Smith v. Wawanesa Mutual Insurance Company, 2022 CanLII 106432

Citation: Smith v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-013811/AABS

Licence Appeal Tribunal File Number: 20-013811/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:

Andrew B Smith

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Amanda Marshall

APPEARANCES:

For the Applicant: Sandra Zisckind, Counsel

For the Respondent: Alexander Hartwig, Counsel

HEARD: In Writing

By way of written submissions

BACKGROUND

1The applicant was involved in an automobile accident on January 9, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). On October 28, 2019, the respondent accepted the applicant was catastrophically impaired (“CAT”). The applicant was denied certain medical benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are in dispute:

1. Is the applicant entitled to $1,180.00 for massage therapy, proposed by Functionability Rehabilitation Services in a treatment plan/OCF-18 (“plan”) dated March 27, 2020 and denied on March 31, 2020?
2. Is the applicant entitled to $860.00 for chiropractic services, proposed by Mallory Chiropractic Professional Corporation in a plan dated January 16, 2020 and denied on March 17, 2010?
3. Is the applicant entitled to $2,360.00 for physiotherapy services, proposed by Mallory Chiropractic Professional Corporation in a plan dated November 14, 2019 and denied on March 2, 2020?
4. Is the applicant entitled to $1,326.80 ($4,165.04 less $2,838.24 partially approved) for occupational therapy, proposed by Functionability Rehabilitation Services in a plan denied January 23, 2020?
5. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

3In the applicant’s submissions, he seeks to add the issue of costs.

4In the Case Conference Report and Order dated February 22, 21 by Vice-Chair Sandeep Johal, issue number three (3) was recorded as being chiropractic services. After reviewing the treatment plan and the parties’ submissions, I have concluded that the service in dispute is physiotherapy services and not chiropractic services.

Result

5The applicant has not demonstrated that the massage, chiropractic, physiotherapy, and occupational therapy treatments are reasonable and necessary, or that interest or an award are appropriate. The applicant’s request for costs is also denied.

ANALYSIS

Preliminary Issue

Is the applicant entitled to add the issue of costs?

6The applicant is entitled to add the issue of costs to this proceeding as the Common Rules of Practice & Procedure allow for costs to be added in-writing at a hearing anytime before a decision is released.¹

7In accordance with the Rules, the applicant is entitled to add costs to the issues in dispute.

8I will now turn to discuss the substantive issues in dispute for this hearing.

Substantive Issues

9To 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. In order to accomplish this, the applicant 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.

10The applicant submits that the denials of the treatment plans in dispute have prevented him from receiving treatment that would be most effective and beneficial to treat his ongoing physical, cognitive, and psychological symptoms and his health has deteriorated without the treatment. He relies on the clinical notes and records from Dr. Farhad Motamedi, Family Physician, Dr. Lucian Sitwell, Neurologist, Dr. David Duong, Psychologist, and Janet Trickett, Occupational Therapist.

11The respondent submits that further facility-based physical treatment would not be of benefit six years post accident and, therefore, not be reasonable and necessary. The respondent states that there is no evidence to suggest the applicant’s overall health deteriorated because he did not receive physiotherapy, massage, or chiropractic treatment. The respondent relies on the s. 44 physiatry report of Dr. Mohammad Abdul Wahab Khan dated February 13, 2020.

Is the applicant entitled to $1,180.00 for massage therapy, $860.00 for chiropractic services or $2,360.00 for physiotherapy services?

12I find that the applicant has failed to meet his onus of proving that the proposed massage therapy, chiropractic service, and physiotherapy services are reasonable and necessary.

Massage therapy

13The March 31, 2020 treatment plan was completed by Janet Trickett, OT. The OCF-18 sought funding for 10 sessions at the rate of $98.00 per session and $200 for documentation completion. The goals of the treatment plan were to provide pain reduction, increased range of motion, reduced frequency of post-concussion and chronic pain symptoms, and a return to activities of normal living.

Chiropractic Services

14The January 16, 2020 treatment plan was completed by Brian Watson, Chiropractor. The OCF-18 sought funding for 12 sessions of chiropractic treatment as well as the associated assessment. The information about the cost and number of sessions of the treatment plan was gleaned from the s. 44 Paper Review Report of Dr. Khan. Neither party submitted a copy of the OCF-18 with their submissions, only the denial letter which did not provide any treatment plan specifics.

Physiotherapy Services

15The November 14, 2019 treatment plan was completed by Sandra Childs, Physiotherapist. The OCF-18 sought funding for 24 sessions at the rate of $90.00 per session and $200 for documentation completion. The goals of the treatment plan were to provide pain reduction, increased range of motion, increased strength, and a return to a physically active lifestyle.

