S.S. v. Wawanesa Mutual Insurance Company, 2019 CanLII 76965

Tribunal File Number: 18-005725/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:

S.S.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Tracy Austin, Counsel

For the Respondent:

James Schmidt, Counsel

HEARD IN WRITING:

February 15, 2019

OVERVIEW

1The applicant, ("S.S."), was injured in a rear-end automobile accident on July 8, 2014 (the "accident") and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule") from Wawanesa Mutual Insurance Company ("Wawanesa"), the respondent.

2Wawanesa denied S.S.'s claim for attendance care benefits ("ACBs") and a treatment plan for assistive devices. Wawanesa also partially denied S.S.'s treatment plan for physiotherapy services. As a result, S.S. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

3The parties were unable to resolve the issues in dispute at the September 26, 2018 case conference and a written hearing was scheduled for February 15, 2019 in this matter.

ISSUES IN DISPUTE

4On February 1, 2019, S.S. withdrew her claim for ACBs. As such, the following remaining issues are to be decided:

(i) Is S.S. entitled to a medical benefit in the amount of $600.25 for assistive devices recommended by Lena John in a treatment plan submitted on July 28, 2016, and denied by Wawanesa on August 4, 2016?

(ii) Is S.S. entitled to a medical benefit in the amount of $2,152.51¹ (representing the unpaid portion of the initial amount of $3,040.64) for physiotherapy services recommended by Dr. Ahmed Seksek of Gonzalez Seksek in a treatment plan submitted on May 2, 2017, and denied by Wawanesa on May 9, 2017?

(iii) Is S.S. entitled to interest on any overdue payment of benefits?

(iv) Is S.S. entitled to an award under Ontario Regulation 664 because Wawanesa unreasonably withheld or delayed the payment of benefits?

RESULT

5I find that S.S. is not entitled to the treatment plans in dispute as she has failed to prove on a balance of probabilities that they are reasonable and necessary. S.S. is also not entitled to interest or an award and the application is dismissed.

PROCEDURAL ISSUE – EXCLUSION OF EVIDENCE

6As part of its submissions, Wawanesa has asked the Tribunal to exclude as evidence from the hearing settlement details found at tabs 25 and 26 of S.S.'s document brief on the basis that these were "without prejudice" discussions between counsel.

7As I have found that there are no benefits owing, I am not required to make a finding on this procedural issue because there is no basis upon which to consider S.S.'s entitlement to an award. Consequently, there is no reason to exclude the evidences as requested by Wawanesa because there is no need to consider the material at tabs 25 and 26 of S.S.'s documents to determine S.S.'s entitlement to the treatment plans in dispute.

ANALYSIS

8Sections 14 and 15 of the Schedule provide that the insurer shall pay for medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

9S.S. bears the onus of proving her entitlement to the claimed assistive devices and physiotherapy services are both reasonable and necessary on a balance of probabilities.² For the following reasons, I find that S.S. has failed to meet her onus for both treatment plans in dispute.

Medical Benefit: Assistive Devices

10S.S. did not submit in her evidence for the hearing the treatment and assessment plan (OCF-18) for assistive devices recommended by Lena John despite referring to this OCF-18 in her submissions.

11In the Tribunal's Reconsideration Decision of J.R. v. Certas Home and Insurance Company,³ Executive Chair Lamoureux highlighted the obligation of the Tribunal to ask parties to submit information that it believes a party meant to rely upon as evidence. Pursuant to the principals set out in that decision, I ordered the parties make written submissions on whether or not I should allow S.S. to submit the missing OCF-18 as evidence in this hearing on or by July 2, 2019. I also requested a copy of the missing OCF-18 to avoid any further delay in this matter.

12Neither party made any written submissions nor submitted the missing OCF-18. The Tribunal verbally confirmed with both parties that they had not made any submissions as well.

13I agree with Executive Chair Lamoureux's statement in J.R. v. Certas, "Just as an insurer reviews a complete OCF-18 in order to properly decide whether to fund the insured's request, the Tribunal generally requires the same document in order to properly understand both the insured's request and the insurer's response. Put simply, the Tribunal cannot fairly adjudicate an application in most cases without a complete copy of the very document giving rise to the parties' dispute."⁴

14I find that this is a case where I cannot fairly adjudicate S.S.'s application regarding her claim for assistive devices because I do not know what the goals of the treatment plan are and, subsequently, I cannot determine if the goals are reasonable. In completing the OCF-18, Lena John would have been asked to identify the goals of the proposed devices, how the devices would have achieved these goals and how the identified goals would be evaluated. It also appears as though this OCF-18 was partially approved but I cannot confirm which items were approved and which were not outside of submissions from the parties.

15I find that S.S.'s failure to submit the OCF-18 both in her initial submissions and following my June 17, 2019 Order has deprived me of the ability to fully and properly assess the reasonableness and necessity of the disputed treatment plan for assistive devices and, accordingly, I find that S.S. has not met her onus of proving the treatment plan is reasonable and necessary on a balance of probabilities.

