J.B. v. Motor Vehicle Accident Claims Fund (MVACF), 2020 CanLII 37666

Licence Appeal Tribunal

Citation: J.B. vs. Motor Vehicle Accident Claims Fund (MVACF), 2020 ONLAT 19-003638/AABS

Released Date: 05/11/2020

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:

[J.B.]

Applicant

and

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Cezary Paluch

APPEARANCES:

For the Applicant:

Leila Brian, Counsel

For the Respondent:

Andrew Choi, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, J.B., was involved in an automobile accident on December 28, 2016¹ and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The applicant was denied certain benefits by the respondent, Motor Vehicles Accidents Claims Fund (the “Fund”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2The parties participated in a case conference on August 13, 2018 but were not able to resolve the issues in dispute and the matter proceeded to a written hearing.

ISSUES TO BE DECIDED

3The following are the issues to be decided:

i. Is the applicant entitled to attendant care benefits in the amount of $1,424.25 per month for the period of December 28, 2016 to March 1, 2017?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,213.70 for physiotherapy treatment, recommended by Anna Victoria Markell, PT (Revive Health Services) in a treatment plan submitted March 27, 2017, and denied by the respondent on April 3, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $1,831.44 for physiotherapy treatment, recommended by Anna Victoria Markell, PT (Revive Health Services) in a treatment plan submitted October 5, 2017, and denied by the respondent on October 13, 2017?

iv. Is the applicant entitled to receive a medical benefit in the amount of $2,023.60 for physiotherapy treatment, recommended by Anna Victoria Markell, PT (Revive Health Services) in a treatment plan submitted January 9, 2018 and denied by the respondent on February 12, 2018?

v. Is the applicant entitled to receive a medical benefit in the amount of $1,524.75 for a gym membership and personal trainer, recommended by Lani Jane Legaspi (Network health Assessments and Rehabilitation) in a treatment plan submitted March 2, 2018, and denied by the respondent on March 13, 2018?

vi. Is the applicant entitled to receive a medical benefit in the amount of $1,740.93 for physiotherapy treatment, recommended by Jaspreet Otal, PT (Revive Health Centre) in a treatment plan submitted May 23, 2018, and denied by the respondent on June 21, 2018?

vii. Is the applicant entitled to receive a medical benefit in the amount of $1,632.86 for physiotherapy treatment, recommended by Samiksha Chawda, PT (Revive Health Centre) in a treatment plan submitted October 2, 2018, and denied by the respondent on October 4, 2018?

RESULT

4I find on the evidence that J.B. is not entitled to attendant care for the period in dispute as she has not demonstrated that her expenses were incurred and did not submit a Form 1 in accordance with the Schedule. No interest is payable on this benefit.

5J.B. is entitled to the remaining partial amounts for the two physiotherapy treatment plans in the amount of $1,213.70 (issue ii) and $1,831.44 (issue iii), and one other treatment plan for physiotherapy in the amount of $1,632.86 (issue vii), as those plans are reasonable and necessary. The applicant may incur this treatment and the respondent is liable to pay for the incurred treatment.

6The applicant is not entitled to the three other remaining treatment plans in dispute for physiotherapy/gym membership in the amounts of $2,023.60 (issue iv), $1,524.75 (issue v) and $1,740.93 (issue vi) as they are not reasonable and necessary.

ANALYSIS

i) Attendant Care Benefits (ACBs)

7I find the applicant is not entitled to attendant care for the period in dispute. She has not demonstrated that her expenses were incurred. As well, she submitted her Form 1 after the period for which she seeks the benefit.

Incurred – s. 3(7)(e)

8Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses “incurred” by or on behalf of an insured person as a result of an accident for services provided by an aide or attendant.

