Stephanie Neves v. CUMIS General Insurance Company, 2025 CanLII 94796

Citation: Neves v. CUMIS General Insurance Company, 2025 ONLAT 23-011932/AABS-A

Licence Appeal Tribunal File Number: 23-011932/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:

Stephanie Neves

Applicant

and

CUMIS General Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Justin Mariani, Paralegal

For the Respondent:

Hooman Zadegan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Stephanie Neves, the applicant, was involved in an automobile accident on July 9, 2022, 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, CUMIS General 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:

1. Is the applicant entitled to $1,361.36 for assistive devices, proposed by iScope Concussion and Pain Centers in a treatment plan/OCF-18 (“treatment plan”) submitted July 21, 2023?

2. Is the applicant entitled to the remaining $2,013.20 for occupational services, proposed by iScope Concussion and Pain Centers in a treatment plan submitted July 21, 2023?

3. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by RPM Inc. in a treatment plan submitted December 29, 2022?

4. Is the applicant entitled to $6,230.72 for chiropractic services, physiotherapy, massage therapy and acupuncture, proposed by Healthmax Etobicoke in a treatment plan submitted November 23, 2023?

5. Is the applicant entitled to $2,620.00 for neuro-ocular therapy, proposed by Healthmax Etobicoke in a treatment plan submitted December 15, 2023?

6. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $3,000.00 per month from June 15, 2023 to ongoing?

7. Is the applicant entitled to $200.00 for completion of an OCF-3, submitted by invoice (OCF-21) dated November 10, 2023?

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

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

3The applicant withdrew the issue with respect to non-earner benefits set out in the Case Conference Report and Order (“CCRO”).

RESULT

4I find that:

1. The applicant is not entitled to $1,361.36 for assistive devices in a treatment plan dated July 21, 2023.

2. The applicant is not entitled to $6,230.72 for chiropractic services, physiotherapy, massage therapy and acupuncture in a treatment plan dated November 23, 2023.

3. The applicant is not entitled to $2,620.00 for neuro-ocular therapy in a treatment plan dated December 15, 2023.

4. The applicant is not entitled to $2,200.00 for a chronic pain assessment in a treatment plan dated December 15, 2022.

5. The remaining $2,013.20 for occupational services in the treatment plan dated July 21, 2023 is payable under s. 38 (11).

6. The applicant is not entitled to attendant care benefits.

7. The applicant is not entitled to $200.00 for the completion of an OCF-3.

8. The applicant is not entitled to an award.

9. The applicant is entitled to interest on any outstanding payments in accordance with s. 51 of the Schedule.

PROCEDURAL ISSUES

Respondent’s request to exclude applicant’s evidence

5The respondent’s request to exclude the applicant’s evidence submitted since the Case Conference is denied.

6The respondent submits that the applicant failed to meet the timelines for disclosure set out in the CCRO, and submitted several required disclosures only with her submissions for this hearing and that admitting this evidence would be prejudicial to the respondent, because it did not have sufficient time to seek expert opinions or respond to requested documents.

7The respondent also submits that the applicant did not comply with the order to disclose the clinical notes and records (“CNRs”) of the Kingsbridge Medical Centre from one year prior to the accident; however, I find that the CCRO references only the Kingsbridge Medical Centre CNRs from October 1, 2023 to the date of the Case Conference. It does not include the date range advanced by the respondent.

8In her reply submissions, the applicant submits that all disclosures were made within the appropriate timelines and sent to the contact that they had on file from prior to the respondent’s current representative’s assignment to this application.

9Although the applicant did not submit copies of the email correspondence with the respondent, she provided dates and excerpts of the email communication. The email excerpts indicate that in addition to providing disclosure within the timelines, the applicant requested the name and contact information of the respondent’s counsel. I note that Tribunal records indicate that the applicant’s counsel was served with the respondent’s Declaration of Representation (DOR) on April 30, 2024, prior to the disclosures discussed in the email excerpts.

10However, there is no record in the Tribunal files of the respondent seeking a sur-reply or any other correspondence to rebut the applicant’s assertion that all disclosure was made within the timelines set out in the CCRO.

11Overall, I find on a balance of probabilities that the applicant complied with the disclosure deadlines, and I decline to strike any of the applicant’s evidence submitted for this hearing.

