Citation: Sivagnanasundram v. Security National Insurance Company, 2025 ONLAT 23-009922/AABS

Licence Appeal Tribunal File Number: 23-009922/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:

Maheswaran Sivagnanasundram

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Justin Mariani, Paralegal

For the Respondent:

Nicole De Bartolo, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Maheswaran Sivagnanasundram, the applicant, was involved in an automobile accident on July 1, 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, Security National 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 an income replacement benefit (“IRB”) in the amount of $202.67 per week from August 11, 2023 to date and ongoing?

ii. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $2,588.30 per month from May 27, 2023 to date and ongoing?

iii. Is the applicant entitled to $448.46 ($3,476.68 less $3,027.82 approved) for psychological services, proposed by Scarborough Rehabilitation Clinic in a treatment plan/OCF-18 (“plan”) dated January 26, 2023?

iv. Is the applicant entitled to $2,545.00 for physiotherapy services, proposed by Scarborough Rehabilitation Clinic in a plan dated January 31, 2023?

v. Is the applicant entitled to $448.80 ($3,416.68 less $2,967.88 approved) for psychological services, proposed by Scarborough Rehabilitation Clinic, in a plan dated October 24, 2023?

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

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

RESULT

3The applicant is not entitled to an IRB in the amount of $202.67 for the post 104-week period from August 11, 2023 to date and ongoing;

4The applicant is not entitled to ACBs in the amount of $2,588.30 per month from May 27, 2023 to date, and ongoing;

5The applicant is not entitled to the disputed treatment plans;

6No interest is payable; and,

7The respondent is not liable to pay an award to the applicant.

ANALYSIS

The applicant is not entitled to a post 104-week IRB

8I find that the applicant has not established on a balance of probabilities that he is entitled to post 104-week IRBs for the period of August 11, 2023, to date and ongoing.

9To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

10The applicant is claiming entitlement to an IRB post-104 weeks after the accident for the period from August 11, 2023 to date and ongoing. The applicant does not address how he has a complete inability to engage in any employment or self-employment for which he is suited by education, training or experience as a result of the accident. Therefore, I find that the applicant has not demonstrated entitlement to an IRB under s.6 of the Schedule.

11Specifically, the applicant does not address the question of whether he satisfies the test for post-104-weeks IRBs, and instead, focuses exclusively on the respondent’s denial of the specified benefit. Therefore, the applicant has not demonstrated how he can discharge his onus.

s. 36(4) and s. 37 of the Schedule

12I find that the applicant has not established that IRBs are payable due to non-compliance with s. 36(4) of the Schedule.

13Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed disability certificate (“OCF-3”) for IRBs, the insurer shall:

a. Pay the specified benefit;

b. Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

c. Send a request to the applicant under s. 33(1) or s. 33(2).

14If an insurer fails to comply with ss. 36(4) or (5) within the applicable time limit, s. 36(6) states that it must pay the specified benefit until a notice in accordance with s. 36(4)(b) is given.

15Section 37(1)(b) provides that if an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer may, but not more often than is reasonably necessary, notify the insured person that the insurer requires an examination under section 44.

16Section 44(5) of the Schedule provides that an insurer shall give notice of an examination with the medical and other reasons for the examination.

17The applicant submitted a completed OCF-3 on January 31, 2023. By way of letter dated February 9, 2023, the respondent confirmed receipt of the OCF-3 and requested the applicant’s attendance at s. 44 examinations to determine his entitlement to post 104-week IRBs. The applicant attended the requested s. 44 examinations, and in subsequent correspondence dated August 2, 2023, the respondent denied the applicant’s claim for post 104-week IRBs relying on its s. 44 reports.

18The applicant argues that the denial notice, dated August 2, 2023, is non-compliant with s. 36(4) because it did not meet the requirement to provide a medical reason for denying the IRBs. He argues that the respondent provided non-specific explanations. Therefore, the applicant argues that the IRBs are payable pursuant to the mandatory “shall pay” provision of s. 36(6).