9Section 3(7)(e) sets out the definition of “incurred.” It states that an expense is not “incurred” unless:

(i) the insured person has received the goods or services to which the expenses relates,

(ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and

(iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person

10Furthermore, s. 3(8) states that, if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

11The applicant’s submissions on this issue are brief. There is no affidavit² or statement from the applicant (or any service provider) to confirm the actual name of the service provider, the care provided, or the period during which the care was provided. There is no evidence before me of any invoices, or other such proof or particulars, that the applicant paid for these services or to suggest that the applicant is otherwise legally obligated to pay for them. As such, I am simply unable to determine what care was provided, when it was provided, and by whom.

12The applicant merely submits in one sentence that she stayed at her aunt’s house and her father’s house as her partner worked and she needed both physical and emotional support. It is not clear for what period of time this happened. Assuming that he her aunt of father were the care providers; the applicant is only entitled to an attendant care benefit if she can show that her aunt or father sustained an economic loss in providing her this service. If no such loss was sustained, no ACBs are payable, even if the family member provided the care in the course of her or his employment, occupation or profession. An “economic loss” remains a factual determination. The onus is on the applicant to demonstrate this economic loss. She has not done so. There simply is no proof of “economic loss.” Accordingly, this part of the test is also not met.

13Therefore, I find the applicant is not entitled to ACBs for the period in dispute because she has not demonstrated that her expenses were incurred.

14For completion, if I am wrong that ACBs were not incurred, I also find that the applicant’s Form 1 was not submitted in compliance with the procedures outlined in s. 42, which I discuss next.

Before Assessment of Attendant Care Needs – s. 42(5)

15The procedures to claim ACBs are found in s. 42, including that an “assessment of attendant care needs” and associated “Assessment of Attendant Care Needs - Form 1” must be used. Section 42(5) raises a timing issue and states that “an insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs that complies with this section is submitted to the insurer.”

16The applicant submits that “an In-home with Form 1 Assessment was submitted to the insurer a few weeks following the accident. This assessment was initially denied as the insurer felt that the client might be within the “MIG”. The applicant could not afford to pay for this assessment, and it was not completed until March 16, 2017.” The respondent submits that it only received the Form 1 on March 17, 2017 and, given s. 42(5), it is not required to pay any ACBs incurred prior to that date.

17On the evidence before me, I am confused by the applicant’s submissions. On the one hand, she states that a Form 1 was “submitted to the insurer a few weeks following the accident” but does not provide the actual form or any further details one would expect, such as on what date, by whom was the form completed, and the amount of the total assessed monthly attendant care benefit. On the other hand, the only Form 1 included in the applicant’s brief was the Form 1 dated March 15, 2017,³ prepared by P. Laurier of Network Health Assessment in the amount of $1,424.25. The date of the assessment is clearly set out as March 15, 2017 and the assessor also confirms that this was the first assessment of the applicant. Indeed, the respondent only admits to the receipt of the Form 1 on March 17, 2017 and no other Form 1. Therefore, I find as a matter of fact that the only Form 1 that was submitted was the March 15, 2017 Form 1, which the respondent received on March 17, 2017. There simply was no other Form 1 that was provided with the submissions and documentation and, for that reason, I am unable to conclude that another Form 1 was ever submitted prior to March 17, 2017.

18My plain reading of s. 42(5) is that the insurer is not required to pay any attendant care incurred before an assessment of attendant needs that complies with this section is submitted to the insurer. In other words, a Form 1 may be a pre-condition to payment of attendant care expenses. Given my finding that the Form 1 was only received by the respondent on March 17, 2017 - after that the applicable period in dispute had passed - no attendant care is payable for the period in dispute being December 28, 2016 to March 1, 2017

19The applicant seems to advance an argument that the respondent somehow delayed the assessment of J.B.’s attendant care needs. However, it seems to me that the respondent was not required to schedule an assessment without first receiving the Form 1 that included a positive amount of total assessed monthly attendant care benefit. In other words, how could the insurer have known what the requested amount was (ie. was there even a need for this benefit). Perhaps the assessed amount could have been nil or nominal, which would have made this issue moot. In any event, on the facts before me, I find they proceeded to schedule an assessment in a timely manner on May 31, 2017 which is about 6 weeks after receiving the Form 1. More importantly the claim period (December 28, 2016 to March 1, 2017) is before receipt of the Form by the respondent 1 so the applicant’s argument is moot.

