Licence Appeal Tribunal File Number: 24-011435/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:
Kabita Dhar
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Kabita Dhar, Applicant (self-represented)
For the Respondent:
Amanda Lennox, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kabita Dhar, the applicant, was involved in an automobile accident on May 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Co-operators 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 $19,964.00 for multidisciplinary catastrophic (“CAT”) assessments proposed by Spine Health Care Clinic in a treatment plan/OCF-18 (“plan”) dated August 18, 2022?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the plan for CAT assessments.
4The respondent is not liable to pay an award.
5The applicant is not entitled to interest.
6The application is dismissed.
ANALYSIS
The applicant is not entitled to the plan for CAT assessments
7I find that the applicant is not entitled to the plan for CAT assessments because the denial letter complies with the requirements of s. 38(8) of the Schedule, and the applicant has not met her onus to prove on a balance of probabilities that the plan is reasonable and necessary.
Section 38(8) argument
8I find that the denial letter complies with the requirements of s. 38(8) of the Schedule.
9Section 38(8) provides that the insurer must reply to a plan within 10 business days after receipt of the treatment plan, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies, if the plan was incurred during the period of non-compliance (the “shall pay period”).
10The applicant submits that the respondent’s denial of the plan does not comply with s. 38(8) because it lacks proper medical reasons, and the insurer relied only on an adjuster’s opinion. The applicant further argues that the denial was not supported by any independent medical examination or physician’s opinion.
11The denial letter dated September 12, 2022, indicates that the proposed plan is denied and provides the following “medical and all other reasons for denied expenses:”
Upon reviewing Dr. Zaman’s clinical notes and records on file, it is noted that you have a history of left shoulder pain where pain radiates toward left arm, neck and back. Dr. Zaman noted that you have a history of remote injury on the left shoulder and history of repetitive over the shoulder activity and was (sic) diagnosed with tendinitis on November 23, 2016. Dr. Zaman indicated that you also have a history of neck radiculopathy per his note on September 1, 2020. As per his January 119, 2021 note, it’s noted that you had an exacerbation of chronic neck pain and now more recently left-sided numbness and made recommendations of local physiotherapist (sic) that are all OHIP covered.
In addition, we do not have sufficient medical documentation on file to support the need of multi-disciplinary Catastrophic assessment. It is noted that you last attended treatment on December 5, 2019. We do not find this treatment plan for Catastrophic assessment reasonable and necessary.
At this time we would like to request for (sic) updated medical records,
i. Updated Dr. Zaman clinical notes and records
ii. Clinical notes and records from any specialists seen post-accident
12The respondent submits that its denial letter complied with s. 38(8) of the Schedule. It refers to the plan, which was submitted via HCAI on August 29, 2022, and its denial letter dated September 12, 2022, which was sent on the ninth business day (pointing out that September 5, 2022 was Labour Day and does not count as a business day).
13The respondent further submits that the denial letter provided a principled rationale based on the medical information within the file, which is exactly what is required by s. 38(8). The respondent also argues that medical reasons do not equate to an independent medical assessment or opinion.
14I find that the respondent’s denial letter was sent within ten business days after receipt and contains clear medical “and other” reasons. The letter identifies the disputed plan, clearly indicating that it is denied, refers specifically to the applicant’s medical documentation and condition, points out the lack of ongoing treatment, and requests further information from the applicant. I find that the letter is clear and sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
15In response to the applicant’s argument that the denial was not supported by any independent medical examination or physician’s opinion, I note that s. 38(10) of the Schedule sets out that an insurer “may” require the applicant to undergo an assessment in response to the receipt of an OCF-18, however, it is not mandatory.
16For these reasons, I find that the respondent’s denial letter complies with s. 38(8) of the Schedule. As the denial letter is compliant, the “shall pay” provisions of s. 38(11) are not triggered.
Reasonable and necessary
17The applicant has not met her onus to prove on a balance of probabilities that the plan for CAT assessments is reasonable and necessary.
18The purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
19Section 25(1)5 of the Schedule requires the insurer to pay reasonable fees charged for preparing an application for determination of CAT impairment under s. 45, including any assessment or examination necessary for that purpose.
20The plan was proposed by Dr. Darren Hylton, chiropractor. The plan proposes a chronic pain assessment, a psychiatry assessment, an ADL & situational assessment, an overall assessment summary, analysis and final rating, file and medical document review, completion of the OCF-18, completion of the OCF-19, interpretation if needed, transportation for applicant. The goals of the plan are to determine the nature and extent of the applicant’s physical and psychological injuries that are a result of her accident to direct her rehabilitation, and to determine whether the applicant’s injuries are CAT.
21The applicant submits that pursuant to s. 45 of the Schedule, to determine if a person is CAT, a Whole Person Impairment rating is required. This rating can only be achieved through a multidisciplinary assessment, which is what the disputed plan proposes. Further, the applicant submits that the cost of CAT assessments is not subject to the monetary limits imposed by s. 18 of the Schedule. The applicant also submits that Tribunal decisions have consistently affirmed that plans submitted for the purpose of CAT determination fall outside the $50,000.00 limit (which I note is not the limit provided for in the Schedule).
22The applicant takes the position that, based on a review of the medical information, she has a reasonable likelihood of being determined to have suffered a CAT impairment. The applicant does not refer to any medical evidence to support this submission.
23I note that the applicant relies only on the plan in dispute. She does not direct me to any independent medical evidence in support of the plan. Further, as pointed out by the respondent, the plan in dispute simply lists the applicant’s accident-related impairments and the type of assessments proposed, with no discussion regarding the nexus between them. There is nothing in the plan justifying the need for any of the assessments and how they relate to the accident. Based on the evidence, I find that the applicant has not proven on a balance of probabilities that there are grounds on which to believe that a condition exists that would warrant further investigation by way of any of the proposed CAT assessments.
24For these reasons, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that the plan for CAT assessments is reasonable and necessary.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
26The 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. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
27For the above reasons, I find:
i. The applicant is not entitled to the plan for CAT assessments.
ii. The applicant is not entitled to interest.
iii. The respondent is not liable to pay an award.
iv. The application is dismissed.
Released: March 26, 2026
Laura Goulet
Adjudicator