Licence Appeal Tribunal File Number: 23-010246/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:
Applicant (By his litigation guardian, C.D)
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Yalda Aslamzada, Counsel
For the Respondent: Joanne R. Witt, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1The 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 the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
[2] The issues in dispute are: i. Is the applicant entitled to $4,736.90 for oculo-visual treatment, proposed by C.A. Rehab Centre in a treatment plan/OCF-18 (“plan”) dated August 26, 2022? ii. Is the applicant entitled to $4,058.17 for medical services, proposed by C.A Rehab Centre in a plan submitted October 24, 2022? iii. Is the respondent liable to pay an award under s. 10 of Reg.664 because it unreasonably withheld or delayed payments to the applicant? iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that the denial notices for the treatment plans in dispute contravene s.38(8) of the Schedule. The treatment plans are not payable on this basis and the applicant has made no submissions on the reasonableness and necessity of the plans. Therefore, the treatment plans and interest are not payable.
4The respondent is not liable to pay an award.
PROCEDURAL ISSUES
The applicant did file late documentation
5In its hearing submissions, the respondent requests that an adverse inference be drawn since the updated records of C.A. Rehabilitation Centre (“CARC”) and the education files listed in the Case Conference Report and Order (“CCRO”) dated March 13, 2024 were not provided to the respondent prior to the final production deadline of April 19, 2024. I find that although the applicant did file the updated records of CARC with the reply submissions, it is not necessary to draw an adverse inference since the applicant makes no submissions whether the treatment at CARC is reasonable and necessary.
ANALYSIS
6The applicant makes no submissions as to the reasonableness or necessity of the treatment plans in dispute. The applicant argues that the respondent made procedural errors. The applicant submits that these procedural errors should result in a finding that the disputed benefits payable.
7Section 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.
8If 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).
9Section 44(5) of the Schedule provides that an insurer shall give notice of an examination with the medical and other reasons for the examination.
10The 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. The denial should allow an unsophisticated person to understand the denial and make an informed decision in response.
Is the oculo-visual treatment payable?
11I find that the applicant has not established that the plan dated August 26, 2022 is payable.
12The plan for an oculo-visual treatment dated August 26, 2022, is by Dr. J. C, optometrist, of CARC, in the amount of $4,736.90. The respondent wrote to the applicant on October 28, 2022 denying the benefits, within 10 business days after receiving the plan on October 14, 2022. The respondent stated in the letter dated October 28, 2022, that it scheduled an in-person Insurer’s Examination (“IE”) with Dr. C.B., ophthalmologist, for March 28, 2023, to determine whether the proposed plan is reasonable and necessary.
13The applicant submits that the October 28, 2022 letter was an improper denial with limited, non-specific explanations, and the respondent cannot rely on the IE report of Dr. B. since it’s based on an improper denial. The applicant submits that the notice of examination (“NOE”) dated October 28, 2022 is also non-compliant with s.44(5) of the Schedule based on the improper denial.
14The October 28, 2022 letter states that “there appear to be pre-existing or concurrent medical conditions exist that might affect the patient’s care, treatment, and prognosis”. The respondent further stated that “the type of treatment does not appear consistent with the patient’s diagnosis”. The respondent also stated that in the absence of CNR’s, it required an Insurer’s Examination (“IE”) to determine whether the recommended treatment is reasonable and necessary for the applicant’s accident-related injuries. The respondent also included the name of the assessor, with the date, time and location of the in-person assessment.
15The respondent provided a copy of Dr. B. report to the applicant by letter dated September 18, 2023, which indicates the applicant has pre-existing insignificant refractive error and dry eye disease, with no accident-related injuries. The respondent based its denial dated September 18, 2023, on the conclusions of Dr. B. of no ophthalmological diagnosis or oculo-visual impairment which do not require treatment.
16I find that the October 28, 2022 notice letter was compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notices, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
17Since I have found that the respondent’s denial notice dated October 28, 2022 was a valid notice, it is not necessary to determine whether further notices dated April 5, 2023 and September 18, 2023 were also valid notices regarding the same issue. I also find it unnecessary to decide whether the NOE for the s. 44 examination was noncompliant.
18Given that the respondent provided proper notice and no submissions as to why this plan is reasonable and necessary, I find that the applicant has not met his burden to establish entitlement to this plan.
Is the plan for physical therapy and assistive devices payable?
19I find that the applicant has not established that the October 4, 2022 plan is payable because the respondent’s denial notices were compliant with the Schedule.
20The plan dated October 4, 2022 for physical therapy services by N.K, physiotherapist, of CARC was submitted on October 24, 2022, in the amount of $4,058.17. The respondent wrote to the applicant on November 4, 2022, which is within 10 business days after receiving the plan as required by the Schedule.
21In the denial letter, the respondent stated that “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 respondent further stated that the patient’s subjective physical complaints appear to remain unchanged despite continuing treatment. In addition, the respondent stated that it required an IE scheduled for December 9, 2022, with Dr. J.P, general practitioner, to determine whether the recommended treatment is reasonable and necessary for the injuries the applicant sustained as a result of the accident.
22The applicant submits that the November 4, 2022 letter was an improper denial with limited, non-specific explanations and the respondent cannot rely on the IE report of Dr. J. because it’s based on an improper denial. The applicant submits that the NOEs dated November 4, 2022 and December 7, 2022 are also non-compliant with s.44(5) of the Schedule based on the improper denial.
23An IE was rescheduled with Dr. P.J, general practitioner to take place on January 28, 2023.
24Following the IE, by letter dated February 17, 2023, the respondent provided a copy of the report of Dr. J. dated February 6, 2023, in which Dr. J. found that the applicant had reached maximum medical improvement and concluded that further facility-based therapy would not be of significant added benefit than a self-directed exercise program.
25The respondent denied the benefits on February 17, 2023 on the basis that they are unreasonable and unnecessary. The respondent submits that it has paid for incurred treatment at CARC up to July 31, 2023.
26I find that the November 4, 2022 notice letter was compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notices to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
27Since I have found that the respondent’s denial notice dated November 4, 2022 was a valid notice, it is not necessary to determine whether further notices dated December 7, 2022 and February 17, 2023 are also valid notices regarding the same issue. I also find it unnecessary to determine whether the NOE for a s.44 examination was noncompliant.
28Given that the respondent provided proper notice and no submissions as to why this plan is reasonable and necessary, I find that the applicant has not met his burden to establish entitlement to this plan.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
Award
30The 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. I find an award is not appropriate because the respondent did not unreasonably withhold payment as the denials were based on reasonable, objective assessments of the applicant.
ORDER
31For the reasons set out above, I find that:
i. The treatment plans in dispute are not payable; ii. The applicant is not entitled to interest or an award; and, iii. The application is dismissed.
Released: June 27, 2025
Lisa Holland Adjudicator