of the Schedule. The respondent further argues that its denials comply with s. 38(8) of the Schedule in providing “principled rationale based fairly on an insured’s file”, and it is not required to provide a medical opinion. With respect to the OCF-18 dated February 25, 2020, in the amount of $3,192.20, by Woodbine Psychology and Counselling Services, the respondent submits that this issue is not properly before the Tribunal.

12The applicant submits that she should be able to proceed to the substantive hearing. The applicant does not dispute that the application was brought outside the limitation period for all of the benefits claimed. However, she submits that in order for the two-year limitation in s. 56 to be triggered, the respondent must provide a proper notice of denial. The applicant submits that all the respondent’s denials of the plans listed in 3 (i) through 3 (vii) were non-compliant with s.38(8) and s.44(5) of the Schedule.

13The respondent further submits that the benefits in dispute in issues 3 (i) through 3 (viii) were denied in clear and unequivocal denials.

Section 38(8)

14I find the respondent’s denials were sufficient in providing reasons that the applicant remains in the MIG in the absence of compelling medical evidence of a pre-existing condition or psychological impairment.

15The applicant submits that the respondent’s denials are non-compliant with the Schedule for failing to provide valid medical reasons. The applicant submits since the respondent did not properly deny the disputed treatment plans, in accordance with s. 38(8) of the Schedule, there is no valid denial, and the treatment plans are payable pursuant to s. 38(11).

16Section 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 all the other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

17If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all goods, services, assessments and examinations described in the treatment and assessment 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).

18The 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.

The respondent’s denial notices are compliant with the Schedule

Issue 3 (i) - OCF-18 dated November 2, 2018 for the outstanding amount of $27.66

19I find that the Explanation of Benefits (“EOB”) dated November 14, 2018 complies with the Schedule. The applicant makes no submissions regarding the November 14, 2018 denial. The respondent has identified the applicant’s medical condition. The EOB specifically references the fact that the respondent has not received compelling medical information to indicate that the applicant suffers from any physical impairments that fall outside the MIG. The respondent has further specified the information it does not have but requires, namely compelling evidence from the applicant’s healthcare providers.

20The plan for physiotherapy services dated November 2, 2018 is by Karen Peronilla, physiotherapist of Horizon Physiotherapy Clinic, in the amount of $1,712.91 was partially approved on November 5, 2018 for $1,685.25. The respondent wrote to the applicant on November 14, 2018 denying the remainder of the plan, within 10 business days after receiving the plan on November 5, 2018. The respondent sent a subsequent letter dated February 19, 2019 again to explain the plan is partially approved up to the MIG limit.

21The applicant submits that the February 19, 2019 letter was an improper denial with no medical reasons or reference to the applicant’s specific medical condition.

22The November 14, 2018 letter states that after reviewing the available information, there is no compelling evidence that the applicant’s injuries requires treatment outside the MIG limits. The respondent further requested compelling evidence from a healthcare provider that the applicant’s injuries are not within the MIG under s. 33.

23In my view, this rationale meets the standard set out in 17-003774/AABS v. Aviva Canada Inc, 2018 CanLII 84051 ON LAT (“Aviva”). While not binding on me, I find the following reasoning in Aviva to be persuasive “…an insurer’s ‘medical and any other reasons’ should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decisions or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.”

24Here, the respondent has requested information about the insured’s accident-related injuries that the insurer does not have but requires to determine whether the applicant’s injuries fall outside the MIG. The respondent has specifically requested further information from the applicant’s healthcare providers, pursuant to section 33 of the Schedule. As such, I find the respondent’s reference to the MIG in the denial letter was a valid partial denial of the plan.

25I find that the November 14, 2018 letter complied with s. 38(8) of the Schedule. I find that 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. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

Issue 3 (ii) - OCF-18 dated November 21, 2018 for a psychological assessment

26I find that the EOB dated December 7, 2018 complies with the Schedule.

