Avendano v. TD General Insurance Company, 2026 CanLII 12723

Citation: Avendano v. TD General Insurance Company, 2026 CanLII 12723

Licence Appeal Tribunal File Number: 24-007236/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:

Nelly Avendano

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Stefan Juzkiw, Counsel

For the Respondent:

Benjamin Hutchinson, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Nelly Avendano, the applicant, was involved in an automobile accident on April 17, 2017, 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, TD 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:

i. Is the applicant entitled to $7,999.00 for hyperbaric oxygen treatment, proposed in a treatment plan, dated March 24, 2022?

ii. Is the applicant entitled to $15,121.00 ($25,920.00 less $10,799.00 approved) for a catastrophic (“CAT”) impairment, proposed by Biomex Impairment and Diagnostic Centre Inc., in a treatment plan dated May 6, 2022?

iii. Is the applicant entitled to $13,255.00 ($15,455.00 less $2,200.00 approved) for a CAT impairment assessment, proposed by Biomex Impairment and Diagnostic Centre Inc., in a treatment plan dated May 11, 2022?

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

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

3Two separate treatment plans for CAT assessments, proposed by Biomex Impairment and Diagnostic Centre Inc. were submitted on behalf of the applicant. The issues in dispute in the Case Conference Report and Order lists the date of the first treatment plan as June 7, 2022 and the second as June 11, 2022. Upon review of the actual treatment plans that were provided by the respondent, the first treatment plan is dated May 6, 2022, but submitted on June 7, 2022, recommending $25,920.00 in assessments, and the second is dated May 11, 2022, but submitted on June 6, 2022, recommending $15,455.00 in assessments. I have therefore amended the dates in the issues in dispute accordingly.

RESULT

4I find that the applicant is not entitled to the treatment plans in dispute, interest or an award.

ANALYSIS

Entitlement to Medical and Rehabilitation Benefits

5To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. In the context of an assessment, while the applicant does not need to prove the condition exists, he must prove with persuasive evidence that there is some accident-related condition that warrants investigation via the proposed assessment.

Entitlement to the treatment plan for Hyperbaric Oxygen Therapy

6I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for hyperbaric oxygen therapy.

7The applicant claims entitlement to $7,990.00 for hyperbaric oxygen therapy proposed by Mary Rasmi-Wakileh, chiropractor, of Newmarket Health & Wellness Center Inc., in the treatment plan dated March 24, 2022. The goals of the treatment plan are listed as pain reduction, increase in strength, increase range of motion, increase flexibility, return to activities of normal living, return to modified work activities, return to pre-accident work activities, and return to pre-accident status and function.

8The applicant submits that the treatment is reasonable and necessary as hyperbaric oxygen therapy serves as a promising neuroprotective strategy, which when combined with other therapeutic targets for traumatic brain injured patients is said to improve long-term outcomes. She submits that the treatment is required to return to her pre-accident standard of life.

9The respondent submits that this treatment plan is not reasonable and necessary and relies on the Physiatry Insurer’s Examination (“IE”) report prepared by Dr. Yong-Kyong Michael Ko, dated June 23, 2022 and his Addendum report dated October 4, 2023. The respondent further submits that the underlying productions are contraindicative of a head injury or mild traumatic brain injury and the Neurology IE report of Dr. Garry Moddel, dated July 16, 2019, confirmed that the applicant had sustained no neurological impairments.

10The respondent relies upon the Tribunal decision in Kravic v. Aviva Insurance Company, 2023 CanLII 30789 (ON LAT) (“Kravic”), where the adjudicator found that there was no medical evidence adduced in support of the effectiveness of hyperbaric oxygen therapy in treating the applicant’s accident-related injuries. The adjudicator further found that no medical evidence had been provided by the applicant to establish that hyperbaric oxygen therapy treatment speeds up recovery from a fracture or a brain injury. It further relies upon the Tribunal decision in Mamresuli v. Aviva Insurance Company, 2023 CanLII 122933 (ON LAT) (“Mamresuli”), where the adjudicator found that hyperbaric oxygen therapy was experimental in nature and hence not payable to pursuant to s. 15(2) of the Schedule.

