Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal File Number: 17-007816/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:

Estate of S.K.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

For the Applicant: Ryan O’Connor, Lawyer For the Respondent: Michelle Friedman, Lawyer

Written Hearing: February 11, 2019

OVERVIEW

1The applicant, now deceased was a pedestrian injured in an automobile accident (“the accident”) on April 2, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) when his claims for medical benefits were denied by the respondent.

2The applicant was born in 1977. He was crossing the road at an intersection when he was struck by a vehicle. He became unconscious and was taken to the hospital. His sustained significant injuries included: right subdural hematoma, scattered subarachnoid hemorrhage, right parietal skull fracture and right parietal epidural hematoma, right medial and lateral tibia plateau fracture, and extensive ligamentous injury to the right knee.

3The applicant was declared catastrophically impaired by the respondent on October 9, 2015. An Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act (“application”) was filed by the applicant on November 10, 2017. The applicant passed away in February 21, 2018.

4The respondent has submitted that to date they have not received confirmation as to whether the disputed treatment plans had been incurred prior to the applicant becoming deceased. There were no final reply submissions received from counsel on behalf of the applicant’s Estate.

ISSUES

5The disputed claims in this hearing are:

(i) Is the applicant entitled to a medical benefit in the amount of $3,731.05 for case management services recommended by Dr. A. Inderneet, submitted December 3, 2015?

(ii) Is the applicant entitled to a medical benefit in the amount of $1,271.70 for occupational therapy services, submitted July 7, 2016 and denied by the respondent July 11, 2016?

(iii) Is the applicant entitled to a medical benefit in the amount of $128.66 for medication, submitted December 7, 2016?

(iv) Is the applicant entitled to a medical benefit in the amount of $4,335.75 for chiropractic services, submitted December 1, 2016, denied by the respondent December 14, 2016?

(v) Is the applicant entitled to a medical benefit in the amount of $5,585.75 for physiotherapy services, submitted December 29, 2016, denied by the respondent January 30, 2017?

(vi) Is the applicant entitled to a medical benefit in the amount of $4,465.75 for physiotherapy services, submitted April 8, 2017, denied by the respondent April 11, 2017?

(vii) Is the applicant entitled to a medical benefit in the amount of $670.00 for custom orthotics, submitted April 13, 2017?

(viii) Is the applicant entitled to a medical benefit in the amount of $95.81 for medication, submitted July 26, 2017?

(ix) Is the applicant entitled to a medical benefit in the amount of $4,465.75 for physiotherapy services, submitted July 5, 2017 and denied by the respondent?

(x) Is the applicant entitled to a medical benefit in the amount of $9,138.11 for case management services recommended by Gibson Wellness Centre, submitted September 28, 2017 and denied by the respondent October 4, 2017?

(xi) Is the applicant entitled to a rehabilitation benefit in the amount of $14,217.99 for rehabilitation services, submitted by Gibson Wellness Centre on September 28, 2018 and denied by the respondent October 4, 2017?

(xii) Is the applicant entitled to a medical benefit in the amount of $5,103.40 for chiropractic services, submitted by Gibson Wellness Centre on September 28, 2017 and denied by the respondent October 2, 2017?

(xiii) Is the applicant entitled to a medical benefit in the amount of $74.91 for optometric services, submitted October 12, 2017?

(xiv) Is the applicant entitled to receive payment for the cost of an examination in the amount of $2,000.00 for an in-home assessment, submitted by Gibson Wellness on September 28, 2017, and denied by the respondent on October 2, 2017?

(xv) Is the applicant entitled to interest on any overdue payment of benefits?

(xvi) Is the respondent entitled to costs claimed in the amount of $2,000.00?

RESULT

6Based on the evidence before me, I find that:

(i) The medical benefit for case management services in the amount of $3,731.05, submitted December 3, 2015 is not properly before the Tribunal. The respondent approved this treatment plan on December 15, 2015.

(ii) The applicant is not entitled to the medical benefit in the amount of $1,271.70 for occupational therapy services, submitted July 7, 2016.

(iii) The medical benefit in the amount of $128.66 for medication, submitted December 7, 2016 is not properly before the Tribunal as it was paid for by the respondent on December 22, 2016.

(iv) The applicant is not entitled to a medical benefit in the amount of $4,335.75 for chiropractic services, submitted December 1, 2016.

(v) The applicant is not entitled to a medical benefit in the amount of $5,585.75 for physiotherapy services, submitted December 29, 2016.

(vi) The applicant is not entitled to a medical benefit in the amount of $4,465.75 physiotherapy services, submitted April 8, 2017.

(vii) The medical benefit in the amount of $670.00 for orthotics is not properly before the Tribunal as this expense was paid for by the respondent on May 2, 2017.

