Licence Appeal Tribunal File Number: 24-006730/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:
Mimi April Heath Applicant
And
Allstate Insurance Company of Canada Respondent
DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Rozana Karim, Paralegal
For the Respondent: Diana Oliveira, Counsel
HEARD: In writing
OVERVIEW
1Mimi April Heath, the applicant, was involved in an automobile accident on December 4, 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, Allstate Insurance Company of Canada, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2It appears that the at the time of the accident the applicant was known as Melissa McAllister and that she subsequently changed her name to Mimi April Heath. The respondent’s submissions mention the name change to Mimi April Heath, but it does not state what the applicant’s previous name was. The applicant makes no submissions on this point. I believe it is reasonable to infer that Melissa McAllister is the applicant’s previous name as there are numerous documents, such as treatment plans and medical reports, referencing this name.
ISSUES
3Preliminary Issues: The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing on the income replacement benefit (IRB) because the applicant failed to dispute their denial within the 2-year limitation period?
4Substantive issues: The issues to be decided in the hearing are:
i. Is the applicant entitled to an IRB in the amount of $400.00 per week from December 11, 2021, to date and ongoing?
ii. Is the applicant entitled to medical services proposed by E Clinic, as follows:
$180.00 ($3,918.80 less $3,738.80 approved) for chiropractic services, in a treatment plan/OCF-18 (“plan”) submitted July 20, 2022, and partially denied July 27, 2022; and
$160.00 ($1,727.78 less $1567.78 approved) for Botox injections, in a plan submitted January 4, 2023, and partially denied January 16, 2023?
iii. Is the applicant entitled to medical services proposed by iScope Concussion and Pain Centers, as follows:
$1,550.00 for Botox injections, in a plan submitted June 7, 2022, and denied June 16, 2022;
$374.10 ($3,067.85 less $2,693.75 approved) for vestibular services, in a plan submitted June 7, 2022, and partially denied June 16, 2022;
$279.07 ($1,108.40 less $829.33 approved) for other assistive devices, in a plan submitted October 24, 2022, and partially denied November 1, 2022;
$2,012.93 ($3,060.81 less $1047.88 approved) for occupational therapy services, in a plan submitted October 24, 2022, and partially denied November 1, 2022;
$810.00 ($4,030.00 less $3,220.00 approved) for social work services, in a plan submitted January 4, 2023, and partially denied January 16, 2023; and
$720.00 ($3,710 less $2,990.00 approved) for social work services, in a plan dated April 21, 2023?
iv. Is the applicant entitled to $4,363.00 for social work services, proposed by Critical Trauma Therapy in a plan submitted May 24, 2023, and denied June 6, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant barred from proceeding to a hearing on the IRB.
6The applicant is entitled to treatment plan in issue 3(i), $1,550.00 for Botox injections, and partially entitled to the plan in 3(iii), $25.99 for a cold cap.
7The applicant is entitled to interest.
8The remainder of the application is dismissed.
ANALYSIS
Preliminary issue
9I find that the two year s. 56 limitation applies, and that the applicant cannot proceed to a hearing for the IRB.
10Under s. 56 of the Schedule, applications to the Tribunal must commence within two years after the insurer’s refusal to pay a benefit.
11According to the applicant, the insurer’s denial letter for the IRB is dated September 16, 2024. As the application is dated May 28, 2024, she submits that the two year limitation period does not apply.
12The respondent argues that the IRB denial letter is dated March 10, 2022 and that the limitation period does apply.
13The Explanation of Benefits, dated March 10, 2022, states that the applicant is not eligible for an IRB and provides reasons for this determination. This is a clear denial of the IRB.
14In her submissions, the applicant states the IRB denial date is September 16, 2024 and post-dates the application. On the application, the denial date is May 27, 2024, one day before the application was filed. The applicant has not pointed me to where these more recent IRB denials can be found, and I was not pointed or directed to these denials in her document brief. As such, I am not persuaded of either the September 16, 2024 or the May 27, 2024 IRB denial dates.
15The applicant made no submissions on the Tribunal exercising its discretion under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G to extend time to file the appeal beyond the limitation period.
16Consequently, I give weight to the March 10, 2022 Explanation of Benefits and find that the applicant cannot proceed to a hearing for the IRB as the two year limitation period in s. 56 applies.
17To 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.
Issue 2(i), $180.00 ($3,918.80 less $3,738.80 approved) for chiropractic services, and issue 2(ii), $160.00 ($1,727.78 less $1567.78 approved) for Botox injections
18I find that the applicant is not entitled to the disputed amounts of these partially approved treatment plans.
