Tribunal File Number: 18-010039/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits
Between:
A.S.
Applicant
and
Heartland Farm Mutual Inc.
Respondent
DECISION
Adjudicator: Avril A. Farlam, Vice Chair
Appearances:
For the Applicant: Hermina Nuric, Counsel
For the Respondent: Manmeet Kohli, Counsel
HEARD In Writing: October 28, 2019
OVERVIEW
1The applicant, [A.S.] (“applicant”), was involved in an automobile accident on January 3, 2014 (“accident”) and sought benefits from the respondent, Aviva Insurance Canada (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (“Schedule”). The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service when her claim for benefits was denied by the respondent.
2The respondent denied the applicant’s claim because it determined that the proposed treatment plans were not reasonable and necessary. The applicant’s position is the opposite.
3The cost of the medical treatment plans and the applicant’s claim for an award and interest are now before me by a hearing in writing.
ISSUES TO BE DECIDED
4As per the Tribunal Order made June 6, 2019, the issues to be decided by me are:
i. Is the applicant entitled to a medical benefit in the amount of $8,481.05 for assistive devices recommended in a treatment plan submitted on March 30, 2018 and denied by the respondent on April 12, 2018?
ii. Is the applicant entitled to a medical benefit in the amount of $238.99 for assistive devices recommended in a treatment plan submitted on June 26, 2018 and denied by the respondent on July 19, 2018?
iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
iv. Is the applicant entitled to interest on overdue payment of benefits?
RESULT
5The applicant’s appeal is not granted because she has not met her onus to prove that the treatment plans, she seeks are reasonable and necessary. In addition, the applicant is not entitled to an award or to interest.
LAW AND ANALYSIS
6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.2
7I find that the applicant has not met her onus to prove that the treatment plans she seeks are reasonable and necessary.
The Treatment Plans in Dispute
8Following the accident, the applicant reported to Dr. Sharma, general practitioner, pain in her shoulder, hip, and back.
9In an OCF-18 dated March 30, 2019, ostensibly completed by Dr. Peter DeShane, chiropractor with Balanced Care Clinic, the author recommended assistive devices totalling $8,481.05 (“first treatment plan”). The treatment plan lists pain reduction, increased range of motion, and increase in strength as goals, and a return to activities of normal living and return to pre-accident work activities as functional goals. The treatment plan consists of a mattress for $5907.00, a Herman Miller Embody chair for $1,904.05, documentation, support activity for $70.00 and TENS unit for $600.00, which the applicant submits are reasonable and necessary to assist her with managing her pain and for treatment.
10I find that the applicant is not entitled to payment of the treatment plans because she has failed to prove on a balance of probabilities that they are reasonable and necessary.
First Treatment Plan
11The records of Dr. DeShane show that the applicant was receiving treatment from him in the year prior to the accident for cervical spine tension, shoulder tension, right S.I. and neck tension. Post-accident, the applicant’s first treatment with him appears to be in November 2015, approximately 22 months after the accident.
12Although the applicant has had chiropractic treatments over a span of some five years with Dr. DeShane, his records do not suggest or recommend the use of an orthopedic mattress prior to this disputed treatment plan. This treatment plan was submitted more than four years after the accident. Dr. DeShane did not sign this treatment plan as required by section 38(3)(b) of the Schedule, raising doubt whether Dr. DeShane endorses this treatment plan.
13The treatment plan indicates “While her pain levels have reduced somewhat, [A.S.] is still experiencing significant should and hip pain while sleeping. She also experiences shoulder/neck pain and headaches when working at a desk for greater than one hour”. However, the applicant has failed to provide a medical opinion that her health complaints are related to the accident. Further, this treatment plan does not offer any persuasive explanation as to how the proposed assistive devices will achieve the goals of the treatment plan or how the expense of these particular devices is reasonable and necessary.
14The applicant relies on the records of Dr. LeBel, her orthopaedic surgeon, the records of the massage therapist at Betty Glen Therapy and the records of Jennifer Entwistle, her physiotherapist at Reactive Physiotherapy. However, none of these records recommend the assistive devices listed in the treatment plan and pre-date the treatment plan by several years.
15The applicant also relies on the recommendation of applicant’s general practitioner Dr. Sharma, who recommended the purchase of a new mattress in December 9, 2014. On March 25, 2019, Dr. Sharma confirmed in her referral to Dr. Ian Toft that the applicant was using the tempur pedic mattress for shoulder, hip and back pain and the TENS machine for shoulder pain calcific tendinosis. Although Dr. Sharma made a previous recommendation for a new mattress in 2014 there is no new recommendation or comments on the proposed treatment plan that is helpful to me in her 2019 records. I attribute little weight to Dr. Sharma’s records because they do not assist me in assessing the treatment plan. I find that the notes of Dr. Sharma are insufficient to prove that the applicant’s treatment plan is reasonable and necessary.