11In reply, the applicant submits that Kravic is distinguishable because the applicant in that matter admitted that her mobility could have improved even without the therapy. The applicant further submits that the treatment plan itself cites an abundance of medically relevant literature establishing that the therapy is not merely experimental and is actually necessary. She argues that the treatment is further mandated as she exhibited signs of cognitive issues and Dr. David Hubbard’s Neurological report dated April 26, 2022 noted her ”abnormal functional connectivity, objective evidence of brain dysfunction, consistent with a traumatic brain injury”.

12Upon review of the treatment plan in dispute, the hyperbaric oxygen treatment was recommended based on Dr. Michael Gofeld’s assessment on March 4, 2022. Dr. Gofeld concluded that hyperbaric oxygen therapy is recommended, “based on the diagnosis of post-concussion syndrome and widespread chronic pain with central sensitization”. I find that a copy of Dr. Gofeld’s report was not provided for my review. I find that the applicant has not pointed the Tribunal to any other medical opinion that supports the recommendation for this therapy.

13With respect to the reasonableness of the treatment plan and the goals set out, I find that the applicant argues that the treatment is required to return to her pre-accident standard of life. At part 9 of the treatment plan the goals are pain reduction, increased range of motion, strength and flexibility and return to her pre-accident status and function. I find that there is no mention of treating a brain injury or the cognitive impairments claimed by the applicant. I further find that the applicant’s submissions do not address if or how the part 9 goals can reasonably be met by hyperbaric oxygen therapy. I therefore do not see that the goals listed align with the intended purpose of the treatment.

14I further find that while the applicant submits that the treatment plan references multiple studies where hyperbaric oxygen treatment has been discussed, she has not provided any submissions with respect to their findings. I further find that the applicant’s reference to a report from 2021 in her reply submissions simply states that hyperbaric oxygen therapy is useful and no further particulars were provided from the report as evidence as to how the findings connect to her own injuries in the accident.

15While I am not bound by previous decisions, I find the conclusion reached in Kavic persuasive, that “without any medical evidence in support of the effectiveness of hyperbaric oxygen therapy in treating the applicant’s accident-related injuries, I find that this treatment would be considered experimental in nature pursuant to s. 15(2)(a) of the Schedule.” I therefore find that without any medical evidence in support of the effectiveness of hyperbaric oxygen therapy in treating the applicant’s accident-related injuries, I find that this treatment would be considered experimental in nature pursuant to s. 15(2)(a) of the Schedule.

16For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that the treatment plan for hyperbaric oxygen treatment is reasonable and necessary.

Compliance with s. 38(8) of the Schedule

17The applicant submits that the respondent did not comply with s. 38(8) and s. 44(5)(a) of the Schedule in its notice denying the treatment plan for hyperbaric oxygen therapy, dated March 24, 2022.

18Section 38(8) of the Schedule sets out that within 10 business days after receipt of the treatment plan, insurers are required to provide an insured with a notice identifying the goods and services described in the treatment plan that it agrees to pay for and the medical and all other reasons why it considers the goods and services not to be reasonable and necessary. A consequence of an insurer’s failure to comply with s. 38(8) is that the benefits are payable as set out in s. 38(11).

19The applicant submits that the denial letter addressed the relief and funding as sought but failed to provide any medical reason for denial of the funding. She submits that the treatment plan is therefore payable on this basis.

20The respondent submits that its denial letters complied with the Schedule. It submits that by letter dated March 29, 2022, it communicated an interim denial pending an IE. In its correspondence dated June 24, 2022, it communicated a final denial in reliance on a Physiatry IE report prepared by Dr. Ko, dated June 23, 2022, which confirmed that the applicant sustained soft tissue injuries and hyperbaric oxygen treatment was not indicated. In the respondent’s correspondence dated October 10, 2023, it re-affirmed its denial in reliance on a Physiatry IE Addendum report prepared by Dr. Ko, dated October 4, 2023.