27The plan for a psychological assessment dated November 21, 2018 is by Fahimeh Aghamohseni, psychologist, of Counselling and Healing Services, in the amount of $1,998.80. The respondent wrote to the applicant on December 7, 2018 denying the plan, within 10 business days after receiving the plan on November 26, 2018.

28The applicant submits that the December 7, 2018 letter was an improper denial with no medical reasons or reference to the applicant’s specific medical condition.

29The December 7, 2018 letter states that the respondent has not received compelling evidence that the applicant’s injuries do not fall within the MIG. The respondent requested compelling evidence from the applicant’s healthcare provider that her injuries exceed the MIG under s. 33.

30I find that the December 7, 2018 letter was a valid denial letter. The respondent has identified that the applicant’s medical condition falls under the MIG. I find that 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. The applicant was provided with information regarding her right to appeal the decision within two years from the date of the denial. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

Issue 3 (iii) - OCF-18 dated August 17, 2018 for the outstanding amount of $900.00

31I find that the EOB dated September 4, 2018 complies with the Schedule. The respondent identifies the benefits in dispute as treatment at Horizon Physiotherapy Clinic and the reason for the denial as no compelling medical documentation to support injuries that fall outside the MIG or non-MIG injuries.

32The plan for physiotherapy services dated August 17, 2018 is by Karen Peronilla, of Horizon Physiotherapy Clinic in the amount of $2,400.00. The respondent wrote to the applicant on September 4, 2018 with a partial approval of the benefits for $1,500.00, up to the MIG limits, within 10 business days after receiving the plan on August 24, 2018. In a subsequent letter dated November 14, 2018, the respondent stated that after reviewing the available information on file, there is no compelling evidence that the applicant requires treatment beyond the MIG limit. The respondent requested compelling evidence of a non-MIG injury from the applicant’s healthcare provider pursuant to s. 33.

33The applicant submits that the September 4, 2018 letter was an improper denial with no medical reasons or reference to the applicant’s specific medical condition.

34I find that the September 4, 2018 and November 14, 2018 letters were valid denial letters. I find that 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. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

35Although I have found the denials were compliant with s. 38(8), it is a separate question to determine whether the applicant filed her application within the two-year limitation after a denial notice, under s. 56 of the Schedule. I find that the applicant failed to file her application within the two-year limitation, and therefore, she is statute barred from applying to the Tribunal regarding the benefits listed as issues in paragraphs 3 (i), 3(ii) and 3 (iii) above.

Issue 3 (iv) - OCF-18 dated March 1, 2019 for physiotherapy services

36I find that the Explanation of Benefits (“EOB”) dated March 14, 2019 complies with s. 38(8) of the Schedule.

37The plan for physiotherapy services dated March 1, 2019 is by Karen Peronilla, of Horizon Physiotherapy Clinic in the amount of $2,803.80. The respondent wrote to the applicant on March 14, 2019, denying the benefits, within 10 business days after receiving the plan on March 5, 2019.

38The applicant submits that the March 14, 2019 letter was an improper denial with limited, non-specific explanations.

39The March 14, 2019 letter states that the respondent has not received compelling evidence that the applicant’s injuries require treatment beyond the MIG limit, and that the applicant’s injuries are minor injuries. The respondent requested further information under s. 33 of compelling evidence from the applicant’s healthcare provider that her injuries fall outside the MIG.

40I find that the March 14, 2019 letter was a valid denial letter. I find that 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. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

Issue 3 (v) - OCF-18 dated April 19, 2019 for physical rehabilitation services

41I find that the EOB dated May 17, 2019 complies with the Schedule.

42The plan for physical rehabilitation services dated April 19, 2019 is by Karen Peronilla, of Horizon Physiotherapy Clinic in the amount of $2,583.41. The respondent wrote to the applicant on May 17, 2019, denying the benefits, within 10 business days after receiving the plan on May 6, 2019.

43The applicant submits that the May 17, 2019 letter was an improper denial with no medical reasons or reference to the applicant’s specific medical condition.

