Licence Appeal Tribunal File Number: 23-010255/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:
Don David
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Roderick Walker
APPEARANCES:
For the Applicant:
Yalda Aslamzada, Counsel
For the Respondent:
Joanne R. Witt, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Don David, the applicant, was involved in an automobile accident on September 4, 2021, 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, Aviva 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 a non-earner benefit (“NEB”) of $185.00 per week from September 11, 2021, to ongoing?
ii. Is the applicant entitled to $1,533.72 for chiropractic services, proposed by Physiomed Dixie in a treatment plan/OCF-18 (“plan”) submitted March 14, 2022?
iii. Is the applicant entitled to $1,575.95 ($3,697.14 less $2,121.19 approved) for psychological counselling services, proposed by Downsview Healthcare in a plan submitted December 7, 2023?
iv. Is the applicant entitled to $11,502.39 ($13,297.89 less $1,795.50 approved) for multidisciplinary treatment services, proposed by Downsview Healthcare in a plan submitted December 1, 2023?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to an NEB benefit of $185.00 per week commencing January 13, 2022, until September 2, 2023.
4The applicant is not entitled to any of the plans in dispute.
5Interest is awarded only on the NEB payable under s. 51 of the Schedule.
6The respondent is not liable to pay an award.
ANALYSIS
Is the applicant entitled to a non-earner benefit of $185.00 per week from September 11, 2021, to ongoing?
7Section 36(4) of the Schedule sets out the particulars that must be included in the insurer’s denial letters when it decides the applicant does not meet the test for specified benefits. It states that within 10 business days after an insurer receives an application and a completed Disability Certificate (“OCF-3”), the insurer shall:
i. pay the specified benefit;
ii. give the applicant notice explaining the medical and other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
iii. send a request to the applicant under s. 33(1) of s. 33(2).
Should the requirements outlined in s. 36(4) of the Schedule not be met, s. 36(6) of the Schedule states:
If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate, and ending, if the insurer subsequently gives a notice described in subsection (4)(b), on the day the insurer gives the notice.
8The applicant submits that the denial letters for the NEB and all the plans in dispute are void and are lacking medical reasons why the applicant is not eligible and should be payable under Section 36
9The respondent denies that it was non-compliant with the Section 36 of the Schedule. The respondent states that their letter of benefits states that the assessor determined the treatment recommended is not reasonable and necessary from the injuries sustained in the motor vehicle accident. Therefore, Aviva will not fund any treatment incurred relating to this treatment plan.
10The applicant’s submissions focus on the adequacy of the respondent’s denial notices and do not address his substantive entitlement to the benefits.
11The applicant cites authorities to support his case; Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, (“Tomec”), Peixeiro v. Haberman, 1997 CanLII 325 (SCC), at para. 22, 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 (ON LAT) for the appropriateness of applying a s. 38(8) analysis to ss. 36(4) and 44(5) is addressed by former Executive Chair Lamoureux of the Tribunal in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (“MB”).
12The respondent relies on M.B. v. Aviva, 2017 CanLII 87160, at para 26, where Executive Vice Chair Lamoureux considered what satisfied the obligations to provide medical and other reasons and confirmed that the explanation provided would turn on the facts at hand. The respondent submits that the reasons provided for denying a non-earner benefit were adequate medical and other reasons that referenced the applicant’s medical condition. The respondent further submits that scheduling an IE to address NEB was reasonable and necessary to determine if the applicant was entitled to the benefit for which he had applied.
13The respondent submits that the reasons provided for denying a non-earner benefit were adequate “medical and other reasons” that referenced the applicant’s medical condition.
14I find regarding the NEB, the EOB letter dated March 29, 2022, to the applicant from the insurer reveals that there is no medical reason as to why the benefit is denied. The respondent lacks any clear reason as to what medical reason it is relying upon. The EOB is blank where it states the “medical and other reasons”. I find it non complaint to s.36(4)(b) and for this reason the applicant has met his onus for NEB benefits. The applicant states that the benefits should commence between September 1, 2021, to going. However, the respondent states that it is not liable to pay for NEB from the date of loss until January 13, 2022, when the insurer received the OCF-3 because no records have been produced before this date by the applicant to substantiate the NEB.
15I find that the applicant will receive NEB benefits from January 13, 2022, until September 2, 2023, retroactively with interest pursuant to the s. 51 of the Schedule.
Is the applicant entitled to $1,533.72 for chiropractic services, proposed by Physiomed Dixie in a treatment plan/OCF-18 (“plan”) submitted March 14, 2022, and denied May 16, 2022?
16I find that the applicant has not demonstrated that he is entitled to the above plan in dispute.
17Section 38(8) requires an insurer to inform an insured person within 10 business days after it receives the treatment plan of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
18The applicant submits that the insurer is in violation of s. 38(8) of the Schedule. The applicant states that the letter of denial for the plan is deficient and void because of a lack of medical evidence and objective reasoning.
19The respondent submits that it complied with the timeline in s. 38(8) of the Schedule and such the notice is compliant.
20I find that the respondent’s denial notice dated May 16, 2022, complies with s. 38(8) of the Schedule because the letter from the insurer was dated immediately on the same date denying the OCF-18 with medical and other reasons that are compliant.
21I find that the applicant has not met his onus in his argument of this issue in dispute.
Is the applicant entitled to $1,575.95 ($3,697.14 less $2,121.19 approved) for psychological counselling services, proposed by Downsview Healthcare in a plan submitted December 7, 2023, and denied December 8, 2023?