19The applicant submits that the respondent’s partial denials are not justified as no rationale was provided.
20In the Explanation of Benefits for issue 2(i), dated July 27, 2022, the respondent denied the payment of $200.00 for the delivery of yoga blocks. Instead, it paid $20.00 and offered to pay more funds if receipts were provided to show that delivery cost more.
21For issue 2(ii), the respondent points to the Explanation of Benefits, dated January 16, 2023, which also denies a $200.00 delivery fee. The respondent paid $40.00 for delivery and noted that the items in the treatment plan could be picked up at local stores for free or could be purchased online with free shipping.
22The Explanation of Benefits cited by the respondent does give reasons for the partial approval of shipping fees. However, the applicant has not explained why the full $200.00 delivery fees for each plan are reasonable.
23As the applicant has not provided a basis to find that the delivery fees are reasonable and necessary the applicant has not satisfied their onus on a balance of probabilities and, I find that she is not entitled to these disputed amounts.
Issue 3(i), $1,550.00 for Botox injections
24I find that the applicant is entitled to $1,550.00 for Botox injections.
25The applicant submits that Botox injections are needed to treat her post-traumatic headaches. The applicant points to the consultation note of Dr. Bhaskar, concussion specialist, dated August 18, 2022 which recommends this treatment.
26The respondent argues that Dr. Bhaskar recommended many other things and it is not clear whether the applicant followed any of the other recommendations before seeking Botox injections.
27Dr. Bhaskar’s clinical note shows that she examined the applicant and diagnosed her with Post traumatic headache and Mild traumatic brain injury - Concussion, sleep, cognitive and mood disturbances. As well, the accident is noted as being the “mechanism of injury.”
28Dr. Bhaskar does recommend various therapies. However, I disagree with the respondent’s suggestion that other therapies should be completed before seeking Botox injections. This is not indicated in the clinical note.
29The applicant has referenced medical evidence that supports this treatment. The goal of the plan is to treat accident related refractory headaches. This treatment is recommended by a neurologist and the respondent does not cite any medical opinion which conflicts with the opinion of Dr. Bhaskar. As such, I am satisfied that the goal of treating these headaches is reasonable and can be met to a reasonable degree. The cost of treatment is $1,550.00 for 10 injections. There is nothing about this amount which strikes me as unreasonable. Consequently, I find that the applicant is entitled to $1,550.00 for Botox injections.
Issue 3(ii) $374.10 ($3,067.85 less $2,693.75 approved) for vestibular services
30I find that the applicant is not entitled to the disputed portion of this treatment plan.
31The applicant submits that the disputed amount of $374.10 was denied on procedural grounds and this conflicts with the statutory obligation to fund all reasonable and necessary rehabilitation services.
32The respondent agrees that vestibular therapy is reasonable and necessary, but disputes the payment of planning and preparation services on lines 4 and 5 of the treatment plan. It submits that these fees are actually meant to increase the hourly rates for the treatment beyond what is permitted under the Professional Services Guideline - Superintendent’s Guideline No. 03/14 (Guideline), and therefore, cannot be viewed as reasonable expenses.
33The applicant describes lines 4 and 5 of the treatment plan as being “rehabilitation services” under s. 16(1) of the Schedule. This is incorrect. Line 4 is $224.46 for “Planning, service” which is described in the plan as being “planning and team communication regarding treatment plan.” Nine 15 minute sessions are estimated.
34Line 5 is $149.64 for “Preparation, service.” This is described as “preparation of services – printing and e-mailing or mailing documents, sending questionnaires, completing notes.” Six 15 minute sessions are estimated.
35The relationship between these services and the treatment is unclear because it has not been explained by the applicant. Thus, I have no basis to conclude that these items are reasonable and necessary “rehabilitation services” as described by the applicant. For this reason, I find that she is not entitled to the disputed portions of this plan.
Issue 3(iii), assistive devices
36I find that the applicant is entitled to the cold cap for $25.99. She is not entitled to the remaining items in dispute.
37The applicant notes that the assistive devices in this plan were recommended in an occupational therapy report and that the respondent’s partial denial does not dispute the medical necessity of these assistive devices. Accordingly, the applicant submits that she is entitled to $279.07 for the remaining devices.
38The respondent states that most of this plan was approved, except for two items. It relies on the recommendations in the insurer examination report of Jeff Ford, occupational therapist, dated June 5, 2023, and submits that the rationale in the report that was used to justify the denial is reasonable.
