Citation: A.S. v. Heartland Farm Mutual Inc., 2020 ONLAT 18-010039/AABS
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 Insurance Company
Respondent
AMENDED DECISION
Adjudicator: Avril A. Farlam, Vice Chair
Appearances:
For the Applicant: Hermina Nuric, Counsel
For the Respondent: Manmeet (Mini) Kohli, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant, [A.S.] (“applicant”), was involved in an automobile accident on January 3, 2014 (“accident”) and sought benefits from the respondent, Heartland Farm Mutual Insurance Company (“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