Licence Appeal Tribunal File Number: 24-000278/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:

Alexandra Newman

Applicant

and

Aviva General Insurance

Respondent

ADJUDICATOR: Yanick Charbonneau

APPEARANCES:

For the Applicant: Haider Bahadur, Counsel

For the Respondent: Kathleen Mertes, Counsel

HEARD: In Writing

1Alexandra Newman, the applicant, was involved in an automobile accident on August 24, 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, Aviva General Insurance, 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 $2,198.80 for physiotherapy services, in a treatment plan dated August 4, 2022?

ii. Is the applicant entitled to $2,693.82 for an occupational therapy assessment dated August 4, 2022?

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

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

RESULT

i. I find that the applicant is entitled to payment of the treatment plan of $2,198.80 for physiotherapy services, if incurred on or after the 11th business day after they were submitted to the respondent, and once properly invoiced.

ii. I find that the applicant has not met her onus to demonstrate entitlement to $2,693.82 for an occupational therapy assessment, in a treatment plan dated August 4, 2022.

iii. No award is payable because no benefits were unreasonably withheld or delayed.

iv. The applicant is entitled to interest on any overdue benefits.

PROCEDURAL ISSUES

3The respondent has requested that the Tribunal not consider Exhibit R-1 of the applicant’s submissions, given as the submissions exceeded the 12-page limit, as ordered in the Case Conference Report and Order (CCRO) of June 19, 2024. It submits that it is therefore prejudiced, given that it has had to comply with the page limit ordered in the CCRO, while the applicant has not, and that this is in violation of the principles of procedural fairness.

4The applicant submitted that the submissions are well within the 12-page limit for submissions set out in the Order. They provide a complex roadmap as to how the re-formatting of their submissions would cumulate to 9 pages in total.

5In my view, the applicant has not abided with the strict requirements, as instructed in the CCRO, on the page limits and the format.

6Nevertheless, I find that the respondent has had the opportunity to present its evidence and submissions, and to respond to the applicant’s submissions. As such, I do not agree that the respondent was prejudiced or that there is a breach of procedural fairness here. Accordingly, I find that it is fair and proportionate to consider Exhibit R, and indeed, all of the applicant’s submissions in these proceedings.

ANALYSIS

Section 38(8)

7Section 38(8) of the Schedule requires an insurer to respond to each treatment plan within business 10 days after receiving it by identifying the goods, services, assessments and examinations described in the treatment plan that the insurer does and does not agree to pay for. The response must include the medical reasons and all of the other reasons why the insurer considers any proposed treatments or assessments not reasonable or necessary.

8If an insurer fails to comply with s. 38(8), the consequences in s. 38(11) are:

(i) The insurer cannot take the position that the insured person has an impairment to which the MIG applies; and

(ii) The insurer must pay for any proposed treatments or assessments set out in the plan that are incurred in the period starting on the 11th day after the insurer receives the plan and ending on the date when the insurer provides the insured with a response that complies with s. 38(8).

The applicant is entitled to $2,198.80 physiotherapy, in a treatment plan dated August 4, 2022, due to the respondent’s denial being non-compliant with s. 38(8) of the Schedule

9I find that the applicant has established that the respondent was non-compliant with s. 38(8) in its denial of the physiotherapy services plan.

10The applicant argues that the respondent's notice of denial (or “denial letter”) did not provide specific or meaningful details regarding the applicant's medical history or related to the treatments proposed in the treatment plan or related to the specific accident-related injuries. Further, they submit that the respondent's reliance on improperly procured Insurer Examinations (IEs), and its findings are void ab initio.

11The respondent argues that the Explanation of Benefits (EOB) denials and the Notice of Examination conformed to the requirements of s.38(8) and 44(5) of the Schedule. Further, it submits that the applicant's submissions do not provide any substantive evidence that the two treatment plans are reasonable and necessary, as required per s.15 of the Schedule. In support of its position, the respondent relies on its denial letters. Further, it cites the decision of this Tribunal, B.H. and Aviva Canada Inc., 17-003774/AABS.

12The notice of denial dated August 18, 2022 states as follows:

“You have received a considerable amount of treatment to date. On April 27, 2022 you were assessed by Dr. Safir, an Orthopaedic Surgeon. Dr. Safir indicated in his report that you had reached Maximum Medical Recovery from your physical injuries and there was no objective evidence to support ongoing treatment. As this applied to a different OCF 18, treatment plan that was submitted, we are referring the OCF 18 to Dr. Safir to provide a paper review on the current treatment plan.”

13I find that the respondent’s notice of denial does not meet the requirements of s.38(8) of the Schedule as it does not outline the applicant's medical condition that formed the basis of the decision, nor does it request additional information it requires but does not have. To the extent that there are not sufficient details provided from the s.44 examination, it is impossible to determine from this denial letter to what extent the applicant had reached maximum medical recovery from their physical injuries and the statement that there was no objective evidence to support ongoing treatment is equally vague. With the understanding that having reached maximum medical recovery would necessarily have to be differentiated, depending on the insured’s personal medical situation and accident - related injuries sustained, and the treatments they have undertaken, I find that I am left uncertain as to the particulars.

14To the same effect, I also find that the lack of objective evidence to support ongoing treatment, as stated by the respondent in its denial does not meet the requirement that it is requesting additional information it requires, but does not have. In my view, the lack of objective evidence, without further details, does not offer any medical reasons for the denial.