44The May 17, 2019 letter states that the respondent has reviewed the available information and there is no compelling evidence that the applicant’s injuries require treatment beyond the MIG limit. The respondent defines the applicant’s injuries as minor, and requested compelling medical evidence from the applicant’s healthcare provider that her injuries are not under the MIG, within 10 business days under s. 33.

45I find that the May 17, 2019 letter was a valid denial letter. I find that 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. The respondent has identified the applicant’s medical condition. The applicant was provided with information regarding her right to appeal the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

Issue 3 (vi) - OCF-18 dated June 7, 2020 for the outstanding amount of $1,097.25

46I find that the EOB dated June 19, 2020 complies with the Schedule.

47The plan for occupational therapy services dated June 7, 2020 is by Jennifer Diamond, occupational therapist, of Lewis & Flanders Medicine Professional Corporation, in the amount of $2,638.85. The respondent wrote to the applicant on June 19, 2020 with a partial approval of the benefits for $1,541.60, within 10 business days of receiving the plan on Monday, June 8, 2020.

48The applicant submits that the June 19, 2020 letter was an improper denial with no medical reasons or reference to the applicant’s diagnosis or specific medical condition. The applicant submits that the respondent provided limited, non-specific explanations for its partial denial.

49The June 19, 2020 letter states that the proposed plan dated June 7, 2020 submitted by Jennifer Diamond, occupational therapist, of Lewis & Flanders Medicine Professional Corporation in the amount of $2,638.85 is partially approved, and the amounts for planning services and brokerage services are denied.

50The respondent submits that the applicant has not provided an explanation for the additional costs for brokerage and planning services as separate from the amounts which were approved.

51I find that the June 19, 2020 letter was a valid denial letter. I find that 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. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons for its partial denial of planning and brokerage services, it does not render the notice invalid. I find this was a clear and unequivocal denial.

52Since I have found the denials were compliant with s. 38(8), and the applicant failed to file her application within the two-year limitation under s.56 of the Schedule, I find that she is statute barred from applying to the Tribunal regarding the benefits listed as issues in paragraphs 3 (iv), 3(v) and 3 (vi) above.

Issue 3 (vii) - OCF-18 dated September 26, 2020 for occupational therapy services

53I find that the EOB dated October 30, 2020 complies with the Schedule.

54The plan for occupational therapy services dated September 26, 2020 is by Natalie Brunswick, occupational therapist, of Lewis & Flanders Medicine Professional Corporation, in the amount of $3,347.75. The respondent wrote to the applicant on October 30, 2020 denying the benefits, within 10 business days after receiving the plan on October 20, 2020.

55The applicant submits that the October 30, 2020 letter was an improper denial with no medical reasons or reference to the applicant’s specific medical condition. The applicant submits that the respondent did not specify what information and medical documentation was reviewed, or the reasons for an Insurer’s Examination (“IE”). The applicant argues that the respondent cannot rely on the IE report of Avi Kaplan since its based on an improper denial. The applicant makes no submissions why the notice of examination (“NOE”) dated November 3, 2020 is non-compliant with s.44(5) of the Schedule.

56The October 30, 2020 letter states that the respondent has not received compelling medical documents to determine the applicant’s entitlement to medical and rehabilitation benefits beyond the MIG. The respondent further stated that based on a review of the information and medical documentation provided to date, the respondent requested an Insurer’s Examination to determine whether further treatment is reasonable and necessary. In addition, the respondent stated that it required an IE to determine whether the recommended treatment is reasonable and necessary for the injuries the applicant sustained as a result of the accident. In a subsequent letter dated March 31, 2021, the respondent provided a copy of IE report dated March 5, 2021 by Avi Kaplan, occupational therapist, with a summary of the report that there has been no progress report by the treatment provider with the rationale for ongoing treatment, and it is noted that the applicant has pre-existing anxiety and depression. The respondent requested the clinical notes of records (“CNRs”) of the treatment provider, Natalie Brunswick, with a progress report and detailed explanation of the proposed treatment.

