Lori Hembruff v. TD General Insurance Company, 2025 CanLII 55806

Citation: Hembruff v. TD General Insurance Company, 2025 ONLAT 23-009441/AABS

Licence Appeal Tribunal File Number: 23-009441/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:

Lori Hembruff

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Gordon W. Harris, Counsel

For the Respondent: Tessie Kalogeras, Counsel Kamil Podleszanski, Counsel

HEARD: By way of Written Submissions

OVERVIEW

1Lori Hembruff, (the “applicant”), was involved in an automobile accident on March 12, 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 TD General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2On September 29, 2023, the respondent determined that the applicant sustained a catastrophic impairment based on Criterion 8.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $2,260.00 ($18,532.00 less $16,272.00 approved) for catastrophic assessments, proposed by Kaplin and Levitt Psychologists in a treatment plan (“OCF-18”) dated May 5, 2022?

ii. Is the applicant entitled to $2,200.00 for an ENT assessment, proposed by Dr. Stewart ENT in an OCF-18 dated December 16, 2021?

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

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

RESULT

4I find that:

i. The applicant is not entitled to the remaining balance of $2,260.00 for the catastrophic assessments, nor interest in accordance with s. 51 of the Schedule.

ii. The applicant is not entitled to the OCF-18 in the amount of $2,200.00 for the cost of an ENT assessment, nor interest in accordance with s. 51 of the Schedule.

iii. The respondent is not liable to pay an award.

iv. The application is dismissed.

PROCEDURAL CONTEXT

5I note that both the Case Conference Report and Order (“CCRO”) released on January 31, 2024, and the respondent in its submissions identified $2,000.00 being in dispute for issue (i). Meanwhile, the applicant argues in her submissions that for issue (i), the amount in dispute is $2,260.00. I find that for issue (i) the amount in dispute is $2,260.00 because the respondent in its submissions acknowledged that it partially approved the OCF-18 on June 27, 2022 in the amount of $16,272.00. As the total amount of the OCF-18 was for $18,532.00, the remaining balance is $2,260.00 ($18,532.00 minus $16,272.00 equals $2,260.00).

6Likewise, I note that the CCRO and the respondent identified that $2,595.50 was in dispute for issue (ii). However, the applicant claims that the amount in dispute is $2,200.00 for the incurred assessment plus HST. Therefore, I find that the amount in dispute for issue (ii) is $2,200.00, as the applicant is seeking a lesser amount than the one outlined in the OCF-18.

PROCEDURAL ISSUES

The respondent’s sur-reply submissions

7For the reasons outlined below, I deny the respondent’s request for leave to file a sur-reply.

8On September 6, 2024, the respondent filed a Notice of Motion seeking leave from the Tribunal to file sur-reply submissions to address the applicant’s reply submissions with respect to s. 38(8) of the Schedule and attached a copy of these sur-reply submissions with its motion material. The respondent argues that at paragraph 10 of the applicant’s reply submissions, she incorrectly submitted that the respondent conceded that no medical reasons were provided, incorrectly attempted to argue that Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) (“Turner”) is not applicable to the subject case, and cited s. 38(8) of the Schedule and caselaw for the first time in reply. Ultimately, the respondent argues that it should be permitted to file sur-reply submissions because the applicant’s reply introduced case law and s. 38(8) for the first time, raised additional arguments regarding Turner, and mischaracterized the respondent’s evidence.

9The applicant argues that a sur-reply is not warranted because her reply submissions were not improper, that she responded directly to the respondent’s initial submissions, and that she provided case law in response to the unanticipated case law raised by the respondent, being Turner. As a result, she argues that her submissions were a proper reply because she could not have reasonably anticipated that the respondent would have raised the authority of Turner in its initial submissions because it was based on an outdated version of the Schedule.

10Both parties referred me to the Tribunal Decision of Godber v. Aviva Insurance Company, 2021 CanLII 69333 (ON LAT) (“Godber”) where it was held:

Sur-reply submissions should only be provided in limited or exceptional circumstances. They are not intended to be an additional opportunity for parties to bolster their case or supplement previous submissions.