20For all of these reasons, I also do not find the attendant care to be payable for the period in dispute.

Are the treatment plans reasonable and necessary?

21Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that a treatment and assessment plan is reasonable and necessary.

Procedural requirements of s. 38(8)

22Section 38(8) imposes multiple procedural requirements on an insurer after receiving a treatment plan: it must respond within 10 business days; state what benefits it will pay or not pay for; and, if it refuses to pay for any benefit, provide the medical and all other reasons why the insurer considers the treatment not to be reasonable or necessary.⁴

23I find that J.B. is entitled to the remaining amounts for the physiotherapy treatment in the amount of $1,213.70 (issue ii) and $1,831.44 (issue iii) and one other treatment plan for physiotherapy in the amount of $1,632.86 (issue vii) as it is reasonable and necessary.

24I shall briefly address each of the treatment plans individually.

ii) $1,213.70 for physiotherapy treatment dated Mach 23, 2017

25I find that J.B. is entitled to the remaining amount for the physiotherapy treatment as the respondent failed to provide medical reasons and comply with s. 38(8) for denying this treatment plan.

26This treatment plan, in the amount of $2,815.88 for 20 physiotherapy sessions and 20 one-hour joint exercises, was partially approved in the amount of $1,602.18 for 12 sessions and 12 half-hour sessions. The applicant submits that there was no medical justification for the reduction of the proposed therapy. I agree.

27S. 38(8) of the Schedule states as follows:

(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary [emphasis mine].

28The intention of the section 38(8) is to provide a detailed explanation to an insured as to what the insurer’s determination of entitlement to a benefit is based on. In the Reconsideration Decision of 16-003316/AABS v. Peel Mutual Insurance Company, Executive Chair Lamoureux explained that an insurer satisfies its obligation to provide its “medical and any other reasons” by explaining its decision with reference to the insured’s medical condition and any other applicable rationale.

29The denial letter and Explanation of Benefits both dated April 3, 2017 (“EOB”) explained that:

The number and duration of treatments appears excessive we will partially approve as per above. Please provide a progress report upon completion of this treatment plan, and if the claimant requires additional treatments another OCF-18 can be submitted.⁵

30My review of the EOB is that the Fund failed to provide any “medical reasons” for the denial. Indeed, there was no IE or any medical report that the Fund was relying on to arrive at the denial. The only reason provided is that the treatment “appears excessive” without providing any further details or particulars of what part of the services was excessive and why. This clearly falls short of the meaningful, accurate details about the insured’s condition forming the basis for the insurer’s decision that is demanded by s. 38(8). As such, I find that the notice was defective. I am not surprised that J.B. wondered and was puzzled why she was being denied treatment and then submitted further treatment plans for physiotherapy treatment.

31What should be the consequence for this violation? Non-compliance under s. 38(8) triggers consequences under s. 38(11) that entitles the applicant to the treatment plans (or the balance thereof).⁶ Further, I note that section subs. 38(11)2 does not include the “reasonable and necessary” and “expenses incurred” wording (as used in section 15). In other words, s. 38 is a procedural provision and s. 15 speaks to entitlement but s. 38 does not specifically incorporate s. 15 into its wording. Therefore, it seems to me, the related question is once there has been a non-compliance with s. 38(8) does the proposed treatment still have to reasonable and necessary. More to the point, does s. 38(11) have to be read together with s. 15. My view is that it does not and the consequences of s. 38(11) flow automatically notwithstanding if the proposed treatment is reasonably necessary or not.