57I find that the October 30, 2020 letter was a valid denial letter. The respondent has identified the applicant’s medical condition. The applicant was provided with information regarding her right to appeal the decision. I find that 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. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

58Since I have found the denials were sufficient, and the applicant failed to file her application within the two-year limitation under s.56 of the Schedule, I find that she is statute barred from applying to the Tribunal regarding the benefit listed in paragraph 3 (vii) above.

Issue 3 (viii) - OCF-18 dated February 23, 2021 for physiotherapy services in the amount of $1,625.00

59In her submissions, the applicant agreed that the issue listed in the Case Conference Report and Order (“CCRO”) dated February 21, 2024, in 3 (viii) for physiotherapy services in the amount of $1,625.00, proposed by Biastoch Chiropractic was properly denied by the respondent. The applicant agreed that this issue is barred from proceeding to a hearing pursuant to s.56 of the Schedule. Therefore, I do not need to consider this issue for purposes of this hearing.

Issue 3 (ix) – OCF-18 dated February 25, 2020 for psychological services in the amount of $3,192.20

60The CCRO lists an issue in dispute for psychological services in the amount of $3,192.20, in a plan dated February 25, 2020, proposed by Woodbine Psychological and Counselling Services. However, in the respondent’s written hearing submissions, there is evidence that Woodbine Psychological and Counselling Services withdrew the plan because it was submitted twice on behalf of Nita Sandhu and Jessica Sandhu, and not under the name of the applicant. Therefore, the Tribunal does not have jurisdiction to consider this issue under sections 280(1) and 280(2) of the Insurance Act, and I have removed it from the issues in dispute.

61The applicant made no submissions nor provided any evidence to refute this.

Substantive Issues

The applicant is not entitled to a cognitive communication assessment

62I find that the treatment plan in dispute for a cognitive communication assessment is not payable.

63The applicant seeks payment for a plan dated January 31, 2022, submitted by Kathleen Arnold, speech language pathologist, at The Speech Therapy Centres of Canada, in the amount of $2,200.00 for a cognitive communication assessment. The goals of the plan are to identify cognitive and communication difficulties and recommend treatment for the applicant’s current and future vocational and avocational goals.

64The applicant points to a virtual concussion assessment report dated January 5, 2023 by Dr. Johann Micallef of Neurology Centre of Toronto; an occupational therapy report dated January 17, 2023 by Jenni Diamond; a consultation report dated January 31, 2023 by Dr. Mark D’Souza; and a chronic pain report dated September 28, 2023 by Dr. Stephen Brown. Although, Jenni Diamond and Dr. D’Souza mention the applicant’s pain symptoms, the applicant does not point to any medical documentation in support of the disputed assessment.

65The respondent submits that the applicant’s medical documentation does not support the need for a cognitive communication assessment.

66I find that while the applicant relies on a report by Dr. D’Souza that diagnoses her with fibromyalgia, cervical spine dysfunction and mental health symptoms, this does not support the need for the proposed assessment. I find that neither Dr. Micallef nor Dr. Brown recommend a cognitive communication assessment, and instead, they focus on a multi-disciplinary approach, with active rehabilitation and psychological treatment to manage the applicant’s symptoms.

67I find that the applicant has not demonstrated, on a balance of probabilities, that the disputed plan for a cognitive communication assessment is reasonable and necessary for her accident-related injuries.

Interest and an award

68Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, interest does not apply.

69The 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. I find an award is not appropriate because the respondent did not unreasonably withhold payment as the denials were based on reasonable, objective assessments of the applicant.

ORDER

70For the reasons set out above, I find that:

i. The applicant is barred from proceeding with claims for physiotherapy services, psychological assessment, occupational therapy services and psychological services listed in paragraphs 3 (i) to (viii) above for failure to dispute the denied plans within the two-year limitation period, pursuant to s.56 of the Schedule.

ii. The applicant is not entitled to the plan for psychological services in the amount of $3,192.20.

iii. The applicant is not entitled to a cognitive communication assessment.

iv. The applicant tis not entitled to interest, or an award.

v. The application is dismissed.