Applicant’s request to exclude Insurer’s Examination Reports (s.44. reports)

12The applicant’s request to exclude the respondent’s s.44 neurology, and occupational therapy reports is denied.

13The applicant submits that the February 26, 2024 s.44 neurology report of Dr. Michael Angel, neurologist, and the September 26, 2023 s.44 occupational therapy report of Famida Kanji, occupational therapist, should be excluded from the record, because the initial denial letters do not contain sufficient medical or other reasons for the denials.

14The respondent did not provide any submissions on the exclusion of the s.44 reports.

15The applicant relies on Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT), B.M v Unica Insurance Inc., 2020 CanLII 72512 (ON LAT), and Cabico v Allstate Canada, 2024 CanLII 94130 (ON LAT) which are Tribunal decisions, wherein s.44 reports were excluded from evidence based on noncompliant Notices of Examination (“NOEs”). I am not bound by Tribunal decisions and I find these decisions not to be helpful in my analysis, because in the present case, the applicant has not directed me to NOEs for the treatment plans in dispute.

16Further, I am not persuaded by the applicant’s argument that if the initial denials of the treatment plans were found to be noncompliant with s.38(8), the s.44 reports which addressed the treatment plans would be rendered inadmissible. The remedy for a non-compliant notice under s. 38(11), is that the applicant is entitled to costs for items described in the treatment plan incurred from the 11th day after the treatment plan was submitted until a compliant notice is issued by the respondent.

17The evidence reveals that the denial letters informed the applicant that she would be required to attend the s. 44 examinations, and that a Notice of Examination (“NOE”) would follow. However, the applicant has not directed me to any NOE or subsequent denial letter for any of the treatment plans.

18Because the applicant attended the s. 44 examinations, I find, on a balance of probabilities, that the respondent did issue NOEs for the s. 44 examinations in question. As the applicant has not made submissions with respect to or directed me to any subsequent denial notices, even if I agreed with the applicant that the initial denial letters for the treatment plans did not comply with s.38(8), I do not have sufficient evidence to determine the compliance of the NOEs or any other subsequent notice.

19For these reasons, I decline to strike the s.44 reports from the record.

ANALYSIS

20To 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.

21Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

22If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. 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).

Is the applicant entitled to $1,361.36 for assistive devices in a treatment plan submitted July 21, 2023?

23I find that the applicant is not entitled to the treatment plan dated July 21, 2023.

24The applicant has not made any submissions with respect to whether the treatment plan is reasonable and necessary, instead arguing that the treatment plan is payable under s. 38(11), because the denial letter dated August 3, 2023 does not contain sufficient medical reasons, rendering Ms. Kanji’s September 26, 2023 s.44 report inadmissible, and the treatment plan payable.

25I am not persuaded by the applicant’s argument that the treatment plan is payable based on the sufficiency of reasons in the August 3, 2023 denial notice. I found above that the respondent issued a NOE for the September 8, 2023 s.44 examination; however, the applicant did not make any submissions with respect to the sufficiency, or provide a copy, of the NOE or any subsequent denial notice. Further the applicant has not directed me to any evidence of any costs incurred under the treatment plan.

26Because the applicant has not provided sufficient evidence for me to determine whether or when a compliant notice was issued, or whether any costs were incurred, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is payable under s.38(11).

27Accordingly, the applicant is not entitled to $1,361.36 for assistive devices in the treatment plan dated July 21, 2023.

Is the applicant entitled to the remaining $2,013.20 for occupational services, in a treatment plan submitted July 21, 2023?

28I find that the treatment plan is payable under s. 38(11).

29The applicant submits that the respondent’s letter partially denying the treatment plan is not compliant with s. 38 (8) because it does not provide sufficient reasons the denial. The respondent made no submissions on whether the denial letter is compliant.

30I agree with the applicant that the respondent’s denial letter, dated August 3, 2023, did not provide sufficiently detailed reasons for the partial denial of the occupational services. The respondent approved 3 two-hour occupational therapy sessions, and denied the balance of 14 hours requested stating: “The requested time of 20 hours for 3 sessions appears to be excessive and therefore would not be reasonable and necessary,” which I find to be insufficiently detailed to satisfy the requirements under s.38(8), and s.38(11) is engaged.