Sur-reply submissions may only be necessary when a party has made additional legal arguments or introduced additional issues in reply, provided an inaccurate statement of the law, or an inaccurate statement of facts critical to the determination of the issues in dispute.

11I am persuaded by the approach taken in Godber to the question of when a sur-reply is warranted. By applying the test in Godber, I find that the facts in this matter do not warrant a sur-reply.

12I find that paragraph 10 of the applicant’s reply submissions are proper and does not mischaracterize the respondent’s evidence. This is because the respondent in its initial hearing submissions at paragraph 43 argued “As the basis of the denials were not medical in nature, the insurer listed its reason for denial, in compliance with section 38(8) of the Schedule.” Therefore, I find that the applicant’s reply submissions were proper to point out the respondent had conceded on this point.

13I acknowledge that the respondent in its motion submissions now argues that instead it was arguing that the denial letter mentioned medical reasons, a plain reading of its initial submissions indicates otherwise. As noted in Godber, sur-reply submissions are not an additional opportunity for parties to bolster their case or supplement previous submissions, which I find the respondent is attempting to do here.

14I also disagree with the respondent’s argument that the applicant improperly argued that Turner was not applicable to the factual matrix before me. At paragraph 44 of its initial submissions, the respondent cited the authority of Turner for the proposition that the Court of Appeal recognized that notice must be clear and unequivocal, that the reasons do not need to be legally correct, and the purpose of the notice requirement is to give reasons to permit the insured to decide whether or not to challenge the cancellation. In response, at paragraph 10 of her reply submissions, the applicant argued that Turner applied to an older version of the Schedule and s. 38(8) is clear that insurers are required to provide medical and all of the other reasons for denying the OCF-18s. I find that the applicant’s submissions on this point are proper because Turner was rendered on an earlier version of the Schedule that did not require medical and all of the other reasons to be included in the notice.

15Moreover, while Turner was endorsed in other Tribunal decisions and the Divisional Court in relation to s. 38(8), it was for the rationale that where reasons are required, they must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination. In other words, Turner does not stand for the proposition that insurers do not need to provide medical reasons under s. 38(8). In short, the applicant’s reply submissions were proper because they addressed arguments raised in the respondent’s initial submissions.

16The respondent also argues that the applicant raised new arguments in response to the application of Turner to the present case. I disagree. The respondent raised the authority of Turner in its submissions and therefore the applicant responded to the applicability of this authority in her reply submissions, which accords with the purpose of a reply.

17I also disagree with the respondent that the applicant’s reply submissions with respect to s. 38(8) constitute new arguments or evidence that warrant a sur-reply. This is because in her initial submissions, the applicant argued that the respondent did not deny the ENT assessment on the basis of any medical reasons. In response, the respondent in its submissions, cited s. 38(8) and Turner. As a result, the applicant in reply argued that s. 38(8) required medical and all of the other reasons for the denial. The applicant also cited a previous Tribunal decision to support her position that without medical reasons, the denial was non-compliant with s. 38(8).

18I find this to be a proper reply because while the applicant did not raise s. 38(8) in her initial submissions, the respondent clearly knew that the applicant was arguing s. 38(8) non-compliance because it made submissions on why it’s denials were compliant with s. 38(8). Therefore, the applicant is entitled to provide responding submissions on why she disagreed with the respondent’s position since from the onset of initial submissions, her position was that no medical reasons had been provided in the denial letter.

19As I have determined that the applicant’s submissions did not mischaracterize the respondent’s evidence, were not improper, and did not introduce new arguments or evidence, I decline leave for the respondent’s sur-reply submissions to be admitted into the record.

ANALYSIS

The applicant is not entitled to the remaining balance of $2,260.00 for an OCF-18 for catastrophic assessments

20I find that the respondent’s denial letter of June 27, 2022, was compliant with s. 38(8) of the Schedule, and therefore the consequences under s. 38(11) are not triggered. I also find that the applicant has not established that the remaining cost of $2,260.00 is reasonable.

21Where an insurer has not properly denied a treatment plan in accordance with s. 38 of the Schedule, the benefit becomes payable. Section 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decision. Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) of the Schedule, which includes the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.

22The applicant argues that the respondent did not provide any medical reasons in its denial.