39The Explanation of Benefits dated June 8, 2023 shows that payment for five assistive devices were denied:
Line 2: Calendar
Line 10: Massage Pillow
Line 11: Cold Cap
Line 12: Body Posture Pillow
Line 14: Bed Rail
40The report of Mr. Ford makes the following recommendations for denying some of the assistive devices:
Calendar: “With the claimant integrating her phone calendar and the calendar on her computer, the request for a wall calendar for cueing re: appointments would not be reasonable and necessary.”
Heated massage and body posture pillows: “There is nothing on file that has directly linked sleep challenges with injuries sustained in the subject MVA. Ms. Hassany has recommended provision of a massage pillow and a body posture pillow, neither of which have been trialed, nor any information provided as to their usage and integration.”
Cold cap: “Ms. Hassany has recommended the provision of a “Gel Ice Headache and Migraine Relief Hat, Cold Therapy Headache Relief Cap”. Within the additional comments, there is a discussion of the cap being used “to relieve ongoing headache symptoms”, but there is no supporting documentation presented for review to substantiate this need. Thus, the “Gel Ice Headache and Migraine Relief Hat, Cold Therapy Headache Relief Cap” would not be reasonable and necessary at this time.”
Bed rail: “Ms. Hassany has also recommended the provision of a bed rail, although the claimant was independent or capable of transferring into and out of her bed on February 23, 2023.”
41Mr. Ford does not recommend the calendar because the applicant is able to use the calendar in her phone and computer, and thus, does not need this device. He also states that the applicant does not need the bed rail because she is independent with bed transfers. The applicant makes no submissions on these points, and as such, has given me no basis for me to find that these devices are reasonable and necessary. Therefore, I find that she is not entitled to these two items.
42Recommendations for the other three items are based on causation. Mr. Ford is an occupational therapist and cannot opine on causation. For this reason, I give no weight to these comments.
43The occupational therapy assessment dated October 16, 2022 of Syeda Hassany, occupational therapist, recommends the heated massage and body posture pillows to treat accident related spine injuries. Again, Ms. Hassany is an occupational therapist and cannot opine on causation. Her assessment references the diagnosis of “possible” cervical and lumbar radiculopathy by Linda Johnson, registered nurse. A nurse is not trained to diagnose a spine injury, and as such, little weight can be given to her opinion.
44The applicant relies exclusively on the occupational therapy assessment and has not pointed me to medical evidence that corroborates a spine injury being sustained in the accident. As such, there is insufficient support her entitlement to these two assistive devices which are meant to treat spinal injuries.
45The purpose of the cold cap is to treat ongoing accident related headaches. The applicant directed me to the clinical note of Dr. Bhaskar and I have already found this evidence to be sufficient enough to establish causation for the applicant’s Post traumatic headache. As such, there is a reasonable basis to find that the cold cap will treat an accident related injury. In this particular instance, the recommendation of the occupational therapist is enough to find that the goal of treating the applicant’s headache can be reasonably met. On the face of it, the cost of $25.99 appears reasonable. Consequently, I find that the applicant is entitled to the cold cap.
Occupational therapy services – issue 3(iv)
46I find that the applicant is not entitled to the disputed amount of this treatment plan.
47There are five lines on the treatment. Lines 1 and 4 were fully approved.
48Lines 3, clinical consultation, and Line 5, mileage, were not approved. The applicant made no submissions on these lines. As such, there is no basis for me to find that these items are reasonable and necessary.
49Line 2 is $1995.00 for 20 hours of occupational therapy. The respondent approved $399.00 for 4 hours.
50The applicant submits that the occupational therapy sessions in Line 2 were recommended by Ms. Hassany, occupational therapist, in her report dated October 16, 2022. She also submits that the Form 1 by Ms. Smith, registered nurse, dated April 15, 2024 underscores the medical necessity of occupational therapy to meet the rehabilitation goals of the treatment plan.
51The respondent relies on the opinion of Mr. Ford, occupational therapist. In his report, dated June 5, 2023, he disagrees with the treatment goals of the plan. In his view, the applicant does not have a structured daily routine and would benefit from specific, measurable, achievable, relevant, time-based (SMART) goals for a daily routine as opposed to the open ended goals in the plan. He also disagrees with conducting a cognitive assessment by a occupational therapist, and the exploration of alternative employment for various reasons.
