Hunter v. Coseco Insurance Company, 2021 CanLII 111095

Licence Appeal Tribunal

Citation: Hunter v. Coseco Insurance Company, 2021 ONLAT 20-006495/AABS

Licence Appeal Tribunal File Number: 20-006495/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:

Debra Hunter

Applicant

and

Coseco Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Jonathan M. Burton, Counsel

For the Respondent: Emily Schatzker, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant, Debra Hunter, was injured in an automobile accident on April 28, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Coseco Insurance Company, the respondent.

2The respondent denied the applicant’s claims for an occupational therapy assessment, physiotherapy, massage therapy, chiropractic treatment, and craniosacral therapy. As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on October 26, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is the applicant entitled to $2,200.00 for an occupational therapy assessment recommended by Mindful Occupational Therapy Services in an OCF-18 dated July 4, 2019?

(ii) Is the applicant entitled to physiotherapy, chiropractic treatment, and massage therapy recommended by North Toronto Rehabilitation as follows:

(a) $1,886.29 in a treatment plan (OCF-18) dated August 9, 2019; and

(b) $1,437.98 in an OCF-18 dated February 24, 2020?

(iii) Is the applicant entitled to craniosacral therapy as follows:

(a) $345.00 submitted by way of an expenses claim form (OCF-6) dated May 22, 2019; and

(b) $610.00 submitted by way of an OCF-6 dated July 4, 2019?

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

RESULT

5I find that the applicant is not entitled to any of the three treatment plans in dispute or to the two expense claim forms. As a result, no interest is owing, and the application is dismissed.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the insurer shall pay 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.

7I find that the applicant is not entitled to the occupational therapy assessment or to the two treatment plans for physiotherapy, chiropractic treatment, and massage therapy.

Occupational Therapy Assessment

8The June 4, 2019 OCF-18 was completed by Khoa Le, occupational therapist, and sought funding for an occupational therapy assessment. The proposed assessment was for an in-home occupational therapy assessment to determine the applicant’s current functionality including her attendant care needs and rehabilitation goals. An Assessment of Attendant Care Needs (Form 1) would also be completed as part of the assessment. The proposed assessment included the time to assess the applicant, a review of the applicant’s complete medical file, consultation with medical doctors and the applicant’s rehabilitation, therapist travel time, and report writing time.

9I find that the applicant has failed to meet her onus of proving on a balance of probabilities that an in-home occupational therapy assessment was reasonable and necessary in June 2019, because there is no evidence before me that she required attendant care services in, or about that time. For example, the clinical notes and records (CNRs) of Dr. Pamela Mark, the applicant’s family physician, noted at a May 21, 2019 visit, that the applicant was completing housework, including laundry and cooking, at a May 21, 2019 visit.

10Further, in a July 31, 2019 Morneau Shepell form for Great West Life completed by Dr. Daisy Truong, chiropractor,² Dr. Truong reported that while the applicant had restrictions regarding heavy lifting, ladder climbing, and certain movements at waist level, the applicant was still able to perform her activities of daily living subject to the minimization of certain movements.

11Additionally, the applicant was assessed on July 30, 2019 by Dr. Christopher Aldridge, family physician. In Dr. Aldridge’s resulting August 16, 2019 General Practice Insurer’s Examination Report,³ the applicant reported that she was walking five days per week for approximately 30 to 45minutes per session⁴ and that she was able to complete her self-care tasks.⁵ Dr. Aldridge also reported that the applicant was physically able to perform her cooking duties, drive, grocery shop, complete the laundry and household cleaning (including vacuuming and mopping), and that she was able to take out the garbage and the recycling.⁶

12Therefore, there is no supporting evidence before me that the applicant required any attendant care assistance covered by a Form 1 in or about June 4, 2019, such that the in-home occupational therapy assessment would be reasonable and necessary. As a result, I find that the applicant is not entitled to the June 4, 2019 treatment plan.

Physiotherapy, Chiropractic Treatment, and Massage Therapy

13The two OCF-18s in dispute for physiotherapy, chiropractic treatment, and massage therapy were both completed by Dr. Ian Kai, chiropractor. The August 9, 2019 OCF-18 sought funding for thirteen 1-hour sessions of chiropractic treatment, four 30-minute sessions of massage therapy, and two 30-minute sessions of physiotherapy. The estimated duration of this treatment plan was five weeks.

14I find that the August 9, 2019 OCF-18 is not reasonable or necessary, as it proposed a duplication of services that had already been approved by the respondent. On June 26, 2019, the applicant submitted, and the respondent ultimately approved, an OCF-18 to the respondent which was also completed by Dr. Kai and sought funding for twenty-seven 1-hour sessions of chiropractic treatment, eight 30-minute sessions of massage therapy, and two 30-minute sessions of physiotherapy. The estimated duration of this treatment plan was twelve weeks, which would end September 18, 2019. As the estimated duration of the August 9, 2019 OCF-18 was five weeks, which would have ended on September 13, 2019, the August 9, 2019 directly overlapped the duration of the approved June 26, 2019 OCF-18 for identical treatment modalities and, therefore, constituted a duplication of services. As a result, the applicant is not entitled to this treatment plan.

15The February 24, 2020 OCF-18 sought funding for ten 1-hour sessions of chiropractic treatment, two 30-minute sessions of massage therapy, and one 30-minute sessions of physiotherapy. The estimated duration of this treatment plan was five weeks. The goals of this OCF-18 were pain reduction, increase in strength, increase range of motion, and a return to activities or normal living. This treatment plan noted that the applicant continued to experience pain in her upper and lower back which was compounded by the fact that she returned to work on a daily basis. This OCF-18 also noted that the applicant has not been able to come in for treatment as frequently because her workplace moved to Mississauga, which limited her access to the treating facility.

