Licence Appeal Tribunal File Number: 22-008332/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:
Liane Louis
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Justin Mariani, Counsel
For the Respondent:
Nicholas Maida, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Liane Louis, the applicant, was involved in an automobile accident on February 21, 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 of Canada, 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 $4,028.00 for physiotherapy services, proposed by Health Max in a treatment plan/OCF-18 (“plan”) dated June 17, 2022?
ii. Is the applicant entitled to $1,242.59 ($3,342.59 less $2,100.00) for a social work assessment, proposed by HAL Disability Management Clinic in a plan dated November 8, 2021?
iii. Is the applicant entitled to $2,686.00 for an orthopaedic assessment, proposed by HAL Disability Management Clinic in a plan dated November 8, 2021?
iv. Is the respondent liable to pay an award under s. 10 of O. Reg.664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the applicant liable to pay costs of $1,000.00 in costs to the respondent?
RESULT
3The applicant is not entitled to the disputed treatment plans, interest, or an award.
4The respondent is not entitled to costs of this proceeding.
PROCEDURAL ISSUES
Inadmissibility of a document included in the applicant’s document brief
5The respondent submits that a document at Tab 5.7, page 476 of the applicant’s document brief is improperly before the Tribunal since it discloses settlement discussions, and its disclosure is prejudicial to the respondent and constitutes an act of bad faith on the part of the applicant.
6In her reply submissions, the applicant submits that the inclusion of the document was not intentional, and it was an administrative oversight. The applicant takes no position in excluding the document.
7I accept the applicant’s submission that the document was included unintentionally. I find that the document will not be considered at the hearing and since the inclusion of the document by the applicant was unintentional, there is no basis for a finding of bad faith.
Is the respondent entitled to costs?
8The respondent’s request for costs is denied.
9Under Rule 19 of the Licence Appeal Tribunal Rules, 2023, (“Rules”), the Tribunal may grant costs if it finds that a party acted unreasonable, frivolously, vexatiously or in bad faith. In deciding whether to award costs, several factors are to be considered by the Tribunal: the seriousness of the conduct, whether the conduct was in breach of a Tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, prejudice to the other party, and the potential impact a costs order would have on individuals accessing the Tribunal system. Under Rule 19.5, the Tribunal may award a different cost amount than requested.
10In submissions, the respondent added a request for costs. As Rule 19.2 of the LAT Rules, allows a party to make a request for costs in writing or orally at a case conference or hearing at any time before a decision or order is released, I have added it to the list of items in dispute.
11In seeking costs of $1,000.00 from the applicant, the respondent argues that the applicant breached settlement privilege by including a document with her hearing submissions. However, the respondent further argues that the document should be excluded and the applicant indicated this was an oversight in her reply.
12I accept that the inclusion of the applicant’s settlement proposal was an oversight and did not rise to the level of serious misconduct. Further, the applicant did not breach an order by the Tribunal or interfere with the Tribunal’s ability to carry out a fair, efficient and effective process and there is no serious prejudice to the respondent.
13I find that the respondent’s reasons or particulars of the conduct giving rise to a claim for costs are not persuasive, given the applicant’s inadvertence.
ANALYSIS
Issue #1- The applicant is not entitled to the proposed physiotherapy services massage therapy, laser treatment and acupuncture
14I find that the applicant is not entitled to the plan for physiotherapy services, massage therapy, laser treatment and acupuncture because the respondent’s reasons for denial complied with the Schedule. The applicant did not make submissions on whether it is reasonable and necessary.
15To 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. 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 same are reasonable.
16The plan dated June 17, 2022 for physiotherapy service, massage therapy, laser treatment and acupuncture was completed by Mary Jane Calzado, physiotherapist at by HealthMax in the amount of $4,028.15. The goals of the plan are for pain reduction, increased strength and range of motion and return the applicant to her activities of daily living.
17The applicant did not make submissions on whether the plan was reasonable and necessary. Instead, the applicant’s submissions focus on alleged violations of s.38(8) of the Schedule made by the respondent and it is submitted that these procedural errors should result in finding the disputed benefit payable.
18Section 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 other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
19If 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 is 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).
20The 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.
21The respondent wrote to the applicant by letter dated July 17, 2022, denying the plan for physiotherapy services within 10 business days of receiving the plan on July 4, 2022. The respondent’s denial stated that the findings of the Insurer’s Examination (“IE”) report dated January 7, 2022 by Dr. Esmat Dessouki, orthopaedic surgeon, found that there was no evidence of any residual musculoskeletal impairment attributable to the injuries sustained in the accident. Further, the denial letter also stated that from an orthopaedic perspective, the applicant had reached maximum medical improvement and the treatment is not reasonable and necessary.
22The applicant argues that the respondent’s denial of July 17, 2022 is improper, since it is based on medical reasons in an improperly obtained IE orthopaedic report dated January 7, 2022 by Dr. Dessouki. The applicant further submits that the IE report was obtained based on an improperly denied orthopedic assessment. The applicant further argues that if the respondent doesn’t have proper reasons to deny a plan and request an IE, it can’t then use the result of the IE to supplement the denial. In support of her position, the applicant relies on Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT).