15Finally, the statement in the denial that the applicant has received considerable amount of treatment to date does not offer sufficient information, given that it also fails to address the applicant’s needs as indicated in the OCF-18 proposed vis-a-vis their medical conditions / impairments.

16Accordingly, I find that the first denial notice does not provide specific or meaningful information for the applicant to decide whether they ought to abide by the IE examination request, or not pursue their claim for the specific treatment plan.

17With regard to the second denial letter / notice dated October 3, 2022, I find that it does not comply with s.38(8) of the Schedule, because it explains that the applicant has reached maximum medical recovery, and that the treatment plan proposed is not reasonable and necessary.

18It is not sufficient for the respondent to assert in its second notice that the applicant has reached maximum medical recovery, although the IE examination result was appended to the October 3, 2022 notice.

19In consideration that the October 3, 2022 notice only states that the applicant has reached maximum recovery, and that it does not outline the applicant’s medical condition that formed the basis of the decision, I find that there are not sufficient details provided from the s.44 examination. In my view, it is impossible to determine from this second denial letter to what extent the applicant had reached maximum medical recovery from their physical injuries.

20Further, the respondent’s statement in its October 3, 2022 denial notice that the applicant has reached maximum medical recovery and that the treatment plan proposes is not reasonable and necessary fails to address the applicant’s needs, as indicated in the OCF-18 proposed as it relates to the applicant's medical conditions / impairments.

21Therefore, I find that the respondent’s October 3, 2022 denial letter has not provided specific or meaningful reasoning in compliance with the requirements outlined in s.38(8) of the Schedule.

22As the respondent has not issued a compliant denial notice for the treatment plan for physiotherapy, pursuant to s.38(11) of the Schedule, the applicant is entitled to payment of benefits set out in the treatment plan, if incurred on or after the 11th business day after they were submitted to the respondent, and once properly invoiced.

The applicant is not entitled to $2,693.82 for an occupational therapy assessment dated August 4, 2022, because the respondent’s denial was compliant with s.38(8) of the Schedule

23I find that the applicant has not established that the respondent was non-compliant with s.38(8) in its denial of the occupational therapy assessment.

24The applicant argues that the respondent's denial notice did not provide specific or meaningful details regarding the applicant's medical history or related to the treatments proposed in the treatment plan or related to the specific accident-related injuries. The applicant also argues that the respondent's denial addresses only specific goals captured in the OCF-18, including shower transfer and bathing assessment, and building independence in Activities of a Daily Living (ADL's); therefore, in their view, the rationale in the OCF-18 could justify a partial denial, but, not its complete denial. Further, they submit that the respondent’s reliance on improperly procured IEs, and its findings are void ab initio.

25The respondent submits that, in their submissions, the applicant does not address the initial EOB letter of denial sent on March 28, 2022, although it indicates that due to an administrative error, this initial EOB was dated August 27, 2021. Further, the respondent asserts that the applicant has failed to provide submissions on the reasonableness and necessity of the treatment plans. Otherwise, the respondent’s submissions are the same as stated above.

26I find that the respondent’s notice satisfies the requirements of s.38(8) of the Schedule: Although it does not outline the applicant’s accident -related impairments as such, it references clearly that the medical records supplied, including the IE examination do not support a need for assessment, given that “there is no level of impairment in terms of her ability to care for herself, such as perform her activities of a daily living”. In my view, it is plain and clear that the respondent has assessed that the fact that the applicant does not have the level of impairment to perform ADLs, clearly forms the basis of its decision to deny.

27Further, I also find that the denial fairly and reasonably laid out the lack of need of the applicant for a treatment plan which recommends “assistance with shower transfer and bathing assessment and building independence with ADLs. (activities of daily living)”. Therefore, in my view, the plain meaning of the words activities of a daily living is given some context, for the applicant to understand the reasons for the denial.

28Accordingly, I find that the denial provides sufficient information for the applicant to decide whether they ought to abide by the Insurer’s examination request, or not pursue their claim for the specific treatment plan.

29As a result, the applicant is not entitled to payment of benefits set out in the treatment plan pursuant to s.38 of the Schedule. Further, the applicant did not provide any submissions on whether the treatment plan in dispute is reasonable or necessary.

Interest

30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable on the physiotherapy services treatment plan that has been incurred.

Award

31The 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.

32The applicant submitted that the respondent has denied the treatment plans claimed, based solely on “cookie cutter” explanations, and that it has relied on improperly compelled IEs to provide substantive denial reasons, with the purpose to cure the initial denial. I do not agree.

33In my view, the respondent’s failure to provide clear reasons in the Explanations of Benefits, that is the notices of denial does not necessarily equate that the respondent has subjected the applicant to IEs to cure its denial, or that, as put forward by the applicant, that the respondent has purposefully excluded any consideration of any aspect of the merits of the treatment plans proposed. Accordingly, I deny the request for an award.

ORDER

34I find that:

i. The applicant has established entitlement to the physiotherapy services claimed pursuant to s.38(8), if incurred on or after the 11th business day after they were submitted to the respondent, and once properly invoiced.

ii. The applicant is not entitled to the payment of the occupational therapy assessment, in a treatment plan dated August 4, 2022.