Licence Appeal Tribunal File Number: 24-001688/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:
Meng Yang Luo
Applicant
And
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Estella Muyinda
APPEARANCES:
For the Applicant:
Rakesh Sharma, Counsel
For the Respondent:
Rishabh Kalani, Counsel
HEARD:
By way of written submission
OVERVIEW
1Meng Yang Luo, the applicant, was involved in an automobile accident on December 20, 2022, 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:
Is the applicant entitled to $1,397.00 for physiotherapy services, proposed by Atlas Physiotherapy and Health in a treatment plan/OCF-18 (“treatment plan”) dated June 8, 2023?
Is the applicant entitled to the plans proposed by Somatic Assessments and Treatment, as follows:
a. $1,108.12 ($3,701.88 less $2,593.76 approved) for psychological services, in a treatment plan dated March 13, 2023.
b. $1,108.12 ($3,701.88 less $2,593.76 approved) for psychological services, in a treatment plan dated May 16, 2023; and
c. $1,108.12 ($3,701.88 less $2,593.76 approved) for psychological, in a treatment plan dated October 17, 2023?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits.
3The applicant submits that the applicability of the Minor Injuries Guideline (MIG) is not in dispute as the respondent letter dated May 3, 2023, removed the applicant from MIG.
RESULT
4The applicant is not entitled to $1,108.12 ($3,701.88 less $2,593.76 approved) for psychological services, in a treatment plan dated March 13, 2023.
5The applicant is not entitled to $1,108.12 ($3,701.88 less $2,593.76 approved) for psychological services, in a treatment plan dated May 16, 2023.
6The applicant is not entitled to $1,108.12 ($3,701.88 less $2,593.76 approved) for psychological, in a treatment plan dated October 17, 2023.
7The respondent is not liable to pay an award under s. 10 of Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.
8The applicant is not entitled to interest.
ANALYSIS
9I find that the applicant has not established on a balance of probabilities that the remaining amount of $1,108.12 for psychological services in each of the treatment plans dated March 13, 2023, May 15, 2023, and October 17, 2023, is reasonable and necessary.
10To 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.
11To 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.
12The applicant’s claim centers around the cost assigned to the duration of the psychological therapy sessions by Dr. McDowall and the amount for documentation support.
13The applicant submits that the treatment plans prepared by Dr. Sharleen McDowall, psychologist, dated March 13, 2023, May 15, 2023, and October 17, 2023, were partially approved as shown in the respondent’s denial letters dated May 3, 2023, May 16, 2023, and October 18, 2023.
14The applicant submits that the respondent approved treatment for 1-hour sessions, while she is entitled to the 1.5-hour sessions recommended by Dr. McDowall. The respondent also approved $299.22, or two hours of documentation support, rather than the claimed $360.00. The applicant asserts that the respondent has not provided reasons for not approving the recommended amount in the treatment plan for documentation support and she should be entitled to $360.00, the full amount.
15The applicant submits that she attended at s.44 Insurer’s Examination (IE) assessor Dr. Nicole Azizli, psychologist, on April 12, 2023, to determine if she had a psychological impairment and if the denied OCF18 was reasonable and necessary.
16The applicant states that, Dr. Azizli in her report dated April 27, 2023, indicates that the applicant reported that the psychological sessions she received from the s.25 assessor, Dr. McDowall, were for 45 minutes. The applicant submits that Dr. Azizli based her recommendation that 1-hour sessions were reasonable upon the applicant reporting to her that the sessions were for 45 minutes each.
17However, Dr. McDowall in her report dated February 15, 2023, says that the duration of the psychological sessions was for a 1.5-hour. Therefore, the applicant argues that the proposed cost for psychological sessions of 1.5-hour proposed by Dr. McDowall should be approved over the recommendation by Dr. Azizli.
18Further, the applicant asserts that the proposed treatment of 1.5 hours should be accepted because Dr. Azizli does not provide her rationale or medical opinion to justify the recommendation for 1-hour sessions. Additionally, the applicant argues that there was no patient and treatment provider relationship between her and Dr. Azizli, therefore the balance of the treatment plan should be approved in full, and the respondent should rely on Dr. McDowall’s recommendation over the recommendation of the s.44 assessor, Dr. Azizli.
19The respondent submits that all three treatment plans in dispute proposed the following treatment which was partially approved for $2,593.76.