Applicant’s Attempt to Introduce Additional Evidence re First Treatment Plan
16The Tribunal’s amended Order made June 6, 2019 referring the issues in this written hearing to me provided that, on consent, that the applicant’s submissions and evidence were to be served and filed by September 30, 2019. Paragraph four of the same Order provided that “No additional or new evidence may be submitted for use at the hearing,” subject to the discretion of the hearing adjudicator. In her reply submissions dated October 21, 2019, the applicant submitted a report from Dr. Albert Cheng dated September 11, 2018, an OCF-18 treatment and assessment plan of Dr. Sharma dated September 29, 2017, and a letter from the respondent re denial of September 29, 2017 OCF-18 of Dr. Sharma dated March 5, 2018. In her reply submissions, the applicant says Dr. Cheng’s report was included with the applicant’s application so the respondent is not prejudiced by the late filing of it in this hearing, raises new issues about whether the respondent failed to comply with its obligation to respond to the OCF-18 of Dr. Sharma and whether the denial complies with section 38(8) of the Schedule, and gives an explanation of why the decoded OHIP summary was not provided within the time limit set out in the Tribunal’s amended Order of June 6, 2019. The applicant does not give any explanation of why Dr. Cheng’s report was not delivered within the time limit set in the Tribunal’s Order.
17The respondent objects to the introduction of this new evidence on the basis that the applicant is attempting to circumvent the Tribunal’s Order beyond the deadline, objects on the basis of procedural fairness and says it is prejudiced in its ability to reply.
18The Tribunal’s Order was made on consent at the case conference. The Order defined the issues for the written hearing and set out deadlines for the submissions and evidence at the written hearing. Pursuant to paragraph four of the amended Order dated June 6, 2019 both parties were on notice that “No additional or new evidence may be submitted for use at the hearing.” The Tribunal’s Order set the procedural ground rules for the hearing. The dates on the material at tabs 2-4 of applicant’s reply submissions show that this evidence existed at the time of the Tribunal’s Order. Had the applicant wanted to introduce it at this hearing, she only had to attach it to her original submission. The respondent would have no way of knowing the applicant intended to rely on this evidence at the hearing even though it may have been aware of the existence of this evidence if it was not submitted into evidence in accordance with the Tribunal’s Order. The applicant has not given any good reason why she should now be allowed to submit evidence beyond the ordered deadline or why she should now be allowed to advance arguments outside the scope of the issues referred to me. The applicant could have sought an Order from the Tribunal to permit the late filing of this evidence before this hearing was held but did not do so. I find the respondent was prejudiced in its ability to reply by the late filing of this evidence. Therefore, I will not consider the additional evidence included in tabs 2-4 of the applicant’s reply submissions or the reply submissions of the respondent except as both relate to this procedural ruling. Upon a cursory review of the additional evidence included in tabs 2-4 of the applicant’s reply submissions, I have concluded that had it had been considered, it would not have changed my decision.
Second “Treatment” Plan
19Although referred to as a “treatment plan” in this hearing, it appears from the evidence and submissions of both parties that the applicant claims expenses in the amount of $238.99 submitted on June 26, 2018 which the applicant submits has increased to $506.23 (minus anything the insurer may have paid) for cost of medication and pain relief gels. The applicant has failed to provide a medical opinion that these costs are related to the accident and will achieve any treatment objective.
20I find that the applicant has failed to provide sufficient medical evidence to prove that both treatment plans are reasonable and necessary.
Award
21The applicant claims an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits.
22Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.
23As no payment for treatment plans is ordered, the respondent has not unreasonably withheld or delayed the payment of benefits. Therefore, there will be no award under Ontario Regulation 664.
Interest
24Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue treatment plan payments, no interest is payable.
CONCLUSION
25For the reasons outlined above, I find that:
i. The applicant has not met her onus to prove that the treatment plans she seeks are reasonable and necessary.
ii. The applicant is not entitled to an award or interest.
iii. The applicant’s claim is dismissed.
Released: April 2, 2020
_____________________
Avril A. Farlam
Vice Chair
Footnotes
- O.Reg. 34/10
- Scarlett v. Belair, 2015 ONSC 3635.