16I find that the applicant has failed to prove the reasonableness and necessity of this treatment plan on a balance of probabilities for the following reasons:

(i) The applicant’s most recent visit to Dr. Mark prior to the date of the February 24, 2020 treatment plan was on September 9, 2019. Dr. Mark’s CNR entry for this visit noted that the applicant generally looked well, that she was not in distress, that she was back to work, she had no further headaches, and that her back and shoulders needed some stretching out each morning. Dr. Mark did not make any recommendation for any further treatment at this visit;

(ii) The applicant’s next visit to Dr. Mark after September 9, 2019 was not until June 26, 2020. At this visit, the applicant reported tweaking her back after working for 33 days straight and was diagnosed with an acute back strain. I find that this visit and resulting diagnosis was not accident-related and, in any event, was not contemporaneous to the February 24, 2020 OCF-18;

(iii) While the CNRs from North Toronto Rehabilitation and Physiotherapy show two appointments for physiotherapy and massage therapy in 2020, one on February 24, 2020 and the second on March 9, 2020, there was a four-month gap in the applicant’s treatment leading up to this time. The applicant provided no evidence or explanation as to the reason why she restarted treatment on February 24, 2020, the same date as the disputed treatment plan; and

(iv) There is no other evidence before me dated in or about February 24, 2020 and it is well settled that a treatment plan on its own is not compelling evidence in support of treatment. There must be compelling contemporaneous evidence in support of the proposed treatment which, in my opinion, has not been submitted in relation to the February 24, 2020 OCF-18.

17For all these reasons, the applicant is not entitled to the February 24, 2020 treatment plan.

Craniosacral therapy

18The applicant submitted two OCF-6s for reimbursement from the respondent. The first OCF-6 was dated May 22, 2019 and sought reimbursement for:

(i) A May 8, 2019 invoice from Physiomed Danforth ($80.00);

(ii) Craniosacral therapy treatment on May 5, 2019 ($150.00); and

(iii) Craniosacral therapy treatment on May 12, 2019 ($115.00).

19On May 31, 2019, the respondent denied payment of the May 22, 2019 OCF-6 because the OCF-6 was not for approved services.⁷ The respondent stated that it had previously made the applicant aware that all medical goods and services were to be submitted on an OCF-18 by way of HCAI for review and consideration. The respondent confirmed that no OCF-18 had been submitted for the treatment for which the applicant was claiming reimbursement.

20Despite the direction from the respondent, the applicant submitted a second OCF-6 dated July 4, 2019 in the total amount of $610.00. This OCF-6 sought reimbursement for five sessions of craniosacral therapy including the two sessions previously listed on the May 22, 2019 OCF-6 as well as sessions that occurred on May 20, 2019, May 30, 2019, and June 6, 2019.

21On July 24, 2019, the respondent denied payment of the July 4, 2019 OCF-6 for the same reasons it provided for its denial of the May 22, 2019 OCF-6.⁸

22In its hearing submissions, the respondent relied upon s. 38(2) of the Schedule to support its position that it is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before the applicant submitted an OCF-18 subject to certain exceptions. The respondent’s position is that because none of the exceptions apply in this matter, it is not liable to pay for either OCF-6. I agree.

23Section 38(2) of the Schedule provides that an insurer is not liable to pay for a medical benefit if it was incurred before the insured submitted a treatment plan unless one of the following exceptions are met:

(i) The insurer gives the insured a notice under s. 39(1) of the Schedule stating that the insurer will pay the expenses without a treatment plan;

(ii) The expense is for an ambulance or other services provided for on an emergency basis within five days of the accident;

(iii) The expense is reasonable and necessary as a result of the impairment for drugs prescribed by a regulated health practitioner or goods referred to in s. 15(1)(d) to (f) and s. 16(3)(h) to (j) of the Schedule that cost less than $250.00 per item; or

(iv) The insurer agrees that the expense is essential for the treatment or rehabilitation of the insured person for goods or services referred to in s. 15(1)(h) or s. 16(3)(l) with a cost of $250.00 or less per item or service.

24In this matter, the applicant does not claim that the disputed OCF-6s fall under one of the exemptions. Instead, the applicant submitted in reply that her treatment provider of craniosacral therapy does not have access to HCAI and, as such, is unable to prepare an OCF-18. In addition to no evidence being before me to support this submission from the applicant, there is no exemption that would apply in such a situation even if the applicant’s position was supported by evidence.

25While I am sympathetic to the applicant’s submissions, and the fact that these amounts have been incurred as demonstrated by the supporting receipts submitted, the Schedule does not provide me with an ability to look past s. 38(2) in this instance as the applicant has failed to prove on a balance of probabilities that any of the four exceptions under s. 38(2) apply in this case. Therefore, I find that the respondent is not liable to reimburse the applicant for the May 22, 2019 and the July 4, 2019 OCF-6s.

Interest

26As there are no benefits owing, no interest is payable.

CONCLUSION

27For the reasons outlined above, I find that:

(i) The applicant is not entitled to the July 4, 2019, August 9, 2019, and the February 24, 2020 OCF-18s;

(ii) The applicant is not entitled to payment for the May 22, 2019 and July 4, 2019 OCF-6s;

(iii) No interest is payable; and

(iv) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Document Brief Delivered on Behalf of the Applicant, tab 19.
3. 3Document Brief of the Insurer, page 24.
4. 4Ibid. at page 7.
5. 5Ibid. at page 9.
6. 6Ibid.
7. 7Document Brief of the Insurer, page 79.
8. 8Document Brief of the Insurer, page 89.