19He further argues that this non-compliance was not cured by the subsequent correspondence dated April 20, 2023 and June 29, 2023. The applicant submits that all of the s. 44 reports were improperly obtained, since the February 9, 2023 letter is similarly non-compliant with s. 44(5) of the Schedule. As such, he argues that the respondent should not be permitted to rely on any of the improperly procured s. 44 reports, it was similarly non-compliant with the Schedule, and IRBs should be payable on an ongoing basis.

20I am not persuaded by the applicant’s argument that the respondent’s denials are non-complaint with s. 36(4) and s. 44(5) of the Schedule. In its February 9, 2023 letter, the respondent stated that it was requiring a s. 44 examination, as it had been provided with an OCF-3 dated January 31, 2023, completed by Dr. Majid Arabkhari, chiropractor. In an earlier letter dated January 17, 2023, the respondent made a s. 33(1) request for the applicant’s decoded OHIP summary, prescription summaries, hospital records, diagnostic imaging, and all treatment practitioners and specialists. No information has been provided as to whether and when the s. 33 request was fulfilled.

21I find that the August 2, 2023 letter is a valid denial since the respondent provided the applicant with copies of IE reports dated July 20, 2023, by Dr. Andrew Holland, chiropractor; Dr. David Berbrayer, physiatrist; Dr. Daniel Cohen, psychologist; Dr. Garry Moddel, neurologist; and Ruth Billet, vocational specialist. The respondent stated in the denial letter that the applicant does not have a musculoskeletal, psychological or neurological inability to engage in any type of employment for which he is suited by education, training or experience.

22Since I have found that the respondent’s denial notice dated August 2, 2023 was a valid notice in providing medical and other reasons for the denial, it is not necessary to determine whether further notices dated April 20, 2023 and June 29, 2023 were also valid notices regarding the same issue. I also find it unnecessary to decide whether the notice of examination (“NOE”) for the post-104-week IRB s. 44 examinations were non-compliant.

23Given that the respondent provided proper notice and no submissions as to why the applicant is entitled to post 104-week IRBs, I find that the applicant has not met his burden to establish entitlement to IRBs at a rate of $202.67 from August 11, 2023 to date and ongoing.

The applicant has not demonstrated that ACB are reasonable and necessary or that the respondent’s denial is non-compliant

24I find that the applicant is not entitled to ACB as he has not demonstrated that attendant care is reasonable and necessary for his accident-related injuries, nor has he provided a reasonable explanation for his limited participation in an IE to determine his entitlement to an ACB.

25The applicant claims that he is entitled to ACB of $2,588.30 per month from May 27, 2023 to date and ongoing, however, he makes no submissions to explain whether attendant care is reasonable and necessary for his accident-related injuries. Rather, the applicant argues that the respondent’s denial is non-compliant.

26Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. The monthly amount of attendant care that an applicant is entitled to is determined in accordance with a form called an Assessment of Attendant Care Needs (“Form-1”). In addition, as argued by the respondent, s. 42(14)(b) of the Schedule allows an insurer to dispense with its obligation to pay an ACB for the period after “the person failed or refused to comply…and before the insured person submits to the examination”. Further, s. 42(15)(c) states that s. 42(14) does not apply if an insured person has a “reasonable explanation for not complying”.

27Section 44(1) of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE. This section stipulates that this must not be done more often than is “reasonably necessary.”

28Section 44(9)(2)(iii) of the Schedule requires an insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.

29The applicant submits that the respondent’s NOE dated July 11, 2023 was non-compliant with the Schedule, because it does not provide a reason that the applicant could understand, since the attendant care assessment was approved, and then the respondent required an IE to determine his entitlement to ACBs.

30The applicant further argues that since the IE report dated December 20, 2023 by Dawn Li, occupational therapist, provides an inconclusive opinion on the applicant’s entitlement to an ACB, therefore, the respondent has not delivered a proper denial.

31The respondent submits that the letter dated July 11, 2023 is compliant with the Schedule. The respondent states in the letter that the applicant was removed from the MIG on psychological grounds, and he sustained sprain/strain type physical injuries. The respondent further stated that since it has been two years after the accident, it requires an IE to determine his eligibility for an ACB. The respondent also stated that the requested documents under s. 33 have not been received.