(viii) The medical benefit in the amount of $95.81for medication is not properly before the Tribunal as it was paid for by the respondent on August 30, 2017.

(ix) The applicant is not entitled to a medical benefit in the amount of $4,465.75 for physiotherapy services, submitted July 5, 2017.

(x) The applicant is not entitled to a medical benefit in the amount of $9,138.11 for case management services submitted September 28, 2017.

(xi) The applicant is not entitled to a rehabilitation benefit in the amount of $14,217.99 for rehabilitation services submitted September 28, 2017.

(xii) The applicant is not entitled to a medical benefit in the amount of $5,103.40 for chiropractic services, submitted September 28, 2017.

(xiii) The applicant is not entitled to a medical benefit in the amount of $74.91 for optometric services submitted October 12, 2017

(xiv) The applicant is not entitled to payment for the cost of an examination in the amount of $2,000.00 for an-home assessment submitted September 28, 2017.

(xv) The applicant is not entitled to interest on any overdue payment of benefits.

(xvi) The respondent is not entitled to costs claimed in the amount of $2,000.00.

ANALYSIS

The Law

7Section 14 of the Schedule stipulates an insurer is liable to pay benefits to, or on behalf of an insured person who sustains an impairment as a result of an accident. Section 15 of the Schedule stipulates in relation to medical benefits that an insurer shall pay for all reasonable and necessary expenses incurred by, or on behalf of the insured person as a result of the accident. Section 16 of the Schedule stipulates in relation to rehabilitation benefits that an insurer shall pay for all reasonable and necessary expenses incurred by, or on behalf of the insured person for the purpose of reducing or eliminating the effects of any disability or to facilitate the person’s reintegration into his or her family, the rest of society, or the labour market.

8An applicant is precluded from applying to the Tribunal pursuant to Section 55(2) of the Schedule if the insurer has provided the insured with notice in accordance with the Schedule advising the insured is required to attend a section 44 insurer’s examination (“IE”) but the insured has not complied with this request.

Are the Treatment Plans (OCF-18s) Reasonable and Necessary?

9The applicant has not provided confirmation that any of the treatment plans in dispute have been incurred. The medical evidenced produced by the applicant for this hearing included:

(a) Clinical notes and records (“CNRs”) for Toronto Rehabilitation Institute dated April 10, 2015 which noted right side cerebral and orthopedic injuries sustained shortly after the accident;

(b) Progress note from Sunnybrook Health Sciences Centre dated February 2, 2016 which addressed the applicant’s 3 month post-surgical recovery for his right knee and noted the applicant reported concern with his shoulder;

(c) Operative report from Sunnybrook Health Sciences Centre dated May 2, 2017 which addressed a further surgical procedure performed on the applicant’s right knee;

(d) Progress note from Sunnybrook Health Sciences Centre dated May 8, 2017 which noted the applicant reported pain in his right knee since the surgery. X-rays were taken and the results were normal and;

(e) Progress note from Sunnybrook Health Sciences Centre dated July 17, 2017 which noted complaints about his right knee giving out and surgery on the applicant’s anterior cruciate ligament (“ACL”) was discussed.

10I find the applicant is not entitled to the following benefits and have included my reasons below for each disputed benefit:

(i) The medical benefit in the amount of $3,731.05 for case management services is not properly before the Tribunal as this treatment plan was previously approved by the respondent as evidenced by an Explanation of Benefits (“EOB”) dated December 15, 2015.

(ii) The medical benefit in the amount of $1,271.70 for occupational therapy services, submitted July 7, 2016 is not reasonable and necessary. A copy of this treatment plan was produced by the respondent. The treatment plan does not explain how the proposed goods and services will meet the goals, and address any barriers to recovery identified in the treatment plan. The treatment plan was denied by the respondent through an EOB dated July 11, 2016 for the following reason: the respondent was unable to determine what services were being provided by the occupational therapist. The respondent requested the treatment plan be revised and re-submitted. The applicant conceded in their submissions what was noted within the EOB and provided no further submissions with respect to this treatment plan. Based on this evidence before me, I do not find this treatment plan is reasonable and necessary and therefore the applicant is not entitled to this treatment plan.

(iii) I find the medical benefit in the amount of $128.66, submitted December 7, 2016 for prescriptions is not properly before the Tribunal as the respondent submitted they paid the applicant by cheque this amount on December 22, 2016 and provided a cheque number. I accept the respondent’s submission that this claim has been paid as no further reply was received from the applicant and they were provided the opportunity to do so.

