Licence Appeal Tribunal File Number: 23-015311/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:
Michael Kireev
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Sherilyn Pickering, Counsel
For the Respondent:
Stacey Karellas, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Michael Kireev, the applicant, was involved in an automobile accident on September 25, 2020, 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, Certas Home and Auto 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 $5,499.20 for psychological services proposed by the Toronto Concussion Clinic (“TCC”) in a treatment plan/OCF-18 (“plan”) submitted on January 5, 2022?
ii. Is the applicant entitled to $548.66 for occupational therapy (“OT”) services proposed by Rehab First Inc. in a plan submitted on March 10, 2022?
iii. Is the applicant entitled to $1,064.00 for medical services proposed by TCC in a plan submitted on June 22, 2022?
iv. Is the applicant entitled to $2,000.00 for medical services proposed by TCC in a plan submitted on June 13, 2022?
v. Is the applicant entitled to $15.24 for Swiffer refills ($1,015.24 less $1,000.00 approved for acupuncture services) submitted via OCF-6s from May 10, 2022, to August 2022, and partially denied on September 16, 2022?
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?
3In his submissions, the applicant withdrew issues 1 to 8, 10 to 19, 21, 24, and 26 to 30 as set out in the Case Conference Report and Order dated July 23, 2024.
RESULT
4The applicant is entitled to the plan in the amount of $2,000.00 for medical services that was submitted on June 13, 2022.
5The applicant is entitled to the OCF-6 for Swiffer refills.
6The applicant is not entitled to the remaining plans in dispute.
7The applicant is entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
8The respondent is not liable to pay an award.
ANALYSIS
Respondent’s general position with respect to all issues in dispute
9The respondent requests that the Tribunal dismiss this application for the following reasons. It submits that as of February 23, 2021, the applicant’s injuries have been categorized as “Non-Minor / Non-Catastrophic” and are subject to the $65,000.00 monetary limit set out at s. 18(3)(a) of the Schedule. The respondent further submits that as of September 13, 2024, it has paid benefits to the applicant in the amount of $62,285.15, and that only $2,714.86 is remaining within the $65,000.00 limit. The respondent argues that, although the applicant has not yet incurred the $2,714.86, it has already approved over the $65,000.00 limit and therefore funds are not available.
10The respondent refers to other decisions of the Tribunal to support its argument that the Tribunal cannot find the disputed plans reasonable and necessary as they are not payable for the following reasons:
i. This application is premature because the applicant must be deemed to be catastrophically impaired for the plans to be reasonable and necessary and payable.
ii. Where limits are exhausted, this is a complete defence to an insurer.
11I am not bound by other decisions of the Tribunal. Although I agree that where limits are exhausted, the insurer is not required to pay over the limit, I find that this is not at issue here. Rather, at issue is whether the applicant is entitled to the treatment plans because they are reasonable and necessary, and not whether they are payable. I respectfully disagree with other decisions of the Tribunal that find that this type of application would be premature.
12I find there is nothing in the Schedule that prevents the applicant from disputing a treatment plan even if the funding limits have been exhausted. The Tribunal’s jurisdiction to determine disputes over entitlement stems from s. 280 of the Insurance Act. Section 280 provides that an insured person or the insurer may apply to the Tribunal to resolve a dispute in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. In this case, the applicant has made an application about their entitlement to certain benefits. Accordingly, I will decide the issue of entitlement on the disputed treatment plans.
13To 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.
The applicant is not entitled to the remainder of the plan for psychological services
14The applicant has not demonstrated on a balance of probabilities that the remainder of the plan for psychological services is reasonable and necessary.
15The plan was proposed by Dr. Taher Chugh, physician. The plan proposes a three-month membership for mental health, psychological, and behavioural therapy support in a group dynamic, eight sessions of counseling (mental health and addictions), and four sessions of counseling (promoting health and preventing disease). The goals of the plan are pain reduction, increased range of motion, increase in strength, to improve organization and instill goal management techniques, to return to activities of normal living, to return to pre-accident work activities, to return to modified work activities, and to increase productivity in the face of cognitive impairment.
