Licence Appeal Tribunal
Release date: 08/12/2021
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:
Joshua Chynoweth Applicant
and
Belair Direct Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Joshua Gautreau, Counsel
For the Respondent: Shikha Sharma, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on August 10, 2018. He sought various benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). The benefits in dispute were denied by the respondent on the basis that the treatment sought was not reasonable and necessary. The applicant disagreed and applied to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2As per the Tribunal Order dated September 28, 2020, the issues in dispute are as follows:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (the “MIG”)?
b. Is the medical benefit in the amount of $4,580.08 for chiropractic treatment, recommended by Wise Elephant Rehab in a treatment plan dated October 16, 2018, reasonable and necessary?
c. Is the medical benefit in the amount of $1,295.36 for chiropractic treatment, recommended by Wise Elephant Rehab in a treatment plan dated December 10, 2019, reasonable and necessary?
d. Is the applicant entitled to interest on any overdue payment of benefits?
3In submissions, the parties agreed that the applicant was removed from the MIG on October 15, 2020. As such, the decision will focus on the remaining issues in dispute.
FINDINGS
4I find that the applicant is not entitled to payment for either of the chiropractic treatment plans as they are not reasonable and necessary.
5I find that a s. 10 award is not appropriate.
ANALYSIS
Are the chiropractic treatment plans reasonable and necessary?
6Sections 14 to 15 of the Schedule provide that an insurer is liable to pay for all 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 plan is reasonable and necessary. Although the applicant addresses each issue separately in his submissions, I will discuss them together because the evidence relied on in support is similar for both treatment plans.
7In the treatment plans, the applicant’s injuries are noted to be subluxation complex (vertebral, myalgia, sprain and strain of cervical spine, other headache syndromes, restlessness and agitation, sprain and strain of thoracic spine, pain in thoracic spine, low back pain, sprain and strain of lumbar spine, other anxiety disorders, lack of relaxation and leisure, lack of physical exercise, sleep disorder, unspecified, and other sleep disorders. Both treatment plans were completed by Naeha Sareen, chiropractor and submitted on the respective dates.
i. $4,580.08 for chiropractic treatment
ii. $1,295.36 for chiropractic treatment
8The applicant submits that his need for the treatment is supported by the medical evidence (that being the family physician and treatment provider clinical notes and records, hospital records, consultation reports and diagnostic imaging reports) and that due to his ongoing pain, he incurred the treatment, despite the benefits being denied by the respondent. He submits that the treatment plans are reasonable and necessary because the goals of both are for pain reduction as well as increased range of motion and strength. The applicant argues that he continues to experience pain more than two years post-accident, and, as a result, his injuries are chronic in nature. His position is that the respondent failed to consider his pre-accident injuries, including fibromyalgia, depression and generalized pain (as a result of a previous accident) in determining that the treatment plans in dispute are not reasonable and necessary.
9The respondent’s position is that the applicant has failed to produce sufficient evidence that the chiropractic treatment was reasonable and necessary. It submits that the medical evidence does not support that further facility-based treatment is reasonable and necessary due to the soft tissue nature of his accident-related injuries. It further submits that the applicant failed to produce substantial pre-accident clinical notes and records.
10In support of its position, the respondent relies on the s. 44 report of Dr. Kopyto, general practitioner, who determined that, as a result of the accident, the applicant sustained uncomplicated musculoligamentous strain injuries involving his neck, shoulders, chest and back, as well as post-traumatic headaches. In his report, Dr. Kopyto noted the applicant’s pre-accident history of chronic headaches and back pain, however, Dr. Kopyto did not find the presence of these pre-existing conditions to be complications in the applicant’s recovery.
11Based on a review of medical records and objective testing, Dr. Kopyto concluded that the treatment plans were not reasonable and necessary and that no further facility-based treatment was required. I note that in the clinical notes and records that were provided, a clinical note dated November 7, 2018, notes that the applicant advised his family physician that he was having no accident-related pain or issues.