Medical Benefit: Physiotherapy Services

16The May 2, 2017 treatment plan by Dr. Ahmed Seksek, chiropractor, was not for physiotherapy. Instead, it sought funding for three 1-hour total body kinesiology assessments, 11 exercise sessions (multiple body sites) with a kinesiologist, the kinesiologist's travel time to the assessment and to the gym, and the cost of a 1-year membership at a community-based gym. The goals of the treatment plan were pain reduction, increased range of motion and strength and a return to activities of normal living. Dr. Seksek also noted an initiation of patient's transfer into community-based gym under close supervision of a qualified occupational therapist to assure compliance with exercise protocol and to prevent injury. There were no additional attachments to this treatment plan.

17On May 9, 2017, Wawanesa agreed to fund the 1-year gym membership and denied the remainder of the treatment plan on the basis that previous s. 44 assessments recommended, "that you would benefit from involvement in an appropriately-supervised, community-based reconditioning exercise program."⁵ Wawanesa maintained that S.S.'s request for 11 sessions with a kinesiologist, including travel time, was excessive and stated, "five sessions with a personal trainer should educate you on how to complete reconditioning exercises."⁶ Wawanesa also served notice for an in-person s. 44 examination on S.S. at this time.

18On June 20, 2017, Wawanesa confirmed its approval of the cost of the gym membership and the cost to complete the OCF-18 form, and it also approved the cost of 12 personal training sessions. These additional approvals were based on a paper review after S.S. objected to a second in-person assessment as a previous assessment with the same medical professional had been conducted less than one year prior. Wawanesa also confirmed its denial of the remainder of the treatment plan, which included a kinesiology assessment, kinesiologist travel time, and 11 exercise sessions with a kinesiologist, at this time.

19Wawanesa's June 20, 2017 correspondence enclosed the June 15, 2017 IE Physiatry Paper Assessment Report by Dr. John Clifford, physiatrist. In his report, Dr. Clifford outlined which portions of the OCF-18 he determined to be reasonable and necessary and recommended 12 sessions with a personal fitness trainer who is associated with the community gym for S.S.'s orientation to exercise and design an independent exercise program that she can complete on her own, in between sessions with the trainer.

20S.S. obtained her gym membership on August 15, 2017 and attended 5 times between September 5, 2017 and May 29, 2018.⁷ S.S. submits that her minimal attendance at the gym is evidence that she could not manage without a kinesiology assessment and that a service provider already based at the gym, so as to avoid travel costs, was not appropriate for her. S.S. argues that it is clear that she requires constant supervision in Arabic. The difficulty that I have in placing weight on this argument is that there is no evidence as to why S.S. only attended the gym on 5 occasions before me. Furthermore, the only gym records provided to me where S.S.'s attendance – there is no evidence whether or not S.S was receiving supervision from the gym while she was in attendance. Furthermore, no funding was sought for interpretation services on the OCF-18.

21I have also not considered the September 20, 2018 psychological intervention progress report by Dr. Jacqueline McKinnon, psychologist, submitted by S.S. I agree with Wawanesa that this report was not in existence at the time when the OCF-18 was submitted for consideration as it was authored well over a year later. Furthermore, the purpose of the report was to summarize S.S.'s treatment between May 29, 2018 and September 4, 2018 and to provide recommendations for future treatment. Therefore, I give it no weight in assessing the reasonableness and necessity of the treatment plan. Even if I am incorrect in not giving any weight to it, the report does not assist me in determining the reasonableness and necessity of the treatment plan in dispute as although it does speak to S.S.'s need for guidance in establishing a gym routine, it does not opine that the professional providing this guidance should be a kinesiologist and it does not refer to or recommend a kinesiology assessment.

22I find that S.S. has not submitted any supporting medical documentation as to the reasonableness or necessity of a kinesiology assessment or the involvement of a kinesiologist. The evidence submitted by S.S. only supports a supervised, community-based reconditioning exercise program with accompanying education.⁸ There is no recommendation for who undertakes this supervision. Based on all of the above reasons, I find that S.S. has not met her onus of proving the treatment plan is reasonable and necessary on a balance of probabilities.

INTEREST

23Because I have found that there are no benefits or costs that are overdue, no interest is payable.

AWARD

24Section 10 of Ontario Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

25As I have found in that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.

CONCLUSION

26For the reasons outlined above, I find:

(i) S.S. is not entitled to the treatment plan for assistive devices or the May 2, 2017 treatment plan because she has failed to prove that they are reasonable and necessary on a balance of probabilities;

(ii) S.S. is not entitled to an interest or an award; and

(iii) The application is dismissed.

Footnotes

1. 1In its submissions, Wawanesa submits that the unpaid portion of this treatment plan in dispute is $2,153.13. However, its explanation of benefits dated June 20, 2017 provides that the amount payable was $887.49 of the total claimed of $3,040.00. Therefore, the correct amount in dispute is $2,152.51.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, paras. 20-24.
3. 32018 CanLII 13161 (ON LAT) ("J.R. v. Certas").
4. 4Ibid. at para. 21.
5. 5Correspondence to S.S. from Wawanesa dated May 9, 2017, Tribunal Brief of the Applicant, tab 20.
6. 6Ibid.
7. 7Tribunal Brief of the Applicant, tab 24.
8. 8Dr. Clifford's June 22, 2016 IE Physiatry Assessment Report, Tribunal Brief of the Applicant, tab 22, and Occupational Therapy In-Home Assessment Report dated May 4, 2016, by Ms. Lina John, occupational therapist, Tribunal Brief of the Applicant, tab 13.