16The respondent partially approved the plan, denying $2,700.00 for group counselling (a $900.00 monthly membership for a period of three months). As set out in the plan, the group therapy sessions would include mindfulness, headache treatment strategies, CBT, CBT for insomnia, exercise counselling, executive functioning designed to improve cognition and behaviour, resilience training, positive psychology, relaxation training, meditation classes, functional cognitive rehabilitation, goal-oriented therapy, assertiveness, PTSD treatment, body scans, workbooks, worksheets, and access to google sheets documents.
17In various clinical notes and records (“CNRs”), the applicant refers to the following medical evidence of accident-related injuries where the symptoms are addressed in this plan, including headaches, dizziness, balance impairment, sensitivity to light, blurry vision, photophobia, fatigue, sleep impairments, difficulty concentrating, memory and attention impairment, and executive dysfunction. The applicant has been diagnosed with the following accident-related impairments:
i. On October 29, 2020, Dr. Taher Chugh, physician: post-concussion syndrome, cervicogenic pain, post-traumatic headache, sleep disorder, fatigue, and adjustment disorder.
ii. On March 29, 2022, Dr. Emily Gavett-Liu, psychiatrist: somatic symptom disorder and generalized anxiety disorder, and presents with symptoms of neurocognitive disorder NOS and persistent post-concussive symptoms.
iii. On October 17, 2022, Allan Walton, psychotherapist and Dr. Philip Miller, psychologist: adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder, persistent, predominant pain.
iv. July 30, 2023, Dr. Irina Valentin, neuropsychologist: somatic symptom disorder, generalized anxiety disorder, neurocognitive disorder.
v. On August 20, 2023, Dr. Mark Friedlander, specialist in anesthesiology with a special interest in chronic pain: chronic post-traumatic headache with post-concussion syndrome, sleep disorder associated with chronic pain, and chronic pain syndrome.
vi. On October 11, 2023, Dr. Vincenzo Santo Basile, neurologist: post concussive syndrome consistent with a traumatic brain injury, features of post-traumatic headaches, and chronic pain syndrome.
18The applicant’s affidavit sworn on May 1, 2024 was put into evidence. In the affidavit, he indicates that he participated in group sessions to help treat insomnia and was provided with tools to help him, such as being advised to avoid screens, avoid coffee, to do meditation and take melatonin.
19The applicant pointed to evidence of his accident-related impairments and directed me to the goals of the treatment plan which included a description of what the group counselling would entail. However, I find that the applicant did not provide evidence or make submissions with respect to how the goals of the plan would be met to a reasonable degree and how the overall costs of achieving them are reasonable.
20For these reasons, I find that the applicant has not met his onus to establish on a balance of probabilities that the group counselling portion of the proposed plan is reasonable and necessary.
The applicant is not entitled to the remainder of the plan for OT services
21The applicant has not demonstrated that the remainder of the plan for OT services is reasonable and necessary.
22The plan was proposed by Patricia Saad, occupational therapist. The plan proposes case note documentation (6 half hour sessions at $49.88 per session), preparation and planning (6 half hour sessions at $49.88 per session), six OT treatment sessions ($149.63 for each 1.5 hour session), progress report, including review of documentation and reports (four hours for a total of $399.00), travel time, time for consult and correspondence with client (one hour, for a total of $99.75), non-slip lightweight winter boots, Crocs for aquatherapy, completion, review and certification of OCF-18, and collaboration of clinical practices and activities (1.5 hours for a total of $149.63).
23The goals of the plan are pain reduction, to continue to address occupational performance issues to increase independence, safety, and enhance participation in pre-accident daily activities, to return to activities of normal living, to return to pre-accident work activities, to return to modified work activities, and to facilitate safe functional participation in pre-accident activities of daily living.
24The plan for OT services in the amount of $3,570.19 was approved by the respondent except for $548.66 for case note documentation, consultation and correspondence with the client, and collaboration of clinical practices and activities.
25The applicant submits that the respondent mistakenly believes that the denied items can be captured within the preparation and planning, and progress report times. The applicant argues that none of the denied items would overlap with progress report times, given their very distinct nature. The applicant takes the position that the consultation and correspondence with the client and collaboration of practices and activities with other providers might be a form of preparation and planning, but if they were folded into that category, the amount of time for preparation and planning would have increased to accommodate both.
26The applicant further submits that:
i. The planning time was already being used for planning for each session, reviewing prior notes, preparing goals, researching and ordering the recommended devices.
ii. Charting and communications with the client were all separate and distinct times spent.
iii. Communications with the client included scheduling, providing the link for the virtual session, and discussions of assistive devices.
