Licence Appeal Tribunal File Number: 23-015700/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:
Ria Medalla
Applicant
and
Wawanesa Insurance
Respondent
AMENDED DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Shahzad Ayub, Counsel
For the Respondent:
Nawaz Tahir, Counsel
HEARD:
By way or written submissions
OVERVIEW
1Ria Medalla, the applicant, was involved in an automobile accident on January 3, 2019, 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, Wawanesa Insurance, 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 $2,486.00 for a hyperbaric oxygen treatment, proposed by Imperial Medical Assessments in a treatment plan/OCF-18 (“plan”) dated March 1, 2023?
ii. Is the applicant entitled to $942.62 ($2,365.02 less $1,422.40 approved) for psychological services, proposed by Imperial Medical Assessments in a plan dated March 30, 2023?
iii. Is the applicant entitled to $3,147.50 for physical therapy, proposed by Physiomed Elgin Mills Inc. in a plan dated October 26, 2023?
iv. Is the applicant entitled to $565.00 for medical services, proposed by Imperial Medical Assessments Inc. in a plan dated October 30, 2023?
v. Is the applicant entitled to $2,486.00 for medical services, proposed by Imperial Medical Assessments Inc. in a plan dated April 4, 2023? (This issue has been withdrawn by the applicant in their written submissions.)
vi. Is the applicant entitled to $2,045.74 for an in-home assessment, proposed by Imperial Medical Assessments Inc. in a plan dated October 12, 2023?
vii. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Imperial Medical Assessments in a plan dated January 9, 2023?
viii. Is the applicant entitled to $2,486.00 for an orthopaedic assessment, proposed by Imperial Medical Assessments in a plan dated March 1, 2023?
ix. Is the applicant entitled to $2,200.00 for a social worker assessment, proposed by Imperial Medical Assessments in a plan dated March 21, 2023?
x. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not met her onus to demonstrate entitlement to the benefits claimed.
4No award is payable because no benefits were unreasonably withheld or delayed.
5No interest is payable because no benefits are payable.
PROCEDURAL ISSUES
6The respondent submits that the applicant has failed to abide by the submission page limits set out in the Case Conference Report and Order (“CCRO”) of 10 pages, and later modified by a Motion Order dated April 2, 2024, to increase the page limit to 15 pages. The Motion Order indicates that the applicant’s and respondent’s written submissions will be limited to 15-pages in length, but the applicant’s submissions exceeded this amount by 8 pages.
7The respondent submits that it would be prejudicial if it was required to adhere to the 15-page limit while the applicant exceeded it. It relies on Rule 3.1 of the Common Rules of Practice and Procedure and argues that in order to facilitate a fair and open process and to allow for effective participation by all parties, it should be permitted the same page limit for submissions.
8While I am prepared to consider the full length of the parties’ submissions in this instance, I note that pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, it falls directly within my discretion to strike any submissions in excess of the 15-page limit laid out in the CCRO. However, in this case, I am prepared to admit these non-compliant submissions.
9However, this should not be viewed as tacit acceptance of a blatant breach of the Tribunal’s previous Order. Clearly, the parties have made a tactical decision to breach the CCRO and Motion Order. Instead of risking potential exclusion, the appropriate course of action for both parties would have been to file a timely and additional Notice of Motion and comply with Rule 15 if they seek to vary the written submission page limits.
ANALYSIS
Section 38(8)
10Section 38(8) of the Schedule states:
“Section 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 a impairment to which the MIG applies.”
Section 38 and the hyperbaric oxygen treatment plan denial
11I find that the applicant has not established that the respondent was non-compliant with s. 38(8) in its denial of the hyperbaric oxygen treatment plan.
12The applicant argues that the respondent’s notice was lacking medical reasons for the denial, and that the adjuster is not a medical professional qualified to deny the treatment of a health care professional.
13The respondent argues that they conformed to the requirements of s. 38(8).
14The plan for a hyperbaric chamber assessment was denied on March 1, 2023. In that letter, the respondent advised that it is unable to pay the goods and services because the provider uses unusual, novel, alternative, experimental, or otherwise questionable treatment techniques that may not have scientifically proven therapeutic or diagnostic value. While this denial does not include medical reasons, it is compliant because it provides the “other reasons” for a denial, being that it will not fund experimental treatment. As noted in the Court of Appeal decision Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, the respondent is not required to create a medical reason for a denial where one does not exist.