22I find that the applicant has not demonstrated that he is entitled to the above plan in dispute.
23I find that the above plan is not reasonable and necessary.
24Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
25The applicant replies in his argument that the insurer is in violation of s. 38(8) of the Schedule. The applicant also argues that the denial letters are void and in deficient because of the lack of medical reasons as to why the applicant is not entitled to the plan.
26The respondent submits that they partially approved the treatment plan up to $2,121.19. In its correspondence dated December 8, 2023, the respondent advised that the rate would be adjusted for the appropriate healthcare provider and that the fee to prepare a progress report is reduced from four hours to one hour. The respondent relies on the Professional Services Fee Guideline (PSG), which indicates the hourly rates for health professionals providing psychological services. The respondent paid $99.75 per hour for a regulated psychotherapist as the PSG indicates.
27I agree with the respondent that they properly notified the applicant as to the costs for the appropriate health care provider and the fee to that provider was adjusted properly to $99.75 per hour as per the PSG guidelines.
28I find that the respondent’s denial notice dated December 8, 2023, complies with s. 38(8) of the Schedule because the letter from the insurer was dated immediately on the next day denying the OCF-18 with medical and other reasons that are compliant.
29As I have determined that the respondent is compliant with s.38(8), I will do an analysis of the plan.
30The applicant doesn’t address the reasonable and necessary test for his entitlement for this benefit.
31The respondent states that the plan is partially approved up to $2,121.19. The remaining amount in dispute is $1,575.95.
32In its correspondence dated December 8, 2023, the respondent advised that the rate would be adjusted for the appropriate healthcare provider and that the fee to prepare a progress report is reduced from four hours to one hour. The respondent relies on the Professional Services Fee Guideline (PSG), which indicates the hourly rates for health professionals providing psychological services. The respondent paid $99.75 per hour for a regulated psychotherapist as the PSG indicates.
33I agree with the respondent that the total plan was adjusted properly to $2,121.19 from $3,697.14 in respect for a regulated psychotherapist of $99.75 per hour as indicated in the PSG guidelines.
34I find that the applicant has not met his onus in his argument of this issue in dispute.
Is the applicant entitled to $11,502.39 ($13,297.89 less $1,795.50 approved) for multidisciplinary treatment services, proposed by Downsview Healthcare in a plan submitted December 1, 2023, and denied December 4, 2023?
35I find that the applicant has not demonstrated that he is entitled to the above plan in dispute.
36The applicant relies on that fact the insurer has violated s. 38(8) of the Schedule. The applicant submits that the respondent denied 86% of the value of the plan in dispute and the denial does not meet the requirements of s. 38(8), thereby triggering, the mandatory consequences set out under s. 38(11).
37The respondent submits that it complied with the timeline in s. 38(8) and as such the notice is compliant. The respondent also submits that it listed denial reasons in the December 4, 2023 letter such as; brokerage service and psychologicalreview, psychometrist vs. psychologist charges, chiropractic, massage, and acupuncture services and the psychological assessment and documentation that the respondent submits are not reasonable and necessary.
38I find that the respondent’s denial notice dated December 4, 2023, is compliant in respect to s. 38(8) of the Schedule because the letter from the insurer was dated just three days after the plan was received by the respondent. The notice denying the OCF-18 also had medical and other reasons as stated above, that in my view are compliant.
39As I have determined that the respondent is compliant with s.38(8), I will now address whether the plan is reasonable and necessary.
40The applicant doesn’t address the reasonable and necessary test for entitlement to the plan in his submissions.
41The respondent submits that the plan is not reasonable and necessary because of the proposed brokerage service and psychologicalreview, psychometrist vs. psychologist charges, chiropractic, massage, and acupuncture services and the psychological assessment and documentation.
42I find that in respect to brokerage service and psychological review, the explanation in the letter does not align with the itemized list of services. If the brokerage service refers to a psychological review of file materials, this cost is already covered within existing psychologist/psychometrist services and was already conducted in the assessment on January 30, 2023, with a report issued on June 5, 2023.
43In respect to the psychometrist vs. psychologist charges, I find that no psychologist is listed in Part 11 (Health Care Providers); instead, treatment is being provided by a psychometrist. The insurer has adjusted the payment to reflect the lower rate for a psychometrist ($99.75/hour instead of $149.50/hour for a psychologist).
44Regarding the chiropractic, massage, and acupuncture services that were denied, I find that these treatments are not reasonable and necessary as there were no physical impairments from the accident, complaints from the applicant were inconsistent with his severity, daily activities were unaffected, and no clinical restrictions were necessary find that the applicant has not met his burden that the disputed plans are reasonable and necessary.
45For the above reasons, I find all the plans in dispute herein, on a balance of probabilities, are not reasonable and necessary.
Interest
46The applicant is entitled to interest on overdue NEB payments from January 13, 2022, to September 2, 2023, under s. 51 of the Schedule.
Award
47The respondent is not liable to pay an award under s. 10 of Reg. 664 because the case law is clear that if the respondent has been imprudent, stubborn, or inflexible an award would apply. However, in this case, there is no evidence that the respondent acted in this manner.
ORDER
48I find on the totality of the evidence:
i. The applicant is entitled to an NEB benefit of $185.00 per week commencing January 13, 2022, until September 2, 2023.
ii. The applicant is not entitled to any of the benefits in dispute.
iii. Interest is awarded on the NEB payable under s. 51 of the Schedule.
iv. The respondent is not liable to pay an award.
v. The application is dismissed.
Released: May 27, 2025
Roderick Walker
Adjudicator