12Upon review of the evidence, I agree with the respondent. I find that the omission of a recommendation for any treatment, let alone chiropractic treatment, from the family physician, is not substantive, sufficient evidence that the disputed treatment plans are reasonable and necessary. Other than the treatment plans, I find there is no other objective recommendation of chiropractic treatment, or evidence from any treating practitioner that specifically addresses the injuries in which the treatment purports to address, or the benefits of the specific treatment modality. Further, the evidence shows that the applicant reported to his family physician that his soft tissue injuries were resolved in or around December 2019.
13Accordingly, I find that the applicant is not entitled to payment for either of the chiropractic treatment plans as they are not reasonable and necessary. As there are no overdue benefits, interest is not payable under s. 51.
AWARD
14The applicant claims entitlement to an award under s. 10 of O. Reg. 664 on the basis that the respondent has unreasonably withheld payment of benefits by refusing to approve treatment up to the MIG limit and refusing to reconsider the disputed treatment plans once the applicant was removed from the MIG.
15Under s. 10, the Tribunal may grant an award up to 50 per cent of the amount which the applicant would be entitled to if the Tribunal finds that the respondent has unreasonably withheld, or delayed payments based on its conduct.
16On the evidence, I find that an award is not appropriate. The respondent provided evidence of its requests for ongoing medical information from the applicant in order to continue to properly adjust its file. The evidence shows that the applicant failed to produce relevant and necessary medical documentation until July and November 2020, two years post-accident. The applicant’s failure to provide medical documentation in a timely manner prevented the respondent from adequately making determinations regarding funding for treatment. The applicant failed to be an active participant in his own claim for accident benefits. The evidence relied on by the applicant does not support that the respondent unreasonably withheld payment of accident benefits. Consequently, I do not find an award payable.
COSTS
17In submissions, the applicant argues that the respondent wrongly communicated that it will only pay for treatment which he first paid for out of pocket. In addition, he submits that the respondent has acted in bad faith for failing to provide log notes up to the date of the Tribunal application.
18Under Rule 19, a party may request costs if it believes another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. A cost award under Rule 19 is a discretionary remedy that is made in exceptional circumstances. A cost award is meant to deter and penalize behaviour that goes against the spirit of the dispute resolution process. To receive an award under Rule 19, there must be sufficient evidence that the other party has conducted themselves in a way that is unreasonable, frivolous, vexatious or in bad faith.
19On the evidence, I find that the applicant is not entitled to costs.
20Section 49.1 of the Schedule requires the unlicensed service provider to provide the insured with a printed copy of an OCF-21 that was submitted to HCAI. The applicant paid out of pocket because the service provider was not registered through HCAI. The applicant submits that the respondent erred when it communicated that it will only pay for treatment which was first paid for out of pocket. For the reason to follow, I do not find the respondent’s actions to be a ground for an award.
21As the representative, applicant counsel is sufficiently experienced to be able to refer to the Schedule and rely on the appropriate section (that being 49.1), regarding payments to unlicensed providers. An alleged error in communication is not sufficient evidence for a cost award. Further, the applicant has not directed me to any evidence that he has undertaken the appropriate steps pursuant to s. 49.1 for reimbursement of any expense incurred from an unlicensed treatment provider.
22Regarding his claim that the respondent failed to revisit the disputed treatment plans following removal from the MIG, I find that this also is not a justifiable ground for a cost award. The applicant’s failure to provide medical documentation in a timely manner, impeded the respondent from being able to make determinations regarding funding for treatment in a timely manner. One cannot have it both ways, the process is intended for the parties to work in tandem. Where an insured fails to meet his onus, an insurer may suspend payment of benefits. treatment. As previously noted, an insured must be an active participant in a claims process, especially where the insured is the initiator of the proceeding.
23Having reviewed the evidence and submissions, and for the reasons set out above, I find that costs are not appropriate.
CONCLUSION
24I find that the applicant is not entitled to either of the chiropractic treatment plans in dispute as they are not reasonable and necessary. I decline to order an award or costs.
Date of Issue: August 12, 2021
Derek Grant, Adjudicator