Citation: [AT] v. Cooperators General Insurance Company, 2025 ONLAT 23-008656/AABS

Licence Appeal Tribunal File Number: 23-008656/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:

[AT] (A minor by their litigation guardian, [AB])

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Humberto Geovo, Paralegal

For the Respondent:

Daniel M. Himelfarb, Counsel

HEARD:

By way of written submissions

OVERVIEW

1[AT], the applicant, was involved in an automobile accident on September 12, 2020, 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, Co-operators General 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 $4,099.25 for occupational therapy services (tutoring), proposed by Excel Medical Diagnostics in a treatment plan dated December 21, 2021?

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

RESULT

3I find the applicant has not established the treatment plan in dispute is reasonable or necessary. As there are no benefits owing, the applicant is not entitled to interest.

PROCEDURAL ISSUES

4The issues in dispute are different from what was listed in the Case Conference and Report Order (“CCRO”) held on February 14, 2024. At the Case Conference both parties agreed that the occupational therapy treatment plan and two other plans were withdrawn on the applicant’s understanding that the respondent would pay all three benefits. The respondent subsequently paid two of the benefits, however, the occupational therapy treatment plan was not paid. On August 21, 2024 a motion order added the occupational therapy treatment plan to the list of issues. On September 5, 2024, the two remaining issues from the CCRO were removed.

5In its reply submissions the applicant asked for two pages of the respondent’s submissions to be excluded in accordance with the page limits set in the CCRO. The respondent submitted twelve pages and the applicant argues the two additional pages submitted by the respondent creates unfairness and the applicant should be allowed to submit two additional pages.

6Despite the applicant’s request, I find the respondent would suffer greater prejudice if the submissions were excluded from this hearing because the pages are relevant and regarding whether the respondent’s denial was improper. If the respondent’s additional pages are not allowed it may create further unfairness. Accordingly, I decline the applicant’s request to exclude the two pages from the hearing and I am allowing the respondent’s submissions in full.

ANALYSIS

Is the treatment plan for $4,099.25 for occupational therapy services (tutoring) reasonable and necessary?

7I find the applicant has not demonstrated, on a balance of probabilities, that the occupational therapy (tutoring) services are reasonable and necessary. The applicant is not entitled to the disputed treatment plan.

8To receive payment for an OCF-18 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

9The occupational therapy (tutoring) plan submitted by Ms. Konstantina Kiriazis, occupational therapist, with Excel Medical Diagnostics Inc. dated December 3, 2021 is intended to address the applicant’s injuries including unspecified injury of muscle and tendon at neck, sprain and strain of thoracic spine, lumbar spine, sleep disorder, anxiety disorder. The treatment plan does not provide details of how the applicant’s progress will be evaluated. The goals for this plan are pain reduction, increase in strength, increased range of motion, and return to activities of normal living. In the additional comments it is noted “It is recommended that the client is provided with Tutoring Services … she is reportedly having a hard time completing homework following the accident … The client also presents with short-term memory and attentional deficits, behavioural issues, and on-going headaches post-accident … she would benefit from in-person tutoring …” The applicant does not direct me to what testing was completed in support of this assessment or the connection between the stated goals and the tutoring.

10The applicant states the treatment provides her with benefit in recovering from her injuries by helping her to focus and succeed academically. The applicant relies on the clinical notes and records (CNRs) of [a doctor 1]; the CNRs of [a doctor 2]; the psychology report of Dr. Pappu Reddy, child psychologist; the in-home assessment of Ms. Kiriazis; and the s. 25 psychological assessment by Dr. Lopo.

11I find [a doctor’s 2] CNRs from Kennedy Medical Clinic have limited value in establishing that the applicant’s accident-related injuries caused her to require tutoring. Nine months after the accident, [a doctor 2] noted her ongoing headaches and that “she is doing okay in school”, however, he did not mention her accident-related injuries or any connection to the accident. [A doctor’s 1] CNRs noted the applicant complained of sleep issues, some behavioural changes and the parent’s concerns regarding ADHD in December 2020, however, there was no record of how this was associated to the accident.

12I find Dr. Reddy’s assessment dated December 7, 2022 and May 6, 2023, well over two years from the date of the accident, noted “current clinical presentation suggests ADHD with sensory issues” as the probable cause of the applicant’s behaviour. Dr. Reddy’s report was based on his interviews with the applicant and the completion of the Children’s Yale-Brown Obsessive Compulsive Symptom Checklist, an assessment of the applicant’s developmental history, Mood and Feeling Questionnaire: Long Version, and Screen for Child Anxiety Related Disorders. All of that suggested ADHD as the probable cause of the applicant’s behaviour and noted “structured activity schedule” with no mention of occupational therapy (tutoring).

13I assign less weight to Dr. Lopo’s s. 25 psychological assessment, some fifteen moths after the accident, as it suggests the applicant would benefit from psychological treatment. The applicant did not direct me to how the treatment plan for occupational therapy (tutoring) submitted by Ms. Kiriazis is supported by Dr. Lopo’s report.

14I find the proposed treatment plan is not consistent. The plan proposed one session of education, promoting health, and preventing disease over a period of one week and in the additional comments Ms. Kiriazis stated, “The client … would benefit from in-person tutoring … 3x/week, for 6 months”. The applicant does not address why the proposed plan and the comments differ so significantly and did not submit corroborating reports or clarification as to the specific occupational therapy (tutoring) and how it relates to the accident.

15While I am alive to the applicant’s issues with ongoing headaches, the applicant has not provided an explanation of how these issues are connected to the accident. After reading the reports, I find [a doctor’s] CNRs, the child psychologist report, and the clinical psychology report do not support the need for occupational therapy or tutoring for the applicant.

16I find the applicant has not met their burden because [a doctor’s] CNRs corroborate what was noted in each of the psychological reports that the applicant is suffering from headaches or ADHD.

Is the insurer’s notice compliant with s. 38(8) of the Schedule?

17I find the insurer’s notice is compliant with s. 38(8).

18The applicant raises the argument that the respondent’s denial notice did not comply with s. 38 of the Schedule.

19Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services not to be reasonable and necessary.

20The applicant states the respondent’s notice was “boilerplate”, did not provide proper medical reasons for the denial, or details regarding the evidence presented, and failed to provide a meaningful explanation as to why the plan was not reasonably required.

21The respondent argues the denial complies with s. 38. The respondent submits that it reviewed the submitted evidence, provided the applicant with information to make an informed decision, and scheduled a s. 44 assessment to evaluate entitlement.

22I have reviewed the respondent’s denial letter dated December 21, 2021. I find the letter is compliant with s. 38(8) of the Schedule because it clearly refers to that applicant’s impairments, the specific treatment plan, whether the diagnosis falls within or outside of the MIG and provides sufficient reason for the denial. The denial letter lists the applicant’s impairments as “sprain and strain of thoracic spine, sprain and strain of lumbar spine, sleep disorder and anxiety disorder”, and refers to the treatment plan including the tutoring services. The denial letter also states complaints of “headaches, back pain, leg pain, groin pain, foot pain” that are minor in nature and the behavioural issues are self-reported with no indication of causation.

23I find the respondent has provided a s. 38 compliant notice. The applicant has not established that the treatment plan is payable pursuant to s. 38(11).

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, it follows that no interest applies.

ORDER

25The applicant is not entitled to the treatment plan in dispute.

26As there are no overdue benefits, the applicant is not entitled to interest.