27The applicant refers to the CNRs of Patricia Saad dated January 25, 2022 to September 13, 2022 in support of his submissions.
28The applicant argues that the entire plan, including the denied portions, are reasonable and necessary. He refers to reports by Nadia El Jerbi, occupational therapist, dated April 8, 2021, Marla Tennen, nurse, dated June 20, 2023, and Dr. Irina Valentin, neurologist, dated July 30, 2023, recommending OT services.
29The respondent refers to its Explanation of Benefits dated March 22, 2022, advising the applicant that the denied costs are excessive and not reasonable or necessary. The respondent submits that the time allocated to case note documentation is excessive because case notes can be taken in real time during each 1.5-hour long session, and that thirty minutes to document a session is unreasonable. The respondent further argues that notes form progress reports, which are already approved. The respondent points out that no rationale has been provided as to how it takes thirty minutes to document each session, especially considering that sessions take place online.
30The respondent also submits that the time for consult and correspondence with the client forms part of the planning fees, and any time spent scheduling, sending links for sessions and exchanging documents are overhead expenses and/or can take place within the 1.5-hour sessions. The respondent further submits that “collaboration of clinical practices and activities” for 1.5 hours is not explained and appears to be a form of case management, which is not covered unless the applicant is deemed catastrophically impaired. The respondent also argues that if this is a form of planning, it is already covered.
31In reply, the applicant submits:
i. Case notes cannot be done in real time because the focus of each session should be on treating him and that making notes would take the attention off the applicant and his injuries, impairments, and limitations.
ii. Case notes are not the same as progress reports, which draw from all notes and the expertise of the treatment provider, to outline the applicant’s treatment, progress, and current impairments, and to recommend any additional treatment or care.
iii. Time consulting and correspondence with the applicant is not overhead or planning, nor does it take place during the 1.5-hour sessions. If time spent sourcing the recommended devices was part of planning, it would increase the time spent planning. Sending the Zoom link is not part of the session, and if it were, it would increase the time spent during each session as the provider has to obtain the link, email it to the applicant, taking a minute or two to arrive, and the applicant would have to log on, instead of being on the Zoom, ready and waiting for his session.
iv. There is no explanation for why the therapist’s time spent sourcing items, sending Zoom links, scheduling appointments, and sending documents should be considered overhead, when it is time spent by a professional for the applicant’s care.
v. Collaboration of practices and activities are not case management, or part of planning. Speaking with other clinicians to ensure the care is complementary and not duplicative or contradictory is not case management. It is best practices to ensure that the patient is getting the best possible care. If this service was considered planning, the time spent for planning would have to increase to accommodate that time.
32I have reviewed Ms. Saad’s CNRs. There are six entries between January 25, 2022 and September 13, 2022 as follows:
i. January 25, 2022 at 4:11 p.m. – reviewed a report, prepared an OCF-6 and an accompanying letter, and sent the OCF-6 for signatures.
ii. January 25, 2022 at 4:31 p.m. – received the signed OCF-6 and submitted to RA to send to insurer and law firm.
iii. February 25, 2022 – reviewed OCF-18 for additional OT treatment and sent to CPL for review.
iv. March 8, 2022 – edited OCF-18 to add winter boots.
v. September 13, 2022 at 9:20 a.m. – planning for today’s OT session: prepared link for virtual session, sent to client, reviewed notes and prepared goals for OT session.
vi. September 13, 2022 at 10:10 a.m. – “Treatment by Video Conference.” This entry comprised of twenty sentences describing the OT session.
33I note that there is only one entry detailing notes from an OT session, and that the notes were made 50 minutes from the time the planning notes were taken. The respondent has approved six 1.5-hour OT sessions. The applicant has made various submissions to support his argument that the case note documentation, consultation and correspondence with the client, and collaboration of clinical practices and activities portions of the proposed plan, are reasonable and necessary. However, submissions are not evidence. The only evidence that the applicant relies on in support of his position are the CNRs of Ms. Saad.
34I find that the CNRs that were put into evidence do not provide any insight with respect to why the time approved by the respondent for the OT sessions, progress reports, as well as preparation and planning is not sufficient to cover the denied items. The applicant does not direct me to evidence to justify that six, half-hour sessions of case note documentation, one hour of time for consult and correspondence with the applicant, and 1.5 hours for collaboration of clinical practices and activities are reasonable and necessary.
