Abdelhay v. The Co-Operators Insurance Company, 2021 CanLII 35574

Licence Appeal Tribunal

Citation: Abdelhay v. The Co-Operators Insurance Company, 2021 ONLAT 20-000606/AABS

Release date: 04/29/2021

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:

Nadia Abdelhay Applicant

and

The Co-Operators Insurance Company Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Daniel Badre, Counsel

For the Respondent: Jonathan Heeney, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was in an accident on January 12, 2016, and sought benefits from the respondent, Co-Operators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Co-Operators denied the benefit in dispute on the basis that it was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The sole issue in dispute is as follows:

a. Is the applicant entitled to $2,488.45 for physiotherapy treatment, denied by the respondent on September 5, 2018?

RESULT

3The applicant has not demonstrated that the treatment plan in dispute is reasonable and necessary or payable.

ANALYSIS

Is the treatment plan reasonable and necessary?

4To receive payment for a medical or rehabilitation benefit under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the treatment is reasonable and necessary. The analysis should identify the reasonableness of the treatment goals, how the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

5Despite the sole issue in dispute being a treatment plan for physiotherapy services, the applicant’s submissions and evidence focus on the psychological impairments sustained and how further treatment related to a psychological OCF-18 that is not in dispute and was not part of her application is reasonable and necessary. Indeed, in her initial submissions, she identifies the issue in dispute as an OCF-18 dated July 7, 2019 from Ricci Psychological Corporation, while the issue before the Tribunal, confirmed in the Case Conference Report and Co-Operators’ submissions, is a September 5, 2018 OCF-18 for physiotherapy services.

6Problematically, the applicant’s submissions focus on why it is inappropriate for Co-Operators to maintain that she has minor physical injuries when she has been removed from the Minor Injury Guideline (“MIG”) for her psychological impairments. Further, her reply submissions only wrestle with the requirements for “incurred” under the Schedule, and not on her burden of proving that the treatment plan for physiotherapy that is in dispute is reasonable and necessary.

7While I am alive to the fact that the applicant has been removed from the MIG for psychological impairments, it does not follow that she is automatically entitled to payment for treatments related to physical impairments. Contrary to the applicant’s assertion that Co-Operators’ position is contradictory, it is common for an insured to be removed from the MIG on the basis of a psychological impairment while only having sustained minor injuries, as defined by the Schedule. In such a scenario and with access to increased funding limits, the insured still must prove that the treatment they seek is reasonable and necessary.

8The applicant has failed to do so. There is no discussion of the goals of the September 5, 2018 physiotherapy treatment plan, how the goals would be met to a reasonable degree or why the cost of same is reasonable and necessary. An OCF-18 on its own is not persuasive medical evidence that the treatment proposed is reasonable and necessary. The applicant has not demonstrated that the OCF-18 in dispute is reasonable and necessary and it is therefore not payable.

9Co-Operators’ submissions focused on x-ray reports which revealed degenerative changes and no specific findings to justify the applicant’s symptoms. It also points to the fact the applicant completed over 25 sessions of physiotherapy in Canada and another 30 sessions in Dubai, without improvement. Where the applicant produced limited evidence that further physiotherapy would be of benefit, Co-Operators’ ultimately relies on the s. 44 report and addendum of Dr. Perera, who concluded that there was no objective evidence of an ongoing physical impairment as a result of the accident which would require further physical therapy. On the evidence before the Tribunal, I have no basis to interfere with this determination.

ORDER

10The applicant has not demonstrated that the OCF-18 is reasonable and necessary.

Footnotes

1. 1O. Reg. 34/10, as amended.