15I disagree with the applicant that the respondent failed to comply with the requirements of s. 38(8). In my review of their denial, it adhered to the identified elements of s. 38(8).
16I find that the applicant has not established that the respondent failed to comply with the s. 38(8) requirements or that the treatment plan is payable pursuant to s. 38(11).
Section 38 and the outstanding balance of psychological services treatment plan denial
17I find that the applicant has established that the respondent was non-compliant with s. 38(8) in its denial of the psychological services treatment plan. This non-compliance was related to a late delivery of the denial, that was remedied by a late letter from the respondent
18The applicant argues that the respondent did not reply within the allotted 10 business days as set out in s. 38(8). The denial letter was delived to the applicant on the 18th business day. ]
19The respondent did not address the lateness of its denial in their submissions.
20I agree with the applicant that the respondent failed to comply with the 10-business day requirement of s. 38(8).
21Accordingly, s. 38(11) sets out that “the insurer shall 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 a notice described in subsection (8).”
22The applicant has not made submissions indicating that any charges were incurred during the period starting on the 11th business day until the denial was provided on the 18th business day. As such, the respondent does not owe any payment to the applicant for this treatment plan, see Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000 (Divisional Court).
23I find that the respondent’s denial letter March 16, 2023, failed to comply with the s. 38(8) requirements. This non-compliance was cured by a denial provided on the 18th business day. Beyond the late delivery of the denial, the denial its is compliant with the s. 38(8) requirements. The treatment plan is not payable as the applicant as not led evidence that the psychological services were incurred during the period of non-compliance.
Section 38 and the physical therapy treatment plan denial
24I find that the applicant has not proven, on a balance of probabilities, that the respondent was non-compliant with s. 38(8) in its denial of the physical services treatment plan.
25With respect to the denial letter dated April 28, 2023, the applicant argues that the respondent is not a health practitioner and is unable to make a decision regarding a treatment plan certified by a health care practitioner. The applicant also argues that the respondent relies on an improperly compelled s. 44 report to deny the treatment plan.
26The respondent argues that they conformed to the requirements of s. 38(8).
27I find that the denial provided by the respondent identified the goods and services in the treatment plan, and outlined in detail their reasoning for the denial, including multiple, specific references to conclusions from s. 44 assessments.
28I disagree with the applicant that the respondent failed to comply with the requirements of s. 38(8). In my review of their denial, I find that the respondent has provided clear and unequivocal reasoning that comply with the compulsory obligations outlined in section 38 of the Schedule. The applicant has not cited the basis of her claim that the s. 44 report was improperly compelled, nor provided a non-compliant s. 44 notice.
29I find that the applicant has not established that the respondent’s denial notice was non-compliant with s. 38(8), or that the treatment plan is payable pursuant to s. 38(11) of the Schedule.
Section 38 and the medical services treatment plan denial for October 30, 2023
30I find that the applicant has not proven, on a balance of probabilities, that the respondent was non-compliant with s. 38(8) in its denial of the medical services treatment plan.
31The applicant argues that the respondent relies on an improperly compelled s. 44 report.
32The respondent argues that they conformed to the requirements of s. 38(8).
33I find that the denial notice dated November 21, 2023, provided by the respondent identified the goods and services in the treatment plan being denied, and outlined in detail its reasoning for the denial including multiple, specific references to conclusions from s. 44 assessments.
34I disagree with the applicant that the denial letter was non-compliant with the requirements of s. 38(8). In my review of their denial letter, I find that the respondent has provided a clear and unequivocal denial that complies with the compulsory obligations outlined in section 38 of the Schedule. The applicant has not cited the basis of her claim that the s. 44 report was improperly compelled, nor provided a non-compliant s. 44 notice.
35I find that the applicant has not proven, on a balance of probabilities, that the respondent failed to comply with the s. 38(8) requirements.
Section 38 and the in-home assessment treatment plan denial
36I find that the applicant has not proven, on a balance of probabilities, that the respondent did not conform with s. 38(8) in its denial of the in-home assessment treatment plan.
37With respect to the denial letter dated October 26, 2023, the applicant argues that the respondent is not a health practitioner and is unable to make a decision regarding a treatment plan certified by a health care practitioner. The applicant also argues that the respondent relies on an improperly compelled s. 44 report.
38The respondent argues that they conformed to the requirements of s. 38(8).