32The respondent argues that the applicant did not fully participate with the occupational therapy IE assessment on September 14, 2023 with Dawn Li, occupational therapist, because he fell asleep during the assessment, and therefore, he has not complied with s.44(9) of the Schedule.

33I find that the respondent provided a compliant denial on July 11, 2023 because it provided the necessary details of the assessor, the date, time, and location of the assessment. By undergoing the IE assessment, the applicant waived any recourse he may have had against the respondent for failure to provide medical reasons in its NOE. To deem ACBs payable for a breach of s. 44(5) would be to read into the Schedule a remedy that is not provided.

34I find on a balance of probabilities that the applicant is not entitled to ACB, as he has not demonstrated that he requires attendant care for his accident-related injuries, nor has he made any submissions to provide a reasonable explanation for his non-compliance with the respondent’s IE.

35I find that the applicant makes no substantive submissions regarding his entitlement to the disputed treatment plans to explain why the goals are necessary as a result of the accident and/or whether the costs are reasonable. 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 are payable.

36To receive payment for a treatment plan (OCF-18) under s. 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. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.

37Section 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.

38If 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).

39The 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.

Plan dated January 26, 2023 for the outstanding amount of $448.46

40I find that the applicant has not established that the outstanding balance of the plan dated January 26, 2023 is payable.

41The applicant submitted a plan dated January 26, 2023, for psychological services in the amount of $3,476.68, proposed by Scarborough Rehabilitation Clinic. The respondent partially approved the treatment plan in the amount of $3,027.82, which included all treatment, communication with providers, testing and documentation. The respondent denied the proposed six hours of planning services at a rate of $149.61 per hour and approved three hours of planning services at the proposed rate, for a difference of $448.46.

42The applicant made no submissions regarding whether the outstanding amount for planning services is reasonable and necessary and, instead, relied solely on his argument that the respondent’s denial was non-compliant under s.38(8) of the Schedule such that the outstanding amount of the treatment plan is payable.

43The applicant submits that the denial notice dated August 2, 2023, for the unapproved portion of the plan for planning services was based on arbitrary reasons in an IE report. The applicant further submits that the respondent previously approved the full amount for planning services in other plans. The applicant does not explain why thirty minutes of planning services per session is reasonable and necessary.

44The respondent submits that it initially denied the plan for psychological services dated January 26, 2023, by way of letter dated March 1, 2023. This was within 10 business days after receiving the plan on February 21, 2023. The respondent requested that the applicant attend an IE with Dr. Daniel Cohen to determine his entitlement for psychological services.

45The respondent provided a copy of Dr. Cohen’s report dated July 20, 2023, and stated in their denial letter dated August 2, 2023, that all treatment, testing, progress report, documentation and communication with other providers is approved but only fifteen minutes, not thirty minutes of treatment planning per session is approved based on the IE report of Dr. Cohen.

46I find that the respondent provided proper notice on August 2, 2023, by identifying the documentation is still has not received, and arranging an IE. Given that the applicant made no submissions as to why the outstanding amount for planning services is reasonable and necessary, I find, on a balance of probabilities, that the applicant has not met his burden to establish entitlement to the outstanding amount of this plan.

Plan dated January 31, 2023 for physiotherapy services

47I find that the applicant is not entitled to the January 31, 2023 plan for physiotherapy services.

48The applicant submitted a plan dated January 31, 2023, for 30 exercise sessions; 10 sessions of massage therapy; an assessment, and documentation, in the amount of $2,545.00, proposed by Dr. Majid Arabkhari, chiropractor. The respondent denied the proposed plan based on an IE report by Dr. David Berbrayer, physiatrist.

49The applicant made no submissions regarding whether the plan for physiotherapy services is reasonable and necessary and, instead, relied solely on his argument that the respondent’s denial was non-compliant under s.38(8) of the Schedule such that the treatment plan is payable.

