Licence Appeal Tribunal File Number: 23-002132/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:
Pamela Mitchell
Applicant
and
Scottish and York Insurance Co.
Respondent
DECISION
ADJUDICATOR: Robert Rock
APPEARANCES:
For the Applicant: Maddison Watson, Counsel
For the Respondent: Melanie Sousa, Counsel
HEARD: By way of written submissions
OVERVIEW
1Pamela Mitchell, the applicant, was involved in an automobile accident on July 20, 2018, 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, Scottish and York Insurance Co., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
SUBSTANTIVE ISSUES
[2] The substantive issues in dispute are: i. Is the applicant entitled to $3,463.69 for occupational therapy, proposed by Beth Dyck in a treatment plan/OCF-18 submitted on February 7, 2021 and denied on March 18, 2021? 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 OCF-18 is not reasonable and necessary.
4Pursuant to s. 55(1) of the Schedule, the applicant is barred from proceeding to a hearing for all of the benefits claimed in this application.
5The application is dismissed.
ANALYSIS
6To receive payment for a treatment and assessment plan 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. To do so, 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 them are reasonable.
Occupational Therapy OCF-18
7I find that the applicant has not proven on a balance of probabilities that the occupational therapy treatment plan is reasonable and necessary.
8The goals of the treatment plan are engagement in meaningful activity through the provision of equipment and strategies, and a return to activities of normal living.
9The treatment plan included 5 sessions of training, motor and living skills along with preparation service and travel time. In addition, there is a variety of equipment including grab bars and installation, long handle reacher and scrub brush, stairclimbing cart, jar opener, and reimbursements for purchases.
10The applicant claims a s. 38(8) violation in the respondent’s denial, indicating that the explanation of benefits (EOB) was received outside the required 10 business days.
11Section 38(8) states, “Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and 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.”
[12] The respondent submits, that they did adhere to the 10 business days. The respondent claims that the OCF-18 was received on May 7, 2022, at 6:08 pm, making the date of receipt May 8. The timing of the receipt has not been addressed by the applicant in a reply submission to argue against a late delivery on March 7, 2022. The respondent refers to s. 64(24) of the Schedule in the calculation of days between two events which reads, i. “A reference in this Regulation to a number of days between two events shall be read as excluding the day on which the first event happens and including the day on which the second event happens.”
13On the basis of s. 64(24), May 22, 2022, delivery of the EOB and request for the s. 44 IE would be on the 10 business days.
14I find that the delivery of the EOB does conform with s. 38(8).
15The applicant also argues that the occupational therapy OCF-18 is reasonable and necessary. In their submission, they only use the OCF-18 itself to substantiate that it is reasonable and necessary, and do not direct me to any other medical evidence that would corroborate the reasonable and necessary nature of this OCF-18.
16If find that the applicant has not met her onus to prove on a balance of probabilities that the OCF-18 is reasonable and necessary.
Sections 44 and 55 of the Schedule
17I find the applicant did not attend a reasonably necessary insurer’s examination (“IE”) that was scheduled in compliance with the Schedule. This breach of s. 44(1) means that the applicant is barred from proceeding to a hearing for all of the benefits claimed in this application, pursuant to s. 55(1) of the Schedule.
18The respondent claims that the applicant should be barred from applying to the Licence Appeal Tribunal on the basis of s. 55(1).
19Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
20A proper notice under s. 44(5) must state the medical reason and any other reasons for the examination; whether the insured’s attendance is required at the IE; the name, title and designation of the person conducting the IE; and the date, time and location of the assessment. The insurer shall make reasonable efforts to schedule the IE for a day, time and location that are convenient for the insured.
21Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.
22Section 55(2) states that the Tribunal may permit an insured person to apply to it, despite paragraphs 2 and 3 of section 55(1).
23The respondent bears the onus of establishing that the applicant is statute-barred for failing to comply with s. 44(9)2 of the Schedule.
Non-attendance at s. 44 assessments
24The respondent submits that the applicant failed to attend a scheduled IE with an occupational therapist on April 4, 2022, and refused to attend a subsequent IE on May 10, 2022. The purpose of the IE was meant to assess both occupational therapy and attendant care. The respondent submits that the applicant has not attended any IEs, and the respondent argues that the applicant should be barred from proceeding to a hearing for failure to attend IEs.
25The applicant claims she is not refusing to attend IEs, but that the denial and request for the IE was outside 10 business days, making it noncompliant with the Schedule. The applicant’s claim is that the 10 business days are a strict timeline and noncompliance triggers a shall pay scenario.
26The issue of s. 38(8) was reviewed above and the respondent was compliant from a timing perspective on their EOB.
27Further, I find the applicant has not sufficiently directed me to reasons why the 10-business day argument, if it were to stand, would bar the applicant from having to attend the IE, nor pointed me to any reasoning as to what basis s. 42 avails the applicant from not attending a scheduled IE for a separate treatment plan.
28The applicant did not dispute that the IE assessments were reasonably necessary in order for the respondent to determine entitlement the proposed OCF-18. Nor did the applicant dispute that she failed to attend the scheduled IEs.
29I have not been directed by applicant to any explanation indicating reasons for the cancelations and non-attendance beyond their s. 42 argument in relation to 10 business days.
30The respondent has satisfied me that the applicant failed to attend a reasonably necessary IE. For this reason, the applicant is barred from proceeding to a hearing for issues in dispute in this application, pursuant to s. 55(1) of the Schedule.
ORDER
[31] I find that: i. The OCF-18 is not reasonable and necessary. ii. Pursuant to s. 55(1) of the Schedule, the applicant is barred from proceeding to a hearing for all of the benefits claimed in this application. iii. The application is dismissed.
Released: August 26, 2025
Robert Rock Adjudicator