23The respondent argues that as the denials were not medical in nature, it listed its reasons for denial and so long as the denial letter provided a principled rationale for the denial which the applicant can dispute, it is valid.

24In its denial letter, dated June 27, 2022, the respondent provided the following reasons for partially approving the OCF-18 for catastrophic assessments:

We do not agree to pay for any of the following goods, services and/or assessments for medical reasons and all other reasons known as of the date of this notice as follows:

Review by Directing Physician and Final CAT Determination ($2000.00)

This fee is inclusive of the Executive Summary costs.

25I find that the denial letter is compliant with s. 38(8) of the Schedule because the respondent provided all of the other reasons for the denial for the remaining cost of the OCF-18. The reason was that the fee was inclusive of the executive summary costs.

26While the parties did not refer me to this Court of Appeal decision, I am bound by it: Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 (“Varriano”).

27In Varriano, the Court of Appeal concurred with Vice Chair Boyce that an insurer is not required to fabricate a medical reason where none exists. I note that Varriano was in relation to s. 37(4) which requires the insurer to provide the medical and any other reasons for the denial of specified benefits, and s. 38(8) requires the insurer to provide the medical reasons and all of the other reasons why the assessment/treatment is not reasonable and necessary. However, the Court of Appeal made clear in Varriano that if an insurer is relying on a non-medical ground to deny the applicant of their benefits, then the provision requires only that the insurer provide notice of the non-medical reason for its denial. Here, in the matter before me, the respondent’s denial letter was clear that the Review by Directing Physician and Final CAT Determination portion was not payable because the fee was inclusive of costs associated with the Executive Summary also proposed in the OCF-18. I agree with the respondent that no medical reasons were provided because it was denied for non-medical reasons.

28I find the respondent’s denial letter dated June 27, 2022, was compliant with s. 38(8) of the Schedule. I now turn to whether the remaining cost of $2,260.00 for a Review by Directing Physician and Final CAT Determination is reasonable and necessary, I find that it is not for the following reasons.

29The applicant argues that the respondent approved all of the costs associated with the OCF-18 with the exception of a review by directing physician and final CAT determination because the respondent suggested that this fee should have been included in the executive summary component of the assessment. The applicant argues that the OCF-18 explains the difference between the executive summary and file review, which is largely that one will be conducted by a psychologist and the other by a physician. She argues that under s. 45(2)1 of the Schedule and the Tribunal decision of Lanzon v. Economical Insurance Company 2023 CanLII 119806, the review by a physician is a necessary component of a catastrophic assessment determination and cannot be reasonably grouped in with the executive summary component.

30First, I find the OCF-18 demonstrates that both the executive summary and review by directing physician are similar with the exception of a final confirmation of opinions and rating to determine catastrophic status. The applicant has not addressed why the cost of $2,260.00 is reasonable to conduct a final confirmation and rating. Nor has the applicant referred me to evidence to establish that a review by a directing physician is reasonable when similar services are being conducted in the executive summary. I am alive to the applicant’s position that the time required to review the applicant’s medical brief, the other assessments and to make a conclusion about the catastrophic determination is reasonable, however she has not referred me to evidence to support such a proposition. Indeed, while the OCF-18 outlines both an executive summary and review by directing physician, it does not address why both are required when they propose similar services.

31Second, I am not persuaded by the applicant’s position that s. 45(2)1 and Lanzon supports that the costs associated with the file review are reasonable and necessary. Section 45(2)1 states that an assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals. However, in the matter before me, the physician has already completed an approved assessment. In my view, s. 45(2)1 does not state that a review by a physician is automatically payable, especially here where the assessment by the physician has been approved, and the applicant has not tendered sufficient evidence to establish that a review is required on top of an executive summary.

32Likewise, the authority of Lanzon does not assist the applicant’s position that a review by a physician is reasonable in addition to an executive summary and an assessment (already conducted by the physician). Rather, at paragraph 32, the Tribunal determined that s. 45(2)1 requires a physician to “conduct” the assessment. As noted above, the respondent has already approved the cost of an assessment to be conducted by the physician, and the Tribunal in Lanzon did not endorse that a review by a physician is reasonable especially when an assessment and an executive summary were completed.

