Licence Appeal Tribunal File Number: 23-010260/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:
[MM]
Applicant
and
Aviva Insurance General Company
Respondent
DECISION
ADJUDICATOR:
Rasha El Sissi
APPEARANCES:
For the Applicant:
Yalda Aslamzada, Counsel
For the Respondent:
Joanne R. Witt, Counsel
Keisha Tucker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1[MM], 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 Aviva General Insurance Company, the respondent, 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 $3,445.28 for physical therapy services, proposed by Canadian Active Rehab Centre (“CARC”) in a treatment plan/OCF-18 (“OCF-18”) submitted October 24, 2022, and denied November 8, 2022?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the OCF-18 in dispute or interest.
4The respondent is not liable to pay an award.
ANALYSIS
The respondent is compliant with s. 38(8) of the Schedule with respect to the OCF-18 in dispute.
5The applicant argues that the respondent’s denial letter dated November 8, 2022 with respect to the OCF-18 in dispute (the “denial letter”) does not provide proper medical reasons as required by s. 38(8) of the Schedule.
6The applicant submits that the reasons provided: are only limited, non-specific explanations; lack specific detail regarding the applicant, her condition, or any substantive aspect of the OCF-18; and could be used to deny any treatment / assessment proposed by any insured via an OCF-18 no matter its purpose or the nature of the injuries that it proposes to remedy.
7The respondent argues that it provided reasons in the denial letter specific to the applicant’s claim for benefits based on the medical documentation and treatment from CARC provided to the date of the OCF-18 in dispute.
8Section 38(8) states that, when denying any aspect of a treatment plan, an insurer is required to provide “the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.” A breach of s. 38(8) may trigger the remedies available under s. 38(11) of the Schedule.
9In the denial letter, the respondent stated the medical and other reasons as follows:
“We’re unable to determine whether the recommendations on your OCF 18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time.
Medical Reason: The frequency of care does not generally diminish over time. The patient does not appear to show objective signs of improvement despite continuing treatment. The patient's subjective physical complaints appear to remain unchanged despite continuing treatment. We are addressing whether the proposed goods and services for additional therapy are reasonable and necessary to address claimant's MVA related impairment.”
10I find that the reasons in the denial letter were adequate because they refer to the MVA-related impairment, injuries sustained and the physical complaints of the applicant. They also refer to her continuing treatment over time, putting the medical reasons in the context of her ongoing treatment. They refer both to the lack of objective signs of improvement and the lack of changed subjective physical complaints from such treatment. They say that the respondent is addressing whether the proposed treatment is reasonable and necessary. The letter then requests the applicant attend an independent medical examination under s. 44 of the Schedule with a physician specializing in family medicine.
11I find that the applicant’s attendance at CARC for in facility treatment since shortly after the accident to the date of the OCF-18 in dispute, which was not disputed by the applicant, would make these reasons meaningful for the applicant. I do not find that the reasons provided could be used to deny any treatment no matter its nature; it would have to be a claimant with physical injuries who had been receiving a course of rehabilitation treatment of some frequency in the past that was proposed to continue in intensity and nature. These are reasons specific to the applicant, her condition and the treatment proposed in the OCF-18 in dispute.
Sections 15 and 16 of the Schedule
12The applicant made no submissions and provided no evidence as to whether the OCF-18 in dispute was reasonable and necessary.
13Under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit claimed under the OCF-18 is reasonable and necessary as a result of the accident.
14However, the applicant has provided no submissions or evidence on this point and as such, has not met her burden of proof to show that the OCF-18 is reasonable and necessary.
Interest
15Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments of benefits are overdue, the applicant is not entitled to any interest.
Award
16The 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. As I have found that no benefits were withheld, there is no basis to grant an award.
ORDER
17For the above reasons, I find:
i. The applicant is not entitled to the OCF-18 in dispute or interest.
ii. No award is granted.
Released: June 4, 2025
__________________________
Rasha El Sissi
Adjudicator