(iv) The medical benefit in the amount of $4,335.75 for chiropractic services, submitted December 1, 2016 is not reasonable and necessary. This treatment plan was denied by the respondent by EOB dated December 14, 2016 pending an IE. The applicant provided no submission to support this treatment plan is reasonable and necessary. I do not find the medical evidence helpful to determine if the treatment plan is reasonable and necessary as the dates reflected on the medical evidence are not close to when this treatment plan was submitted. The respondent denied this treatment plan based on their IE report dated January 30, 2017 by Dr. D. Lipson, physiatrist which concluded the treatment plan was not reasonable and necessary.. The report noted there were reliability issues based on inconsistencies with what the applicant reported and on the findings from the examination of the applicant. Dr. Lipson concluded the applicant would likely not benefit from further passive treatment and the treatment plan did not identify if some of the proposed treatment was for active treatment. No competing medical evidence was produced by the applicant in response to Dr. Lipson’s IE report to address the opinions provided by Dr. Lipson and a copy of this treatment plan was not produced for the hearing. The onus is on the applicant to prove entitlement to benefits and I do not find the applicant has done so with respect to this treatment plan. The applicant is not entitled to this treatment plan.

(v) The medical benefit in the amount of $5,585.75 for physiotherapy services, submitted December 29, 2016 is not reasonable and necessary. This OCF-18 was denied by the respondent by an EOB dated January 30, 2017 pending an IE. An IE paper review was done by Dr. Lipson and a report dated February 14, 2017 was issued. Dr. Lipson concluded the treatment plan was not reasonable and necessary and relied on the same reasoning as noted in his prior report that the applicant would not likely benefit from further passive treatment. The applicant provided no submissions in support that this treatment plan is reasonable and necessary, nor does the documentary evidence support this treatment plan is reasonable and necessary, and a copy of this treatment plan was not produced for this hearing. The applicant has not met their onus of proof and I therefore find the applicant is not entitled to this treatment plan.

(vi) The applicant is not entitled to a medical benefit in the amount of $4,465.75 for physiotherapy services, submitted April 8, 2017. It was denied by the respondent through an EOB dated April 11, 2017 and their denial was based on the findings noted within Dr. Lipson’s January 30, 2017 report. A copy of this treatment plan was not produced for this hearing. The applicant made no submissions, and provided no documentary evidence which supports this treatment plan was reasonable and necessary and has not met their onus of proof. Therefore, the applicant is not entitled to this treatment plan.

(vii) The medical benefit in the amount of $670.00 for custom orthotics is not properly before the Tribunal as the respondent submitted they paid for this on May 2, 2017 and a cheque number was provided. I accept the respondent’s submission that this claim has been paid as there has been no further reply from the applicant.

(viii) The medical benefit in the amount of $95.81 is not properly before the Tribunal. The respondent submitted these expenses were for prescriptions and hospital parking and were paid for by the respondent on August 30, 2017 and a cheque number was provided. I accept the respondent’s submission that this claim has been paid as there has been no further reply from the applicant.

(ix) The applicant is not entitled to a medical benefit in the amount of $4,465.75 for physiotherapy services, submitted July 5, 2017 as it is found to be not reasonable and necessary. A copy of this treatment plan was not produced for this hearing. The applicant has not made any submissions or produced evidence which supports this treatment plan is reasonable and necessary. The respondent denied this treatment plan by EOB dated July 28, 2017 and their denial was based on the IE report of Dr. Lipson dated January 30, 2017. Therefore, the applicant is not entitled to this treatment plan.

(x) The applicant is not entitled to a medical benefit in the amount of $9,138.11 submitted September 28, 2017. This treatment plan was denied by the respondent through an EOB dated October 4, 2017. The reason for the denial is the applicant was in non-compliance with section 44 of the Schedule by failing to attend an IE to assess this benefit. The applicant submitted that the respondent failed to provide a valid reason why the applicant is non-compliant. There has been no explanation provided in the applicant’s submissions as to why the applicant did not the IE. I find the applicant’s failure to attend an IE as required under section 44 of the Schedule precludes the applicant from applying to the Tribunal to claim entitlement to this benefit pursuant to section 55(2) of the Schedule. Therefore, the applicant is not entitled to this benefit.

(xi) The applicant is not entitled to a rehabilitation benefit in the amount of $14,217.99 for rehabilitation support, submitted September 28, 2017. This treatment plan was denied by an EOB dated October 4, 2017. The reason for the denial is the applicant was in non-compliance with section 44 of the Schedule by failing to attend an IE to assess this benefit. The applicant submitted that the respondent failed to provide a valid reason why the applicant is non-compliant. There has been no explanation provided in the applicant’s submissions as to why the applicant did not the IE. I find the applicant’s failure to attend an IE as required under section 44 of the Schedule precludes the applicant from applying to the Tribunal to claim entitlement to this benefit pursuant to section 55(2) of the Schedule. Therefore, the applicant is not entitled to this benefit.