31As the respondent has not made submissions or provided evidence that any subsequent notice was issued, I find that the remaining $2,013.20 for occupational services in the treatment plan submitted on July 21, 2023 is payable pursuant to s. 38(11).

Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by RPM Inc. in a treatment plan submitted December 29, 2022?

32I find that the applicant has not established on a balance of probabilities that he is entitled to the treatment plan.

33The applicant submits that the applicant is entitled to the treatment plan because the sole reason for the denial in the respondent’s January 24, 2023 denial letter is that the applicant’s injuries fall within the MIG, and the respondent did not reassess the treatment plan when the applicant was removed from the MIG. The respondent has not provided any submissions with respect to a reassessment of the treatment plan.

While the respondent may have a duty of good faith to reassess a treatment plan once the applicant is removed from the MIG, there is no requirement to do so in the Schedule.

As the applicant has not provided any submissions as to whether the treatment plan is reasonable and necessary, I find that the applicant has not met his onus to prove on a balance of probabilities that he is entitled to the treatment plan.

34Accordingly, the applicant is not entitled for $2,200.00 for a chronic pain assessment in a treatment plan dated December 29, 2022.

Is the applicant entitled to $6,230.72 for chiropractic services, physiotherapy, massage therapy and acupuncture, in a treatment plan submitted November 23, 2023?

35I find that the applicant has not established on a balance of probabilities that she the treatment plan submitted on November 23, 2023 is reasonable and necessary.

36The treatment plan, dated November 1, 2023, was prepared by Dr. Arash Saleki, chiropractor of HealthMax-Etobicoke and submitted on November 23, 2023. The goals of the treatment plan are: pain reduction increased strength, increased range of motion, functional restoration, and a return to activities of daily living and pre-accident work activities.

37The plan seeks at total of $6,230.72, which includes chiropractic, physiotherapy, massage therapy, and acupuncture treatments, $100 for an assessment, and $200 in documentation/services fees.

38The applicant submits that the applicant is entitled to the treatment plan because the s.44 physiatry report of Dr. Zabieliauskas is inconsistent with the applicant’s medical brief, and that his opinion was speculative.

39The respondent argues that it had approved an OCF 18 for vestibular therapy, a TENS machine and massage gun on November 1, 2023, and approved an OCF-18 for $2,701.00 for chiropractic and physiotherapy of on November 3, 2023, and that the applicant had not established that the additional $6,230.72 for various forms of physical therapy including chiropractic and physiotherapy in a treatment plan submitted three weeks later, was reasonable and necessary.

40I agree with the respondent. The applicant has not directed me to any medical evidence to support the treatment plan, nor has the applicant described the results that she had achieved from with her previous treatments, or how the goals of the treatment plan would be met. Further the applicant did not explain how the costs of the treatment plan, which were significantly higher than her previous plan, are reasonable.

41For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary. As such, it is not necessary for me to consider Dr. Zabieliauskas’ s.44 report.

42The applicant is not entitled to $6,230.72 for chiropractic services, physiotherapy, massage therapy and acupuncture services in the treatment plan submitted November 23, 2023.

Is the applicant entitled to $2,620.00 for neuro-ocular therapy, proposed by Healthmax Etobicoke in a treatment plan submitted December 15, 2023?

43I find that the applicant has not established on a balance of probabilities that she is entitled to the treatment plan.

44The applicant submits that she is entitled to the treatment plan and that the s.44 report of Dr. Angel is inconsistent with the applicant’s medical evidence.

45The respondent argues that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary and relies on the s.44 report of Dr. Angel.

46The goals of the treatment plan, prepared by Dr. Mandir Randhawa, optometrist, of iScope Concussion and Pain Centers are: Vision Rehabilitation to reduce post-traumatic visual symptoms and restore ocular motor activities, and to restore function on visually demanding tasks such as computer use to pre-trauma levels, The treatment pan requests $2,220 for vision therapy, $200.00 for a progress report, and $200.00 for the completion of the OCF-18.