Line 1.
14 sessions of psychological therapy of 1.50 hours at the hourly rate of $149.61
for $3,141.88
Line 2.
1 Quantity of Document support activity
for $360.00
Line 3.
1 Quantity of Document support activity for a claim form
for $200.00
20The respondent submits that it relies on the recommendations of Dr. Azizli that were relayed to the applicant in each of the denial letters. The respondent states that the denial letter adopts the s.44 report prepared by Dr. Azizli and her recommendation. I note that the respondent relies on the same analysis by Dr. Azizli to deny each of the treatment plans, even those that post date her s.44 IE.
21The respondent submits that Dr. Azizli administered several tests, including the Structured Inventory of Malingered Symptomatology (SIMS), Pain Patient Profile (P3), and Personality Assessment Inventory (PAI) and based on the interview and test administered, Dr. Azizli diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, which was partially related to the accident, noting that the applicant had two other accidents, one before and one after this accident. Dr. Azizli took into account the fact that the applicant had already attended seven 45-minute sessions of psychological treatment and then recommended 1-hour sessions, which were longer than the sessions the applicant was already attending.
22Further, the respondent submits that each of the denial letters dated May 3, 2023, May 16, 2023, October 18, 2023, makes multiple references to the applicant’s medical conditions. The respondent asserts that the denial letter also encloses the s.44 reports prepared by Dr. Jugnundan and Dr. Azizli.
23Additionally, the respondent asserts that the applicant has not made any submissions to state why 1.5-hour sessions are reasonable and necessary. Further, the respondent submits that the applicant has not adduced any evidence from Dr. Tong, her family doctor, or Dr. McDowall, that the 1-hour sessions were not reasonable and necessary or that the 1-hour sessions were insufficient to meet the treatment goals. I agree with the respondent that the applicant has not made any submissions to support 1.5 hours.
24I find that the applicant has not directed me to evidence that establish her claim that the 1.5-hour session is reasonable and necessary. In addition, the applicant has made no effort to explain why the payment for the psychological session for 1.5-hour session is appropriate.
25Upon review, I note that within the three denial letters, the respondent provided the applicant with specific details about her condition through the s.44 report by Dr. Azizli that is attached to the denial letters. As well, the report reveals that Dr. Azizli considered the seven 45-minute sessions of psychological treatment when she recommended 1-hour sessions and she opined that they were more than the sessions the applicant was already attending. Thus, I find that the applicant has failed to discharge her onus that 1-hour sessions were insufficient to meet treatment goals. As a result, I find that the applicant has failed to prove on a balance of probabilities that the remaining balance of $1,108.12 for this treatment plans is reasonable and necessary.
26Accordingly, the applicant is not entitled to the remaining $1,108.12 for psychological services in the treatment plans dated March 13, 2023, May 15, 2023, and October 17, 2023.
Documentation Support Activity
28The applicant argues that the respondent has failed to provide “medical and any other reasons” for partially denied documentation support activity. The three disputed treatment plans dated March 13, 2023, May 15, 2023, and October 17, 2023, proposed 1 quantity of documentation support activity for at $360 (whereas the respondent approved $299.22, leaving $60.78).
29The respondent submits that the applicant does not provide exactly what is being claimed through documentation support activity. The respondent asserts that the denial letters dated May 3, 2023, May 16, 2023, October 18, 2023, each make multiple references to the applicant’s medical conditions, including the s.44 reports prepared by Dr. Jugnundan and Dr. Azizli. The respondent states that it adopts the s.44 report prepared by Dr. Azizli and her recommendation that two hours at $149.61 per hour would be reasonable for a brief re-assessment and progress report.
30Accordingly, I do not find that the applicant has established that it is reasonable and necessary to pay a rate higher than $299.22 (2hours at $149.61 per hour) document support activity. The applicant has not submitted any evidence in support of her claim for document activity. Therefore, I do not need to respond to the respondent’s counter evidence as there is no case for the respondent to answer.
31Thus, I find that the applicant is not entitled to the remaining balance of $60.78 for the documentation.
32I find that the applicant has not established on a balance of probabilities that the remaining amount of $1,108.12 for psychological services in the treatment plan dated March 13, 2023, May 15, 2023, and October 17, 2023, is reasonable and necessary.
Was the respondent compliant with s.38(8) of the Schedule?