21I find upon review of the March 29, 2022 denial letter, that it is a valid denial letter. The letter advises the date of the treatment plan recommending hyperbaric oxygen therapy. It indicates that the treatment plan is denied for the following reasons:

Your claim is almost 5 years post MVA and we have received no clinical notes and records from your physician that would support Hyperbaric Oxygen Therapy. As such we will be seeking a second opinion.

22I find that 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 decision. It advised the applicant that as it did not have any Clinical Notes and Records (“CNRs”) to support the proposed treatment, it would be seeking a second opinion via a s. 44 assessment. Details of the s. 44 assessment were subsequently provided, and the applicant attended for the assessment.

23For the reasons outlined above, I find that the applicant’s claim that the treatment plan for hyperbaric oxygen therapy is payable as a result of the respondent’s non-compliance with s. 38(8) of the Schedule is denied.

The reasonable and necessary test for a CAT Impairment Assessment

24Pursuant to s. 25(1)5 of the Schedule, the insurer shall pay for reasonable fees charged for preparing an application under s. 45 for determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

25This is to be read in conjunction with s. 25(5)(a) of the Schedule which provides that the insurer shall not pay more than $2,000.00 plus applicable taxes for fees and expenses for conducting any one assessment or examination and the preparation of the related report.

26To determine entitlement, the insured person must prove on a balance of probabilities, with supporting evidence, that there is a reasonable basis to investigate whether the insured person is catastrophically impaired. There must be some suggestion that the specific condition exists, arose from the accident, and that further investigation is reasonable and necessary. The insured is required to prove that each constituent assessment is reasonable and necessary and that the fees charged for each assessment are reasonable.

Entitlement to the treatment plan for CAT assessments dated May 6, 2022

27The applicant claims entitlement to $15,121.00 ($25,920.00 less $10,799.00 approved) for CAT impairment assessments, proposed by Biomex Impairment and Diagnostic Centre Inc., in a treatment plan dated May 6, 2022. The treatment plan recommends the following:

1. Orthopaedic Surgeon CAT Assessment: $2,000.00
2. Executive Summary and Rating: $2,000.00
3. Medical File Review: $2,000.00
4. Neurological CAT Assessment: $2,000.00
5. Neurological CAT Assessment Part 2: $2,000.00
6. Psychiatric Evaluation Part 1: $2,000.00
7. Psychiatric Evaluation Part 2: $2,000.00
8. Psychiatric Evaluation Part 3: $2,000.00
9. Psychiatric Testings: $2,000.00
10. Occupational Therapy In-Home Assessment: $2,000.00
11. Occupational Therapy Situational Assessment: $2,000.00
12. Occupational Therapy Communication with Family: $2,000.00
13. OCF-18 Completion: $200.00
14. OCF-19 Completion: $200.00
15. Travel Time for Occupational Therapist: $399.00
16. Claimant Transportation to treatment: $341.00
17. Interpretation, service: $780.00

28By correspondence dated June 18, 2022, the respondent approved $10,799.00 of the treatment plan for five CAT assessments, including an Orthopaedic Assessment, Executive Summary, Neurological Assessment, Psychiatry Assessment, Occupational In-Home Assessment, as well as the OCF-18 completion, OCF-19 completion and provider travel time. It denied the other services due to duplication and excessive fees as per the Cost of Assessments and Examinations Guideline (Superintendent’s Guideline No. 08/10). It also denied the transportation costs at line 16 based on s. 25(5)(a) of the Schedule and the interpretation services at line 17, as there is no indication from review of the documentation on file that a translator is required to complete the assessment.

29I find based on the parties’ submissions that both parties agree that CAT assessments are required but disagree on the number of assessments required to adequately adjust the file.

30I find upon review of the applicant’s submissions that she has provided a summary of various medical reports setting out her impairments. I find that she has not provided any submissions as to why the denied amounts in the treatment plan are reasonable and necessary and therefore payable.