23I find that the respondent is entitled to rely on the IE report in its denial letter. In this case, I have found that the orthopaedic assessment was properly denied, and the applicant attended the IE. Therefore, the respondent may rely on a medical opinion in the IE report to deny related medical and rehabilitation benefits.
24I find that the July 17, 2022 denial was compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
25Given that the respondent provided a compliant denial, I find that the applicant is not entitled to this plan.
Issue #2-Plan dated November 8, 2021 for the outstanding amount of $1,242.59
26I find that the applicant is not entitled to the unapproved portion of the November 8, 2021 plan.
27The November 8, 2021 plan was completed by Dr. Dahir Hashi, chiropractor, of HAL Disability Management Clinic. The plan sought 12 sessions social work counselling services, 4 hours to prepare a progress/discharge report, educational materials, and 3 hours for a re-assessment with David Ross, social worker, in the total amount of $3,342.59.
28The respondent partially approved the plan in the amount of $2,100.00, which included 12 counselling sessions, 4 hours for a progress/discharge report, educational materials and the cost of the plan. The respondent denied the hourly rate for a social worker at $149.61 and approved a rate of $100.00 per hour. The respondent also denied 3 hours for a re-assessment.
29The applicant submits that the respondent reduced the hourly rate of David Ross by 50% and made no submissions regarding the hourly rate of David Ross as a social worker or whether the outstanding amount for a re-assessment is reasonable and necessary.
30The respondent submits that the plan proposed an hourly rate of $149.61 which is the equivalent of a psychologist or psychological associate. The respondent argues that the service provider, David Ross, is a social worker which is an unregulated service provider under the Professional Services Guideline-Superintendent’s Guideline No. 03/14 (the “Guideline”). The respondent further submits that although the hourly rate for an unregulated service provider is $58.19 under the Guideline, the respondent agreed to pay a rate of $100.00 per hour for counselling services by David Ross. The respondent further submits that the cost of a re-assessment is not reasonable and necessary.
31I find that since the applicant made no submissions to explain how the rate of a social worker is equivalent to a psychologist or psychological associate, or why a re-assessment is reasonable and necessary, I find that the applicant has not met her burden to establish entitlement to the unapproved portion of this plan.
Issue #3-The applicant is not entitled to an orthopaedic assessment
32I find that the applicant is not entitled to the plan for an orthopaedic assessment.
33The plan in dispute is for an orthopaedic assessment with Dr. Tajedin Getahun, in the amount of $2,200.00, plus completion of the OCF-18 for $200.00 including taxes, for a total amount of $2,686.00. The plan was completed by Dr. Dahir Hashi, chiropractor of HAL Disability Management Clinic. The plan identifies the applicant’s injuries as sprain and strain type injuries of the neck, shoulder and back, chest pain, post concussion syndrome and psychological disorders. The goals of the plan are to identify barriers for recovery, develop an adequate diagnosis, and to recommend alternative treatment to return the applicant to her pre-accident activities.
34The applicant did not make submissions on whether the assessment is reasonable and necessary. Instead, the applicant again argued that she is entitled to the plan based on sections 38(8) and (11) of the Schedule.
35The respondent denied the treatment plan by way of letter dated November 23, 2021 within 10 business days of receiving the plan on November 9, 2021. The respondent’s denial letter stated that “we are unable to determine whether the assessment is reasonably required for the injuries you received in this motor vehicle accident.” The respondent further stated that “the medical records previously supplied, do not support the need for assessment with this specialty. I do not believe this assessment is reasonably necessary for your accident-related impairments.” The respondent arranged an IE to determine whether the assessment is reasonable and necessary.
36In a subsequent letter dated January 20, 2022, the respondent provided the IE report dated January 7, 2022 by Dr. Esmat Dessouki, orthopaedic surgeon, who opined that since the applicant has reached maximum medical improvement, the proposed plan is not reasonable or necessary. The respondent further stated that Dr. Dessouki indicates in his report that his physical examination of the applicant revealed no objective signs of residual musculoskeletal impairment.
37The applicant argues that the respondent provided a deficient notice since the applicant would not understand what medical records were considered or why the records did not support the need for an assessment.
38The applicant further argues that since the respondent’s denial was improper under the Schedule, it cannot rely on the IE report dated January 7, 2022 of Dr. Dessouki, since the Notice of Examination (“NOE”) did not cure the defect. In support of her position, the applicant relies on Taksali.
39I find that the November 23, 2021 denial was compliant with s.38(8) of the Schedule. The respondent provided clear and unequivocal 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 that since there was a proper denial, the respondent may rely on the IE report in support of its denial.
40Given that the respondent provided a compliant denial, I find that the applicant is not entitled to this plan.
Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest does not apply.
Award
42The applicant sought an award under s. 10 of Reg. 664.
43Under 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. As no benefits are payable, there is no basis upon which to order an award under s.10 of Reg. 664.
ORDER
44For the reasons set out above, I find that:
i. The applicant is not entitled to the treatment plans in dispute.
ii. The applicant is not entitled to interest or an award.
iii. The respondent is not entitled to costs.
iv. The application is dismissed.
Released: January 9, 2025
Lisa Holland
Adjudicator