33I also acknowledge the applicant’s position that at paragraph 34 of Lanzon, the Tribunal determined that Dr. Becker “conducted” the assessment with the intent of s. 45(2)1 because he reviewed the applicant’s medical brief, and identified the regulated health professionals whose assistance they required in order to come to their own opinion on catastrophic impairment. Significantly, the applicant has not tendered evidence, such as the assessment report conducted by the physician or the review, therefore I am unable to determine whether the medical brief was reviewed in the review or whether the physician identified which health professionals she required assistance with.

34For all these reasons, I find that the applicant has not established on a balance of probabilities that the costs associated with the review of the physician is reasonable and necessary.

The applicant is not entitled to $2,200.00 for a ENT assessment, proposed in an OCF-18 dated December 16, 2021

35I find that the respondent’s denial letter, dated December 20, 2021 was compliant with s. 38(8) of the Schedule, and therefore the consequences under s. 38(11) are not triggered. I also find that the applicant has not established on a balance of probabilities that the proposed ENT assessment is reasonable and necessary.

36The applicant argues that the respondent denied the assessment without providing any medical reasons, and therefore was non-compliant with s. 38(8) which requires the insurer to provide medical and all of the other reasons for why the assessment is not reasonable and necessary.

37The respondent argues that the assessment was denied for non-medical reasons.

38In its denial letter, dated December 20, 2021, the respondent provided the following reasons for denying the OCF-18:

Based on section 25 Occupational Therapy Attendant Care Assessment Needs dated October 18, 2021, and completed by Karla May of May Rehabilitation Inc., Ms. Hembrnff has a "referral in place" to see Dr. Jayant Ramakrishna, Otolaiyngology.

Furthermore, a consultation note dated June 24, 2021 indicates that Ms. Hembrnff was seen by Dr. Jayant Ramakrishna to which he indicated "no worrisome ear pathology noted today" and "for the patient's tinnitus, they were counselled on triggers including alcohol, caffeine, stress and poor sleep hygiene. She has been "counselled on white-noise masking techniques and hearing protection."

Based on the above, this request for ENT assessment would be a duplication of service.

39I find that the denial letter is compliant with s. 38(8) of the Schedule because the respondent provided all of the other reasons for the denial which was that the proposed ENT assessment was a duplication of services as the applicant already underwent a consultation with Dr. Ramakrishna, an otolaryngologist. This denial is in accordance with the principles set out in the Court of Appeal Decision of Varriano, which is that if the insurer is relying on a non-medical ground to deny an benefit, then the provision requires that the insurer provide notice of the non-medical reason in its denial. Here, the respondent’s denial was clear that the denial was based on the fact that the respondent believed the proposed assessment was a duplication of services since a previous consultation had already been conducted by an otolaryngologist.

40In conclusion, I find that the respondent’s denial letter of December 20, 2021 was compliant with s. 38(8), I now turn to whether the proposed ENT assessment is reasonable and necessary. I find that it is not.

41In determining whether an assessment is reasonable and necessary, I note that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing that there are grounds to suspect she has the condition for which she seeks the assessment.

42The applicant argues that as a result of the accident, she has ongoing headaches, nausea, fatigue, sound/light sensitivity, dizziness, balance issues, and tinnitus. The applicant also argues that Dr. Michel Rathbone, neurologist recommended that the applicant be referred to a neuro-otologist for her persistent tinnitus and dizziness, that Dr. Ramakrishna did not provide sufficient recommendations, treatment, or management strategies for her bilateral presbycusis with secondary bilateral tinnitus, and that Dr. Ramakrishna did not assess possible causes or courses of treatment for the applicant’s dizziness, nausea or fall risks. To support her position, she relies upon the clinical notes and records of Dr. Ramakrishna, and the section 25 reports of Dr. Brian Levitt, psychologist, Dr. Rathbone, Ms. Kayla May, occupational therapist, and Dr. Craig Stewart, otolaryngologist.

43The respondent argues that the applicant already underwent an assessment with Dr. Ramakrishna, who is an OHIP-funded otolaryngologist, and she is superior in her expertise than Dr. Stewart. Moreover, the respondent argues that it is a duplication of services for the applicant to undergo another ENT assessment when an assessment was already conducted by Dr. Ramkirshna, an otolaryngologist.