33The applicant also makes arguments that she is entitled to the treatment plans dated March 13, 2023, May 15, 2023, and October 17, 2023, because the denial letters dated May 3, 2023, May 16, 2023, October 18, 2023, were not compliant with s. 38 of the Schedule.
34Section 38(8) requires an insurer to inform an insured person, within ten business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. 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.
35The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires.
36The applicant states that the reasons the respondent provides in the three denial letters dated May 3, 2023, May 16, 2023, and October 18, 2023, are contrary to the provisions of section 38(3)(c) and section 38(8) and the onus placed on the applicant to prove that 1.5-hour session is unreasonable.
37The respondent submits that the denial letters are compliant with s.38(8) of the Schedule. Additionally, the respondent asserts that it provided the applicant with an explanation of her rights and limitations in regard to the accident benefits claim, pointing out her right to dispute the insurance company’s determination of her claim.
38In support of its submissions that it meets the requirements of s.38(8), the respondent relies on E.M. v. Coachman Insurance Company, 2020 CanLII 35479 (ON LAT) which states at para 14, that the respondent’s medical and any other reasons for denying a plan should include the specific details about the insured’s condition forming the basis of the respondent’s decision or alternatively, identify information about the insured’s condition that the insurer does not have but requires. I agree with the reasoning in Coachman.
39The applicant’s reliance on s.38(8) in criticizing the respondent’s benefits is unclear to me when the denial letter has to meet s.38(8). Additionally, the applicant does not elaborate why the denial letters are defective. Further, the applicant does not give any persuasive argument or evidence explaining why she claims that it is unfair that she has to prove that 1.5-hour is reasonable. When it is well established that the burden is on the applicant to prove that a treatment she seeks and all the elements she wants are reasonable and necessary.
40I find that the applicant was properly notified of the medical reasons. All the denials revealed that the respondent made multiple references to the applicant’s medical conditions, including the s.44 reports prepared by Dr. Jugnundan and Dr. Azizli. Additionally, the denial letters adopt the s.44 report prepared by Dr. Azizli and her recommendations. Thus, I find that the respondent was compliant with the s.38(8) of the Schedule because it provided reasons in its denial letters.
40Based on what I see in each of the denial letters, dated May 3, 2023, May 16, 2023, and October 18, 2023, I am persuaded that the respondent met the requirements set out in s.38(8). Accordingly, I find that the respondent’s three denial letters, dated May 3, 2023, May 16, and October 18, 2023, were compliant with s.38(8) of the Schedule.
Section 33 Non-Compliance
41The applicant submits that in a letter dated August 24, 2023, the respondent said that she was in contempt for noncompliance effective August 17, 2023. The respondent stated that no benefits were payable to the applicant during the suspension until she provided the respondent with information requested under s. 33 of the Schedule in order to complete its investigation on priority.
42The applicant submits that the respondent holding her in contempt should be construed as a bad faith adjustment of the accident claim as the disputes between the insurers regarding priority are addressed or settled under the Ontario Regulation 283/95 and the Schedule has no role in the settlement of the priority dispute between the insurers.
43The respondent asserts that it was within its statutory rights to request for the documents. Additionally, the respondent submits that the applicant has failed to provide any statutory provision or case law in support of its argument.
44The applicant raises the point of priority dispute, but she does not demonstrate why it matters, explain or provide reasons stating why she deserves the benefit she seeks. I find that the applicant has not directed me to any evidence that would lead me to construe the respondent’s action as bad faith. Therefore, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to the amount denied by the respondent in the treatment plans dated March 13, 2023, May 15, 2023, and October17, 2023.
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to any interest as there no overdue benefits.
Award
46The 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. The respondent is not liable to pay an award because it did not unreasonably withhold or delay payments to the applicant.
47Accordingly, the applicant is not entitled to an award.
ORDER
48The applicant is not entitled to $1,108.12 for psychological services, in a treatment plan dated March 13, 2023.
49The applicant is not entitled to $1,108.12 for psychological services, in a treatment plan dated May 16, 2023.
50The applicant is not entitled to $1,108.12 for psychological services, in a treatment plan dated October 17, 2023.
51The respondent is not liable to pay an award under s.10 of Reg. 664
52The applicant is not entitled to interest.
Released: April 7, 2026
Estella Muyinda
Adjudicator