32Neither party has provided any tribunal decision or case law to support their position on this point. My plain reading of section 38(11)2 is that it is a mandatory provision by the use of the word “shall”. It states that the “insurer shall pay for all goods, services…” In simple terms, it deems the benefit payable automatically. Again, there is also no reference to the treatment being reasonable and necessary. It seems to me there are important reasons for holding insurers to their notice obligations under sections 38(8). In particular, it allows the insured person to know the medical reasons for the denial and allows the person to make an informed decision about their potential claims and whether to dispute the insurer’s decision to deny the treatment. Looked another way, if I held that s. 38(11) has to be read in conjunction with s. 15, this potentially could lead to insurers unilaterally, whether inadvertently or intentionally, dispensing with the requirements of s. 38(8) when responding to submitted treatment plans and doing away entirely with important procedural notice obligations under the Schedule and the clear consequence in s. 38(11)2. This would not be fair and could lead to further abuse by an insurer.

33For all these reasons, the mandatory language in section 38(11)2 alone supports J.B.’s entitlement to the disputed balance of the physiotherapy treatment and it is unnecessary for me to make any determination under section 15.

34If I am wrong in my analysis of s. 38(11)2, I also find that the balance of the treatment is reasonable and necessary. I accept the applicant’s submissions that this plan has been incurred and that it assisted the applicant in returning to work in late summer 2017.⁷ This suggests to me that the treatment was reasonable and necessary.

35As a result, the respondent is liable to pay the balance of the plan and reimburse the applicant with interest pursuant to section 51 of the Schedule.

iii) $1,831.44 for physiotherapy treatment dated October 5, 2017

36I find that J.B. is entitled to the remaining amount for the physiotherapy treatment in this treatment plan as she has demonstrated that it is reasonable and necessary.

37This treatment plan in the amount of $2,599.74 for 10 weeks of physiotherapy sessions including mobilization, stimulation, exercise, acupuncture was partially approved in the amount of $768.30. The denial letter and Explanation of Benefits dated October 13, 2017 explained that the number and duration of treatment appears excessive.

38The respondent also arranged for an orthopaedic assessment to determine if this plan was reasonable and necessary. Dr. E.P. Urovitz assessed the applicant on December 4, 2017 and opined that that, given the lack of indication of any major residual objective signs of ongoing orthopaedic impairment, the proposed treatment was not reasonable and necessary. Dr. Urovitz further explained that J.B. should be engaged in a self-directed program of shoulder mobilization, strengthening exercise which can be carried out independently.

39My review of Dr. Uroviz’s report is that he does not adequately explain why the proposed physiotherapy is not reasonable and necessary in relation to J.B.’s condition. Particularly since Dr. Urovitz notes some restriction in range of motion in the left shoulder and that J.B. continues to experience pain in her left shoulder produced by physical activity and movement. More specifically, Dr. Urivtiz’s found that “there appeared to be symmetrical combined abduction external rotation, adduction internal rotation and comparing left shoulder girdle to the right shoulder girdle.” He also reviews an x-ray of December 29, 2016, which shows an anterior dislocation of the glenohumeral joint and avulsion fracture of the greater tuberosity and fractures at the mid shaft of the clavicle.

40I could not reconcile how Dr. Urovitz, when conducting his physical examination, observes that J.B. was tender and overall improvement is reported only as 60-70% and notes restrictions in the range of motion but does not recommend any further treatment aside from self-directed exercises (which the applicant was already doing).

41In my view, the presence of objective supporting evidence to justify further physiotherapy treatment is key in determining whether the medical benefit in dispute is reasonable and necessary. Certainly, nowhere in the report does Dr. Urovitz conclude that J.B. has reached maximum medical recovery or has achieved maximal benefit from the proposed treatment in the plan. It was apparent at the time of Dr. Urovitz’s assessment that J.B. was still seeing her family doctor, attending regular physiotherapy and still taking pain medication.