52There is no dispute between the parties in regard to the applicant needing occupational therapy. The dispute relates to the goals of the treatment plan. The report of Ms. Hassany describes what the goals are but does not explain why these goals are reasonable. Goals such as increasing client activation and improving functional tolerance may, on the face of it, appear reasonable. However, the reasonableness of the goals has been called into question. The documents referenced by the applicant do not answer the concerns raised by Mr. Ford. Consequently, I give more weight to Mr. Ford’s evidence because he provides clear and detailed reasons on why the plan does not serve the needs of the applicant. As such, I am not satisfied that the goals of the plan are reasonable, and find that the treatment plan is not reasonable and necessary.
Social work services – issue 3(v)
53I find that the applicant is not entitled to the disputed portions of this treatment plan.
54There are 7 lines in the plan. Lines 1, 2, 5-7 were approved. Line 3, $405.00 for planning services, and Line 4, $405.00 for preparation services. These two lines were denied by the respondent on the ground that these services are administrative costs and are not payable by insurers under Guideline.
55The applicant submits that denying these fees on procedural grounds undermines the integrity of the treatment. She points to the Social Work Progress Report dated May 4, 2023, by Jesse Lin, registered social worker, which states that "planning and preparation time" and "documentation" are mandated by the College's standards of practice and are integral to effective, coordinated care, and withholding these fees "compromises this therapist's ability to adhere to the College's standards of practice and deliver best care". In her view, the applicant is entitled to these fees because they are necessary to facilitate treatment.
56The respondent submits that it did not pay line items 3 and 4 for “the same reasons set out in paragraph 45” of its submissions. I note that this paragraph does not contain any reasons for denying treatment plans.
57The issue to be addressed is whether the services are administrative fees. If they are administrative fees, then the insurer is not liable to pay Lines 3 and 4 as per the Guideline which state:
“Expenses related to professional services” as referred to in the SABS and the Professional Services Guideline include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.
58Administrative fees are expenses which do not involve treatment, other than the fees for completing disability certificates (OCF-3) and treatment plans (OCF-18) as listed at the end of the Guideline.
59Line 4 from the OCF-18 is described as “File research and review as needed.” Line 3 from the OCF-18 is “Communication with rehabilitation team, client communication as needed between sessions.” The applicant has made no submissions on what these fees are. For example, crucial information such as who is performing this work or how this work relates to the applicant’s treatment is unknown. It is possible that these are not administrative services, but there is insufficient evidence to reach that conclusion. As such, the applicant has not met her burden of establishing, on a balance of probabilities, that the insurer is liable to pay Lines 3 and 4, and I find that these lines of the treatment plan are not reasonable and necessary expenses.
Social work services – issue 3(vi)
60I find that the applicant is not entitled to the disputed portion of this treatment plan.
61The applicant submits that it is medically necessary to fully fund the treatment plan as noted in Ms. Lin’s report which explains that “planning and preparation time” and “documentation” are mandated by the College's standards of practice and are integral to effective, coordinated care.
62The respondent submits that it did not pay line items 3 and 4 for “the same reasons set out in paragraph 45” of its submissions. Again, this paragraph does not contain any reasons for denying treatment plans.
63The Explanation of Benefits dated June 5, 2023 shows that shows that line 2 “Planning, service” and line 3 “Preparation, service” were denied.
64Similar to issue 3v, there is insufficient information before me to make a finding that these are not administrative services, and therefore, payable under the Guideline. For this reason, I find that the applicant is not entitled to the disputed portions of this plan.
Social work services – issue 4
65I find that the insurer is not liable to pay this benefit.
66This treatment plan is for 20 sessions with a social worker. The respondent denied this plan on the ground that the applicant already had 20 sessions with a social worker and that this treatment had not resulted in any progress and asked for undated records under s. 33(1) of the Schedule. This is noted on the explanation of benefits form dated June 5, 2023. The form also noted that under s. 33(6) of the Schedule, the respondent is not liable to pay this benefit while this request for information remains unfulfilled.
67According to the respondent, the applicant has not provided the requested information. The applicant did not file reply submissions, and as such, there is no confirmation that she has complied with the s. 33(1) request for information.
68In light of these circumstances, I find that under s. 33(6) the respondent is not liable to pay this treatment plan because the applicant has failed to comply with a request made under s. 33(1).
Interest
69Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest for treatment plan 3(i) and the cold cap in 3(iii).
ORDERS
70The applicant is entitled to treatment plan in issue 3(i), $1,550.00 for Botox injections, and partially entitled to the plan in issue 3(iii), $25.99 for a cold cap.
71The applicant is entitled to interest.
72The remainder of the application is dismissed.
Released: March 4, 2026
__________________________
Harry Adamidis Adjudicator