47I find that the evidence does not support a finding that the treatment plan is reasonable and necessary. The applicant directs me to the December 8, 2023 Ocular Vision Assessment report of Dr. Randhawa, who diagnosed the applicant with Post Trauma Vision Syndrome: Binocular Dysfunction, and recommended weekly vision therapy. The applicant further directs me to the March 20, 2024 neuro-ophthalmological consultation report of Dr. Behzad Mansouri, neurologist and neuro-psychologist, which I find is inconsistent with Dr. Randhawa’s recommendations.

48Dr. Mansouri conducted a neuro-ophthalmological examination and diagnosed the applicant with Dysfunctional Tear (Dry Eye) Syndrome, and “Occipital neuralgia, Concussion and Post-concussion syndrome that has caused

convergence insufficiency, vestibulopathy and migraine headaches.” He recommended home treatment for her eyes and headaches including using a humidifier, vitamin and Omega 3 supplementation, improving posture, tear drops, warm eye compress, and blinking exercises. While Dr. Mansouri did recommend that the applicant continue with vestibular physiotherapy, he did not recommend the facility-based neuro-ocular therapy outlined in Dr. Randhawa’s report or treatment plan.

49Further, the applicant has not made any submissions with respect to how the goals of the treatment plan will be met, or that the costs of the treatment plan are reasonable.

50For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary. As such, it is not necessary for me to consider Dr. Angel’s s.44 report.

51The applicant is not entitled to $2,620.00 for neuro-ocular therapy in the treatment plan dated December 15, 2023.

Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from June 15, 2023 to ongoing?

52I find that the applicant has not established on a balance of probabilities that she is entitled to attendant care benefits.

53The applicant has not made any submissions or directed me to any evidence to explain why ACBs are reasonable and necessary. Instead, the applicant argues that the ACBs are payable because respondent’s August 3, 2023 denial letter did not provide sufficient medical reasons. The respondent has not made any submissions with respect to the compliance of the denial notice.

54However, even if I were to agree with the applicant that the medical reasons did not comply with s.42(13)(b) of the Schedule, which requires the respondent to provide the medical and other reasons for its denial of ACBs, the applicant has not directed me to any statutory authority or case law in support of her argument that ACBs are payable if a denial is not compliant with s.42.

55Unlike s, 38(11), there is no provision in s.42 which requires an insurer to pay ACBs until a proper denial is made. The applicant’s request to deem ACBs payable for a breach of s. 42(13)(b) would read into the Schedule a remedy that is not provided.

56As such, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to ACBs.

Is the applicant entitled to $200.00 for completion of an OCF-3, submitted by invoice (OCF-21) dated November 10, 2023?

57I find that the applicant has not established on a balance of probabilities that she is entitled to payment of an invoice for the completion of an OCF-3 dated November 10, 2023.

58The applicant submits that she is entitled to payment for the OCF-3, because she obtained it in support of her claim for a non-earner benefit which was subsequently withdrawn. The respondent contends that as it did not ask for the OCF-3 to be submitted, it is not required to pay for it.

59I find that the applicant is not entitled to payment for the OCF-3, because it was not requested by the respondent under s. 37(1) of the Schedule.

Interest

60I find that the applicant is entitled to interest on any overdue payments in accordance with s. 51 of the Schedule.

Award

61The 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.

62The applicant did not submit particulars or make submissions with respect to an award. Therefore, I find, the applicant has not proved, on a balance of probabilities that any payment has been unreasonably withheld or delayed. Accordingly, the applicant is not entitled to an award.

ORDER

63I find that:

1. The applicant is not entitled to $1,361.36 for assistive devices in a treatment plan dated July 21, 2023.

2. The applicant is not entitled to $6,230.72 for chiropractic services, physiotherapy, massage therapy and acupuncture in a treatment plan dated November 23, 2023.

3. The applicant is not entitled to $2,620.00 for neuro-ocular therapy in a treatment plan dated December 15, 2023.

4. The applicant is not entitled to $2,200.00 for a chronic pain assessment in a treatment plan dated December 15, 2022.

5. The applicant is entitled to $2,013.20 for occupational services in the treatment plan dated July 21, 2023.

6. The applicant is not entitled to attendant care benefits.

7. The applicant is not entitled to $200.00 for the completion of an OCF-3

8. The applicant is not entitled to an award.

9. The applicant is entitled to interest on any outstanding payments in accordance with s. 51 of the Schedule.