42It is well-settled that pain reduction is a legitimate goal for treatment. I find J.B.’s physical impairments and longstanding history of anxiety/adjustment disorder, which appear to have been exacerbated by the accident, are well-documented throughout the file and continue to persist. For example, the Toronto Western Hospital record of Dr. A. Watson from the fracture clinic describes that her pain as improving, and she has passive range of motion. In a follow up appointment Dr. Watson’s notes if the x-ray is good, he would remove some restrictions. Clearly there are still restrictions at that time and J.B. requires further care for her accident-related injuries.

43I find it reasonable and necessary to allow J.B. more opportunity to see if greater benefit can be achieved from continued physiotherapy treatment.

44The applicant may incur the costs proposed in the treatment plan and the respondent is liable to pay for them in accordance with the Schedule. In the event that the applicant has already incurred the cost, the respondent must reimburse the applicant with interest pursuant to section 51 of the Schedule.

iv) $2,023.60 for physiotherapy treatment dated January 9, 2018?

45I find that J.B. is not entitled to the proposed physiotherapy treatment in this plan as she has not demonstrated why it is reasonable and necessary.

46This treatment plan in the amount of $2,023.60 for physiotherapy treatment was denied by the respondent based on Dr. Urovitz’s IE paper review dated February 27, 2018. Dr. Urovitz concluded that the applicant’s injuries including her fracture dislocation of her left shoulder and fracture of left clavicle have healed and she has reached maximum medical recovery and would not benefit from further treatment.

47The applicant disagrees with Dr. Urovitz’s findings because she explains that he could not have conducted a thorough assessment as he did not review an ultrasound report that was apparently provided to the respondent on February 6, 2018. She further submits an insurer is obligated to furnish their chosen assessor with all scans, x-rays and reports in their possession. The respondent states that they do not have any record of receiving this ultrasound, though it did receive an ultrasound report dated October 4, 2018 for which Dr. Urovitz prepared an addendum report in which he explained that the ultrasound did not change his opinion. In reply submissions, the applicant maintains that the ultrasound was provided to the adjuster on February 6, 2018 via email and that a copy of that email can be provided.

48Overall, aside from the availability of the ultrasound (when Dr. Urovitz conducted his paper review of February 27, 2018 which he ultimately did receive and concluded it did not change his opinion), I reiterate that it is J.B.’s onus to prove that the amounts claimed are reasonable and necessary. I find she has failed to justify why the proposed treatment is required. J.B.’s submissions do not speak to why the treatment is needed and do not address any of the plan’s goals for the treatment in any way or what the breakdown for the sessions will even be. They do not point me to any medical evidence to support why the treatment is reasonable and necessary. Absent information to rebut the Fund’s denial, I see no reason not follow Dr. Urovitzi’s recommendation and find this plan not to be reasonable and necessary.

v) $1,524.75 for a gym membership and personal trainer dated March 2, 2018

49I find that J.B. is not entitled to the remaining amount for the gym membership and personal training sessions in this treatment plan as she has not demonstrated that it is reasonable and necessary.

50The applicant submits that the respondent is obligated to follow the recommendations of Dr. Urovitz, who, in his December 4, 2017 IE report, recommended a self-directed program of shoulder mobilization and strengthening exercises. I did not read Dr. Urovitz’s report as recommending the disputed treatment plan; just a self-directed program of exercises. This is much different than a gym membership and personal training sessions.

51The respondent partially approved $979.00 of the $2,494.75 total amount of the plan, explaining that the gym membership in the amount of $1,200.00 and $1,1125 for 15 personal training sessions was excessive.

52I agree with the Fund. While I find J.B.’s impairments are documented throughout the file, I reiterate that it is her onus to prove that the amounts claimed are reasonable and necessary. I find that she has failed to justify why the amounts above what the Fund as already approved are required. Simply saying that proposed plan takes into account her entire medical situation and proposes a plan based on her actual situation falls short. Absent information to rebut the Funds’s partial approval, I see no reason not to follow Dr. Urovitz’s recommendation, especially since he never recommended that J.B. required a personal trainer and find the unapproved portion to not be reasonable and necessary.

vi) $1,740.93 for physiotherapy treatment dated May 15, 2018

53I find that J.B. is not entitled to the proposed physiotherapy treatment in this plan estimated duration of 12 weeks as she has not demonstrated why it is reasonable and necessary.