35Based on the evidence before me, I am not satisfied that the applicant has demonstrated on a balance of probabilities how the goals of the proposed plan would be met to a reasonable degree with respect to the remainder of the plan and how the overall costs of achieving them are reasonable.
36For the above reasons, I find that applicant has not established that the remainder of the plan for OT services is reasonable and necessary.
The applicant is not entitled to the plan for medical services in the amount of $1,064.00
37The applicant has not demonstrated on a balance of probabilities that the plan for medical services in the amount of $1,064.00 is reasonable and necessary.
38The plan was proposed by Dr. Chugh. The plan proposes two sessions of training, sight and other senses NEC. The goals of the plan are pain reduction, increased range of motion, increase in strength, to identify the domains of musculoskeletal pain, dizziness, imbalance and athletics that are dysfunctional and require rehabilitation, to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities.
39The applicant submits that the proposed plan is for treatment with a specialized doctor and nurse interdisciplinary team to address the variable clinical presentations associated with mild traumatic brain injuries (“TBIs”), including utilization of biofeedback-based interventions, optokinetic simulation, solution-focused brief therapy, counseling, and more.
40The applicant relies on the Insurer’s Examination report of Dr. Velan Sivasubramanian dated March 8, 2022, where Dr. Sivasubramanian found that the applicant required treatment for his post-concussive symptoms, and he required mindfulness. The applicant submits that there is objective evidence that he suffers from a TBI, including an MRI that was obtained on November 20, 2021, and there is evidence of symptoms consistent with a TBI, including not remembering the impact. Symptoms related to a concussion are also set out at paragraph 17, above.
41Although the applicant refers to medical documentation and reports that refer to accident-related injuries that might be addressed by the proposed plan, he does not direct me to evidence with respect to how the goals of the proposed plan would be met to a reasonable degree and how the overall costs of achieving them are reasonable.
42For these reasons, I find that the applicant has not established on a balance of probabilities that the plan for medical services in the amount of $1,064.00 is reasonable and necessary.
The applicant is entitled to medical services in the amount of $2,000.00
43The applicant has demonstrated on a balance of probabilities that the plan for medical services in the amount of $2,000.00 is reasonable and necessary.
44The plan was proposed by Dr. Chugh. The plan proposes completion of the OCF-18, a total body assessment, training, sight and other senses NEC, and biofeedback equipment expenses. The plan is for a stress assessment and biofeedback therapy. The goals of the plan are to improve cognitive processes, decrease headaches, improve energy, reduce neck pain, improve balance, improve gait, improve mental health, to return to activities of normal living, to return to modified work activities, and to return to pre-accident work activities.
45The plan proposed was in the amount of $3,398.00, of which $2,000.00 for a stress assessment was denied by the respondent.
46The applicant refers to the Tribunal decision of 16-001934 v. Aviva Insurance Company of Canada, 2017 CanLII 59514 (ON LAT) in submitting that for an assessment to be reasonable and necessary, the test is whether there is a reasonable possibility that the applicant has the impairment that the assessment seeks to investigate and if so, is it reasonable and necessary to explore that possibility. Although I am not bound by other decisions of the Tribunal, I agree with the reasoning in that case. The applicant bears the onus of proof on a balance of probabilities.
47The respondent submits that the stress assessment was denied because the applicant did not provide details about the assessment and how or why it would be reasonable and necessary. The respondent further submits that the applicant has already engaged in various physical, mental and concussion treatments.
48In reply, the applicant submits that the proposed plan is for a biofeedback stress assessment. He refers to the Post-Concussion Syndrome: Stress-Related EMG Tension Assessment dated May 6, 2022 conducted by Gabriella Boccone, occupational therapist, and Dr. Chugh, which was used to assess muscle tension abnormalities from mundane challenges to train the applicant to be able to interrupt the cycle of stress-myofascial tension-pain-stress with mindfulness, intermittent body scans, and therapeutic strategies. The report indicates that biofeedback modalities are often used as a coping technique for chronic headache, chronic musculoskeletal pain and chronic stress. The applicant points out that he had myofascial tension and stress and that Dr. Sivasubramanian recommended mindfulness in his report dated March 8, 2022. The applicant submits that it is reasonable to investigate it and explore the potential for training to interrupt the cycle of stress-myofascial tension-pain-stress.