44First, Dr. Rathbone recommended a referral to a neuro-otologist because of the applicant’s persistent dizziness and tinnitus. Significantly, the ENT assessment was conducted by Dr. Stewart, who is an otolaryngologist, just like Dr. Ramakrishna. I acknowledge that the applicant heavily relies upon Dr. Rathbone’s recommendation to support the reasonableness and necessity of the ENT assessment, however as noted above, I find that the applicant has not established that Dr. Stewart is a neuro-otologist, and has the same qualifications as Dr. Ramakrishna who has assessed the applicant on June 24, 2021. In short, the fact that Dr. Rathbone recommended a referral to a neuro-otologist does not establish that the proposed ENT assessment is reasonable and necessary because the applicant has not established that Dr. Stewart is a neuro-otologist.

45Second, I find that the applicant took no steps to seek a further assessment from Dr. Ramakrishna for further treatment or management strategies. I acknowledge the applicant’s argument that despite being diagnosed with secondary bilateral tinnitus, Dr. Ramakrishna provided insufficient recommendations for treatment or management strategies. I do not concur because on June 24, 2021, Dr. Ramkrishna advised the applicant that triggers for tinnitus included alcohol, caffeine, stress, and poor sleep hygiene. Dr. Ramkrishna also recommended white noise masking techniques and hearing protection. I also note that the applicant advised Dr. Rathbone that she was using these techniques as recommended by Dr. Ramkrishna. Significantly, the applicant has not tendered evidence to support that she requested a further assessment or consultation, despite reporting issues with tinnitus and dizziness to Dr. Rathbone, Dr. Levitt, and Ms. May. The applicant was referred to Dr. Ramkrishna by her family physician, and the last entry (November 24, 2021) does not support that the applicant took any steps to be referred back to Dr. Ramkrishna. Indeed, on November 24, 2021, Dr. Avnreet Alangh recommended physiotherapy treatment for the applicant’s dizziness.

46In short, I acknowledge the applicant’s position that she has ongoing tinnitus which limits her ability to complete her pre-accident activities, and had a severe handicap due to dizziness as noted by Dr. Rathbone. However, Dr. Rathbone recommended a referral to a neuro-otologist. In a similar vein, I acknowledge that the applicant argues that she had ongoing tinnitus and dizziness even after seeing Dr. Ramkrishna, but she has taken no steps to seek further medical attention from Dr. Ramkrishna to determine whether there is additional treatment or management strategies, if the current ones are ineffective.

47Third, the applicant argues that an ENT assessment is reasonable and necessary because she was never assessed for severe dizziness, nausea and fall risk. However, the applicant has not referred me to evidence to support that any practitioner (treating or non- treating) has recommended an ENT assessment to address these issues. Rather, Dr. Rathbone recommended a referral to a neuro-otologist, which the applicant has not established that Dr. Stewart is qualified in.

48For the reasons outlined above, I find that the applicant has not met her burden to establish that the proposed ENT assessment is reasonable and necessary.

Interest is not payable

49As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

The respondent is not liable to pay an award

50The applicant sought an award under section 10 of Reg. 664. Under section 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.

51Having concluded that the applicant is not entitled to any benefits, it follows that no benefits were unreasonably withheld or delayed and thus, no award is payable. I also note that the applicant in her submissions withdrew the issues of whether she was entitled to Income Replacement Benefits, Attendant Care Benefits, three OCF-18s and an OCF-6, which were in dispute according to the Case Conference Report and Order, released on January 31, 2024. However, the applicant provided no specific submissions on why she would be entitled to an award for these withdrawn issues, nor did she tender evidence to support such a position. Thus, I find that the applicant has not established that she is entitled to an award with respect to the withdrawn issues.

ORDER

52For the reasons outlined above, I find that:

i. The applicant is not entitled to the remaining balance of $2,260.00 for the catastrophic assessments, nor interest in accordance with s. 51 of the Schedule.

ii. The applicant is not entitled to the OCF-18 in the amount of $2,200.00 for the cost of an ENT assessment, nor interest in accordance with s. 51 of the Schedule.

iii. The respondent is not liable to pay an award.

iv. The application is dismissed.