54The respondent denied this entire treatment plan based an Dr. Urovitz’s IE report dated June 14, 2018 that opined that, taking into consideration the timeframe and previous assessments, which at this time failed to demonstrate any major objective signs of accident-related orthopedic impairment, the proposed services are not deemed medically necessary and/or necessary.

55I find that the applicant has not provided enough information to meet the evidentiary burden to prove why the plan is reasonable and necessary. J.B.’s submissions are lacking. They do not speak to why the treatment is needed, and do not address any of the plan’s goals for the treatment. They do not point me to any medical evidence to support why the treatment is reasonable and necessary. The Tribunal order required the parties to pinpoint references to their evidence and law. Further clinical notes and records are normally helpful in assessing whether a treatment plan is reasonable and necessary because they provide corroboration for the applicant’s ongoing issues and complaints, diagnoses, and progress. Here, I found most of the handwritten CNRs very difficult to read as I tried to decipher if there was anything relevant. The only medical reference in the applicant’s submissions is to a clinic report of Dr. Seligman dated September 14, 2018, which I find relevant but was only produced after this plan was already denied.

vii) $1,632.86 for physiotherapy treatment dated October 2, 2018

56I find on the evidence that J.B. is entitled to the cost of this treatment plans for physiotherapy services as further treatment is reasonable and necessary.

57By this time, the applicant saw Dr. Seligman, orthopaedic surgeon, on September 14, 2018, who prepared a Fracture Clinic Report noting “on physical examination her range of motion is 75% of normal…this woman had a partial frozen shoulder with stiffness post-injury.” Dr. Seligman recommended that she should continue with physiotherapy and aggressive therapy to push things and maximize her function, noting that she still has some limitation of motion and hopefully this can be improved.

58I find this evidence persuasive and compelling that J.B. requires further physiotherapy as she still has limitations and to increase her range of motion.

59For these reasons, I find that J.B. is entitled to the cost of this plan recommended by Samiksha Chawda of [Health Centre], as it is reasonable and necessary.

60The applicant may incur the costs proposed in the treatment plan and the respondent is liable to pay for them in accordance with the Schedule. In the event that the applicant has already incurred the cost, the respondent must reimburse the applicant with interest pursuant to section 51 of the Schedule.

Collateral Benefits – s. 47(2)

61The respondent submits that they are not required to pay any expense for which payment is reasonably available to the applicant under an extended health care plan pursuant to s. 47(2) of the Schedule. They say the applicant received collateral benefits through her partner who is insured by Manulife Financial and the Chambers of Commerce Group Insurance Plan. They site that J.B. received physiotherapy treatment between January 2018 and November 2018 through Manulife. In reply, the applicant explains that all of the disputed treatment plans were all submitted to J.B.’s private plan with Chambers of Commerce and Manulife and all of the “issues are net of submission to her plans.”

62My understanding is that s. 47(2) “speaks of an exemption for the insurer if the expense is reasonably available ‘under any insurance plan or law or under any other plan or law.’”⁸ There is evidence from the applicant that she submitted them but that Chambers of Commerce and Manulife would not pay for any portion of the disputed treatment plans that remains in dispute. My difficulty is that I have little, if any, information on the extent to which Chambers of Commence of Manulife would pay for the assessment at issue.