31In the applicant’s reply submissions, she submits that payment of CAT impairment assessments is a substantive right. She further submits that from the decision in R.S.H. v. T.D. General Insurance Company, 2023 CanLII 145 (ON LAT), we know that “citing duplication of services is not providing a valid medical or other basis for denial of payment”. She further relies upon the Tribunal decision in 17-003496 v. T.D. Insurance, 2018 CanLII 13167 (ON LAT) where the Tribunal found that the applicant was entitled to payment for six assessments for a CAT impairment assessment because the applicant had serious psychiatric impairments that may have been in part caused by the accident. The applicant submits that as her injuries and impairments are a direct result of the accident, it is reasonable for her to pursue the possibility that she may be catastrophically impaired.

32I find that while the applicant submits that citing duplication of services is not providing a valid medical or other basis for denial of payment, she has not provided the Tribunal with any submissions as to why she requires two neurological assessments, three psychiatric assessments plus an assessment for testing, and three occupational therapy assessments. I find that simply summarizing the findings of her medical assessments, does not provide the Tribunal with an explanation as to why more than one assessment in a single discipline is required and she therefore has not met her onus of proving that the additional assessments are reasonable and necessary. I agree with the respondent that duplication of services is a valid basis to deny the assessments where no reasonable explanation has been provided by the applicant. I further find that she has not addressed the denial of the Medical File Review, transportation expenses or interpretation services in her submissions.

33For the reasons outlined above, I find that the applicant is not entitled to the balance of the treatment plan for CAT assessments, dated May 6, 2022.

Entitlement to the treatment plan for CAT assessments dated May 11, 2022

34The applicant claims entitlement to $13,255.00 ($15,455.00 less $2,200.00 approved) for CAT impairment assessments, proposed by Biomex Impairment and Diagnostic Centre Inc., in a treatment plan dated May 11, 2022. The treatment plan recommends the following:

1. Occupational Therapy In-Home Assessment: $2,000.00
2. Occupational Therapy Situational Assessment: $2,000.00
3. Occupational Therapy Communication with family: $2,000.00
4. Neuropsychological Assessment Part 1: $2,000.00
5. Neuropsychological Assessment Part 2: $2,000.00
6. Neuropsychological Assessment Part 3: $2,000.00
7. Neuropsychological Assessment Part 4: $2,000.00
8. OCF-18 Completion: $200.00
9. OCF-19 Completion: $200.00
10. Provider travel time, provider to treatment: $399.00
11. Claimant transportation to treatment: $56.00
12. Interpretation, service: $600.00

35By correspondence dated June 18, 2022, the respondent approved $2,200.00 of the treatment plan for a Neuropsychological Assessment and completion of the OCF-18. It denied the other services due to duplication and excessive fees as per the Cost of Assessments and Examinations Guideline (Superintendent’s Guideline No. 08/10). It also denied the transportation costs at line 11 and 12 based on s. 25(5)(a) of the Schedule and the interpretation services at line 13, as there is no indication from review of the documentation on file that a translator is required to complete the assessment.

36It is clear from review of the two treatment plans recommending CAT Assessments, that the three Occupational Therapy Assessments and the completion of the OCF-19 are duplications as both treatment plans that were prepared within a week of each other by the same clinic, list identical assessments.

37As found above at paragraph [30] of my decision, I find that the applicant has not addressed the specific items that were denied in the treatment plan in her submissions, and she has not provided any submissions as to why the denied services and fees are reasonable and necessary. The applicant has not provided any submissions as to why four Neuropsychological Assessments are reasonable and necessary to address her impairments. I further find that she has not addressed the denial of the second OCF-19 completion, the provider travel time, the claimant transportation to treatment or the interpretation services.

38For the reasons outlined above, I find that the applicant is not entitled to the balance of the treatment plan for CAT assessments, dated May 11, 2022.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that no benefits are owing, it follows that no interest is payable pursuant to s. 51 of the Schedule.

Award

40The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

41For the reasons outlined above, I find that the applicant is not entitled to the treatment plans in dispute, interest or an award. The application is dismissed.