50The respondent wrote to the applicant by letter dated March 1, 2023, denying the benefits within 10 business days of receiving the plan on February 22, 2023. The respondent’s denial stated that it has not received the updated CNRs and documentation, and it requires an IE to determine whether further facility-based treatment is still required. In a further letter dated March 6, 2023, the respondent stated that the s. 33 requests remain outstanding. The respondent scheduled an IE with Dr. Berbrayer. In a subsequent letter dated August 2, 2023, the respondent enclosed a copy of the IE report of Dr. Berbrayer. The respondent stated that Dr. Berbrayer concluded the plan is not reasonable and necessary for the applicant’s accident-related injuries because further facility-based treatment after two years is not indicated, and it can be done in a home situation with self-directed home exercises.

51The applicant submits that the respondent’s denial was improper because it did not provide principled rationale for the denial, or for the applicant to submit to an IE. I find that the March 1, 2023 and August 2, 2023 denials were compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.

52Given that the respondent provided a compliant denial by identifying the information about the applicant’s condition that it still requires, and arranging an IE, I find that the applicant has not met his burden to establish entitlement to the outstanding amount of this plan.

Plan dated October 24, 2023 for the outstanding amount of $448.80

53I find that the applicant is not entitled to the unapproved portion of the October 24, 2023 plan.

54The applicant submitted a plan dated October 24, 2023, for physiotherapy services in the amount of $3,416.68, proposed by Scarborough Rehabilitation Clinic. The respondent partially approved the treatment plan in the amount of $2,967.88, which included all treatment, communication with providers, testing and documentation. The respondent denied the proposed six hours of planning services at a rate of $149.61 per hour and approved three hours of planning services at the proposed rate, for a difference of $448.80.

55The applicant made no submissions regarding whether the outstanding amount for planning services is reasonable and necessary and, instead, relied solely on his argument that the respondent’s denial was non-compliant under s.38(8) of the Schedule such that the remaining amount of the treatment plan is payable.

56The applicant submits that the denial notice for plan dated November 23, 2023, for the unapproved portion of the plan for planning services was based on arbitrary reasons in an IE report. The applicant further submits that the respondent previously approved the full amount for planning services in other plans. The applicant does not explain why thirty minutes of planning services per session is reasonable and necessary.

57The respondent partially denied the plan for psychological services dated October 24, 2023, by way of letter dated November 23, 2023, within 10 business days after receiving the plan on November 9, 2023. The respondent stated in their denial letter dated November 23, 2023, that all treatment, testing, progress report, documentation and communication with other providers is approved but only fifteen minutes, not thirty minutes of treatment planning per session is approved based on the IE report of Dr. Cohen.

58I find that the denial dated November 23, 2023, provides reasons specific to the applicant and indicated that the respondent relies on the opinion of Dr. Cohen in deciding that 15 minutes of provider services per session is sufficient. Accordingly, I find that the denial complies with s.38(8) of the Schedule.

59Since the respondent’s denial was compliant with the Schedule and the applicant made no submissions as to why the unapproved portion of the proposed planning services is reasonable and necessary, I find that the applicant has not met his burden to establish entitlement to the unapproved portion of this plan.

60I find that the applicant has not demonstrated on a balance of probabilities, that he is entitled to the unapproved portion of $448.80 of the October 24, 2023 plan.

Interest

61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no benefits owing, interest is not payable.

Award

62The applicant sought an award under s. 10 of Reg. 664 because the respondent’s NOE and denial of his IRB did not comply with the Schedule. However, the applicant makes no submissions, nor did he provide any evidence to explain how the respondent’s notices were non-compliant.

63Under 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 applicant has not met his onus to explain how the respondent unreasonably withheld or delayed the payment of benefits. Thus, an award under s.10 of Reg. 664 is not warranted.

ORDER

64For the reasons stated above, I find that:

i. The applicant is not entitled to an IRB in the amount of $202.67 per week from August 11, 2023 to date and ongoing;

ii. The applicant is not entitled to attendant care benefits;

iii. The applicant is not entitled to the treatment plans in dispute;

iv. Interest is not payable and the respondent is not liable to pay an award; and,

v. The application is dismissed.