49Given the considerable evidence provided by the applicant with respect to his accident-related impairments including a concussion, headaches, chronic pain, dizziness, sensitivity to light, fatigue, blurred vision, nausea, balance problems, and difficulty concentrating, I find that it is a reasonable possibility that the applicant suffers from stress and myofascial tension and that an assessment is reasonable and necessary to explore that possibility.
50For these reasons, I find that the applicant has established on a balance of probabilities that the plan for medical services in the amount of $2,000.00 is reasonable and necessary. However, the applicant is only entitled to payment of same to the extent that there are funds remaining within the non-catastrophic limits and with proof that it is incurred, unless and until a catastrophic impairment (“CAT”) determination has been made.
The applicant is entitled to $15.24 for Swiffer refills
51The applicant has demonstrated on a balance of probabilities that the Swiffer refills are reasonable and necessary.
52The applicant bears the onus of establishing on a balance of probabilities that the goods and services claimed on an OCF-6 are reasonable and necessary.
53The OCF-6 that included Swiffer refills indicates “Wipes for Swiffer.” A receipt from Costco was submitted with the OCF-6 in the amount of $15.24. “Clorox Wet” is indicated on the receipt.
54The applicant submits that prior to the accident, he was independent in mopping, but now he struggles with bending and repetitive arm usage (i.e., reaching, pushing, and pulling), both of which cause difficulties with cleaning the floor. The applicant refers to the following evidence in support of his limited ability to engage in housekeeping duties because of his accident-related injuries:
i. OT Assessment Report of Nadia El Jerbi, occupational therapist, dated April 8, 2021.
ii. Report of Dr. Chugh dated December 5, 2021.
iii. Report of Dr. Friedlander dated August 20, 2023.
iv. Report of Dr. Basile dated October 11, 2023.
55The applicant further submits that a lightweight mop and refills is reasonable to increase independence in housekeeping.
56The respondent submits that although the OCF-6 lists “Wipes for Swiffer,” the Costco receipt confirms that Swiffer wipes were not purchased, rather, Clorox wet wipes were purchased. The respondent points out that in its denial letter dated September 16, 2022, it requested confirmation from the applicant’s family doctor that wipes were required because of the accident, and that no confirmation has been provided. The respondent submits that a Swiffer or lightweight mop were not proposed in the April 8, 2021 s. 25 In-Home Assessment Report. It further submits that requiring an insurer to pay for ordinary cleaning supplies is unreasonable and they ought not to be found payable, especially without evidence that they are needed because of the accident.
57In reply, the applicant submits that there is extensive evidence of his difficulties bending. The applicant further refers to s. 38(2)(c)(ii) of the Schedule, submitting that assistive devices under $250.00 do not need to be submitted on an OCF-18 and thus do not need to be recommended by a treatment provider.
58Given the considerable amount of evidence that the applicant has difficulty bending and performing housekeeping tasks because of his accident-related injuries and the minimal cost of the refills, I find they are reasonable and necessary. Further, since the Costco receipt is attached to the OCF-6 which lists “Wipes for Swiffer,” I find that the item listed on the Costco receipt, “Clorox Wet,” is more likely than not Clorox brand refills for a wet mop, and not “wet wipes.”
59For these reasons, I find that the applicant has established on a balance of probabilities that the Swiffer refills are reasonable and necessary. However, the applicant is only entitled to payment of same to the extent that there are funds remaining within the non-catastrophic limits, unless and until a CAT determination has been made.
Interest
60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits.
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 submits that an award is appropriate because the respondent unreasonably withheld reasonable and necessary medical rehabilitation benefits, including assessments to investigate his impairments and treatments that had reasonable goals and were making reasonable progress.
63It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The applicant does not direct me to any such conduct on the part of the respondent in this case. For these reasons, I find that there is no basis for ordering an award.
ORDER
64For the above reasons, I find:
i. The applicant is entitled to the plan in the amount of $2,000.00 for medical services that was submitted on June 13, 2022.
ii. The applicant is entitled to the OCF-6 for Swiffer refills.
iii. The applicant is not entitled to the remaining plans in dispute.
iv. The applicant is entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.
v. The respondent is not liable to pay an award.
Released: September 25, 2025
Laura Goulet
Adjudicator