63The rule that has often been applied is these circumstances is that, once the existence of a collateral insurance policy has been established, the insured bears the legal burden of proving what benefits were reasonably available in the circumstances.⁹ Since the insurer would benefit from its applicability, s. 47(2) first requires that an insurer put the section in play. An insurer must advance some evidence or submission that, on balance, establishes that the benefit at issue was reasonably available to the insured from a collateral provider. If an insurer has satisfied that onus, the burden then shifts to the insured to prove that the benefit at issue was not in fact reasonably available.¹⁰

64Applying this approach here, I am not satisfied that the Fund has discharged its onus. In its written submissions it offered the bare assertion that J.B. received physiotherapy treatment between January 2018 and November 2018 through Manulife with two footnote references to plan invoices (Chambers of Commerce Group Insurance Plan Invoice and Manulife Financial Invoice) which appears that I was never provided with. I am not satisfied that the benefit at issue was reasonably available to the insured from a collateral provider. Moreover, the applicant has explained that this benefit was not in fact available.

65Therefore, I find no evidence has been presented by either party to show the amount of collateral benefits coverage that is actually available to pay for the benefits in dispute. As such I cannot find that collateral coverage is available to pay for the specified benefit pursuant to s. 47(2).

Misc.

66Finally, I note that the applicant’s Submissions Brief included an EOB and an IE psychological report of Dr. P. Derry to provide an opinion regarding a treatment plan completed by Dr. Mills in the amount of $2,000.00 dated January 17, 2017 for a psychological assessment. However, this was not an issue before me as per the case conference order of Adjudicator Manigat, dated August 14, 2019. Further neither of the parties’ submissions address this treatment plan.

67The applicant also does not argue that s. 3(8) of the Schedule applies and that the treatment plans should be deemed incurred because the Fund unreasonably withheld or delayed the payment of benefits.

INTEREST

68Although not included as an issue, section 51 of the Schedule provides that interest if payable on any overdue payments.

69Section 15 of the Schedule provides that the respondent is liable to pay for reasonable and necessary treatment incurred by the applicant. I have found that the applicant incurred the treatment in the amount of $1,213.70 (issue ii) and therefore must reimburse the applicant with interest pursuant to section 51 of the Schedule.

70I have no evidence that the applicant incurred any of the other disputed treatment plans which I have found reasonable and necessary (issues iii, vii), nor do I have evidence that the applicant or clinic invoiced the respondent for the disputed treatment. Once the applicant incurs these costs, or has already, the respondent must reimburse the applicant with interest pursuant to s. 51 of the Schedule.

CONCLUSION/ORDER

71For the reasons outlined above. I find on the evidence that J.B. is not entitled to attendant care for either period in dispute (December 28, 2016 to March 1, 2017). No interest is payable.

72J.B. is entitled to the remaining amounts for the two-physiotherapy treatment in the amount of $1,213.70 (issue ii) and $1,831.44 (issue iii) and one other treatment plan for physiotherapy in the amount of $1,632.86 (issue vii).

73The applicant is not entitled to the three remaining treatment plans in dispute for physiotherapy in the amounts of $2,023.60 (issue iv), $1,524.75 (issue v) and $1,740.93 (issue vi).

74J.B. is entitled to payment for interest on any overdue amounts, if incurred, pursuant to s. 51 of the Schedule.

Footnotes

1. 1Para. #1 of Applicant’s Submissions state that the accident was on December 8, 2016.
2. 2I do note that the Tribunal Order did stipulate that no affidavits were to be submitted at the hearing, but this did not prevent the applicant from requesting permission to file same.
3. 3Applicant’s Brief pages 71-76.
4. 4M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) at para. 10.
5. 5Applicant’s Submission Brief, EOB, page 80.
6. 6There is no evidence that the defective notice of was ever cured by the Fund.
7. 7Applicant’s Submissions, page 5.
8. 8G.T. v. Unifund Assurance Company, 2017 CanLII 81567 (ON LAT) para. 22.
9. 9G.T. v. Unifund Assurance Company, 2017 CanLII 81567 (ON LAT) para. 27.
10. 10G.T. v. Unifund Assurance Company, 2017 CanLII 81567 (ON LAT) para. 27.