39I find that the denial provided by the respondent identified the goods and services in the treatment plan, and outlined in detail their reasoning for the denial including multiple, specific references to conclusions from s. 44 assessments.
40I disagree with the applicant that the respondent failed to comply with the requirements of s. 38(8). In my review of the denial notice, I find that the respondent has provided clear and unequivocal reasoning that comply with the compulsory obligations outlined in section 38 of the Schedule. The applicant has not cited the basis of her claim that the s. 44 report was improperly compelled, nor provided a non-compliant s. 44 notice.
41I find that the applicant has not proven, on a balance of probabilities, that the respondent failed to comply with the s. 38(8) requirements.
Section 38 and the chronic pain assessment treatment plan denial
42I find that the applicant has not proven, on a balance of probabilities, that the respondent was non-compliant with the s. 38 requirements in their denial of the chronic pain assessment treatment plan.
43The applicant argues that the respondent compelling a s. 44 assessment is an attempt to secure a second opinion and did not provide a specific reason for the s. 44 assessment.
44The respondent argues that they conformed to the requirements of s. 38(8).
45I find that the denial letter dated February 9, 2023, identified the goods and services in the treatment plan. In their detailed reasoning for the denial, the respondent refers to evidence provided by the applicant’s physiotherapist provided to the respondent that notes that the applicant had recovered from her accident-related impairments.
46I disagree with the applicant that the respondent failed to comply with the requirements of s. 38(8). In my review of its denial letter, it adhered to the identified elements of s. 38(8).
47I find that the applicant has not proven, on a balance of probabilities, that the respondent failed to comply with the s. 38(8) requirements.
Section 38 and the orthopaedic assessment treatment plan denial
48I find that the applicant has proven, on a balance of probabilities, that the respondent was non-compliant with the s. 38 requirements in their denial of the orthopaedic assessment treatment plan. However this non-compliance was cured by the respondent by a denial letter being provided on the 11th business day.
49The applicant argues that the respondent the respondent did not reply with in the allotted 10 business days as set out in s. 38(8).
50The respondent did not address the lateness of their reply in their submissions.
51I agree with the applicant that the respondent failed to comply with the 10-business day requirement of s. 38(8). The respondent does not dispute the applicant’s claim that the denial letter was sent on March 16, 2023, but that the 10-business date timeline expired on March 15, 2023.
52Accordingly, s. 38(11) sets out that “the insurer shall 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 a notice described in subsection (8).”
53The applicant has made no submission indicating that the orthopedic assessment was incurred during the period starting on the 11th business day until the denial was provided on the 18th business day. As such, the applicant has not established that the treatment plan is payable pursuant to s. 38(11).
54Beyond the late delivery of the denial, the denial itself adhered to the requirements of s. 38(8).
55I find that the respondent’s denial letter dated March 16, 2023, failed to comply with the s. 38(8) requirements. However, the treatment plan is not payable as the applicant has not led evidence that the proposed assessment was incurred during the noncompliant period.
Section 38 and the social worker assessment treatment plan denial
56I find that the applicant has not proven, on a balance of probabilities, that the respondent was non-compliant with s. 38(8) in its denial of the social worker assessment treatment plan.
57The applicant argues that the respondent did not provide specific reasons for their denial.
58The respondent argues that they conformed to the requirements of s. 38(8).
59I find that the denial letter dated April 4, 2023, identified the goods and services in the treatment plan, and outlined in detail the respondent’s reasoning for the denial including a specific reference to a psychotherapy progress reports, and that based on the medical evidence they currently have on file a s. 44 assessment would be necessary.
60I disagree with the applicant that the respondent failed to comply with the requirements of s. 38(8). In my review of their denial, it adhered to the identified elements of s. 38(8).
61I find that the applicant has not proven, on a balance of probabilities, that the respondent failed to comply with the s. 38(8) requirements.
Interest
62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No interest is payable because no benefits are payable.
Award
63The 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.. No award is payable because no benefits were unreasonably withheld or delayed.
ORDER
64I find that:
i. I find that the applicant has established entitlement to the benefits claimed.
ii. I find that the applicant has not established entitlement to the benefits claimed.
iii. No award is payable because no benefits were unreasonably withheld or delayed.
iv. No interest is payable because no benefits are payable.
Released: July 7, 2025
__________________________
Robert Rock
Adjudicator