(xii) The applicant is not entitled to a medical benefit in the amount of $5,103.40 for chiropractic services, submitted September 28, 2017. This treatment plan was denied by an EOB dated October 2, 2017. The reason for the denial is the applicant was in non-compliance with section 44 of the Schedule by failing to attend an IE to assess this benefit. The applicant submitted that the respondent failed to provide a valid reason why the applicant is non-compliant. There has been no explanation provided in the applicant’s submissions as to why the applicant did not the IE. I find the applicant’s failure to attend an IE as required under section 44 of the Schedule precludes the applicant from applying to the Tribunal to claim entitlement to this benefit pursuant to section 55(2) of the Schedule. Therefore, the applicant is not entitled to this benefit.

(xiii) The applicant is not entitled to a medical benefit in the amount of $74.91 for optometric services, submitted October 12, 2017. The respondent submitted they were unable to locate a response to this claim which was conceded to by the applicant. The claim was submitted on an Expense Claim Form (“OCF-6”) dated October 2, 2017 but no evidence has been produced that the expense was incurred by the applicant. However, pursuant to section 3(e) (i) (ii) of the Schedule an expense is not incurred by an insured person unless the insured person received the goods and services to which the expense relates. Further, the insured person had to pay the expense, or promised to pay the expense, or is otherwise legally obligated to pay the expense. The applicant has not submitted that this expense was incurred; therefore I find it is not payable.

(xiv) The cost of an examination in the amount of $2,000.00 for an in-home assessment submitted on September 28, 2017 was claimed in the applicant’s submissions but this issue was not noted as an issue in dispute on the order of adjudicator Driesel dated November 21, 2018. Through its submissions, the respondent did not consent to adding this issue. However, the respondent did provide submissions regarding their denial of this benefit and this issue was noted on the application filed with the Tribunal dated November 10, 2017. I have added this issue to this hearing as it has been denied by the respondent, it was included in the application to the Tribunal. I rely on Rule 3.1 of the Tribunal’s Common Rules of Practice and Procedure (“Tribunal’s Rules”). The EOB dated October 2, 2017 noted the applicant was in non-compliance as the applicant had not complied with section 44 of the Schedule by his failure to attend an IE to assess this benefit. The applicant submitted that the respondent failed to provide a valid reason why the applicant is non-compliant. There has been no explanation provided in the applicant’s submissions as to why the applicant did not the IE. I find the applicant’s failure to attend an IE as required under section 44 of the Schedule precludes the applicant from applying to the Tribunal to claim entitlement to this benefit pursuant to section 55(2) of the Schedule. Therefore, the applicant is not entitled to this benefit.

(xv) As no benefits are payable, there is no interest owing.

(xvi) The respondent’s request for costs in the amount of $2,000.00 is dismissed. The respondent has requested costs in its submissions and noted the applicant’s claim as not been particularized to confirm what treatment has been incurred. It is the respondent’s submission that this has been frivolous, vexatious, and amounts to an abuse of process which has prejudiced the respondent. The respondent further submitted they have incurred costs to attend three separate case conferences, the associated costs of pursuing the particulars of the claim, and the costs of preparing the written submissions for this hearing. The respondent submitted a maximum amount of costs awardable for a two day period would be appropriate and has requested costs in the amount of $2,000.00. I do not find the applicant’s lack of particularization regarding the amounts claimed to be frivolous or vexatious and rises to the level in which a cost award would be granted against the applicant’s estate. The applicant passed away during the dispute resolution process which was commenced before the Tribunal. This appears to have caused some delay, necessitating further case conference resumptions.

11The applicant submitted jurisprudence supporting that treatment plans can be reasonable and necessary on the basis that the goal is to minimize pain, increase strength, and functional restoration². I find the case before me to be distinguishable as the adjudicator in that case found treatment plans to be reasonable and necessary based upon the adjudicator reviewing the treatment plans and comparing the goals with what the IE assessors’ conclusions. With the exception of the occupational therapy treatment plan, I was not provided with the disputed treatment plans to be able to review the goals and the proposed treatment. If treatment is denied but it has been incurred, the treatment is payable pursuant to section 38 (11) of the Schedule.³ I do not find this case to be on point as the case before me did not address any arguments from the applicant regarding section 38 (11) of the Schedule and it was not established that the disputed treatment plans were incurred.

CONCLUSION

12For the reasons outlined above:

(i) The applicant’s claim is dismissed.

(ii) The respondent’s request for costs is dismissed.

Footnotes

1. 1O. Reg. 34/10
2. 2Applicant and Aviva Insurance Canada, 17-005961, 2018 CanLII 110921(ONLAT), August 10, 2018
3. 3Applicant and RBC Insurance Company, 17-006851, 2018 CanLII 83514 (ONLAT), June 8, 2018