16In submissions, the applicant directs the Tribunal to evidence from various dates indicating he suffers from back and neck pain, headaches, cognitive issues, psychological issues, and chronic pain. I find these complaints are documented in the years since the accident. However, as it is his onus to prove entitlement, I find the applicant has not demonstrated why these specific passive modalities, that being massage therapy, chiropractic treatment and physiotherapy treatment, are reasonable and necessary to address his impairments. His submissions do not explain how the proposed slate of 10 massage therapy sessions, 12 chiropractic sessions, or 24 sessions of physiotherapy, would help to further the goals of increasing his function or addressing his chronic pain.

17The applicant submitted that he has received physical treatment since the time of his accident and deteriorates without it. He stated that he paid out of pocket for treatment from 2015 to 2019. While I am alive to the applicant’s submission that he attended treatment from 2015 to April 2019 and paid out of pocket, he has not submitted any evidence covering that time indicating what types of treatment he received, the frequency of the treatments, or the cost of such. The applicant has not directed the Tribunal to evidence showing how his impairments deteriorate when he does not receive passive treatments.

18The respondent denied treatments based on the February 27, 2020 s.44 physiatry report and March 13, 2020 paper review of Dr. Khan. Dr. Khan documented, “He has undergone a course of facility-based therapy but denied experiencing any overall improvement in his symptoms to date.”²

19Dr. Khan reported that while the prognosis for soft tissue injuries is generally favourable, since it has been more than six years since the accident without any reported improvement, the prognosis for a complete recovery is guarded from a physical perspective.³

20As the applicant stated that he was receiving treatment from 2015 to 2019, it is unclear why the applicant did not provide evidence of such. This information would assist in understanding what types of treatment he received and the frequency of the treatments. Also, it is unclear why the applicant would pay out of pocket for four years and then in November 2019 decide to begin submitting treatment plans again.

21Due to the lack of evidence to support the applicant’s impairments improve with treatment, I find Dr. Khan’s conclusion that as more than six years have passed, further facility-based treatment is not reasonable and necessary, to be persuasive.

22While the applicant has been found to be CAT, a CAT diagnosis is not sufficient on its own to make every treatment plan automatically payable; the applicant must support each plan with evidence that it is reasonable and necessary to address his pain and functioning. I find the applicant has not done so.

Is the applicant entitled to $1,326.80 for occupational therapy?

23I find that the applicant has not met his onus of proving on a balance of probabilities that the unapproved portions of the December 17, 2019 OCF-18 are reasonable and necessary.

24The December 17, 2019 OCF-18 was completed by Janet Trickett, OT, and sought funding for eight (8) sessions of occupational therapy, $200 for form completion, eight (8) hours of brokerage, six (6) hours for documentation, and the provider’s travel time and mileage.

25On January 23, 2020, the respondent partially approved the December 17, 2019 treatment plan. The respondent did not approve the portion of the treatment plan for the provider’s mileage, as per FSCO Bulletin A-14-14, and only partially approved the cost for brokerage and documentation as it was the respondent’s position that these fees exceeded a reasonable fee for these services.

26I find the applicant has failed to prove the reasonableness and necessity of unapproved portions of the December 17, 2019 treatment plan for the following reasons:

(i) I agree with the respondent as per the FSCO Bulletin A-14-14, mileage is not to be charged in addition to the hourly rate. Mileage expenses are intended to apply to expenses incurred by the insured person and an aide for travel to and from treatment sessions and not for the provider’s travel.⁴ The provider’s mileage is not payable.

(ii) Brokerage was described as indirect therapist activities such as file documentation review; session planning and preparation; researching programming, community resources, and equipment; completing referrals; communication and consultation with the applicant and other team members; and providing real time telephone/email support to the applicant, when necessary.

(iii) The respondent approved four (4) hours for brokerage and the cost of the document form completion. The applicant has not met his burden to persuade me that the additional four (4) hours of brokerage or the additional six (6) hours for documentation are reasonable and necessary. While the applicant submitted that the denial for the brokerage services and documentation was improper because it was based on the adjuster opinion on what was reasonable for brokerage and documentation fees, the applicant provides no explanation as to why the additional brokerage and documentation fees are payable. As such, I find that the applicant has failed to show that the brokerage and documentation fees are reasonable and necessary.

Is the respondent liable to pay an award under s. 10 of Regulation 664?

27Section 10 of Regulation 664 provides that an award may be granted if the respondent unreasonably withheld or delayed payments. Here I find there was no payment unreasonably withheld or delayed and as a result no award is made.

Is the applicant entitled to interest?

28As no benefits are payable, no interest is payable.

COSTS

Is the applicant entitled to costs?

29Rule 19.1 of the Rules provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.

30Rule 19.2 requires that “A submission on costs shall set out the reasons to the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.”

31Rule 19.3 requires that the party making a request for costs shall set out the amount being requested.

32The applicant requested costs for the proceedings within the conclusion of his submission. However, the applicant did not provide the amount of costs he was seeking which is required under Rule 19.3 nor did the applicant provide submissions specific to the request for costs. Accordingly, I deny the request for costs.

CONCLUSION

33The applicant has not demonstrated that the massage, chiropractic, physiotherapy, and occupational therapy treatments are reasonable and necessary, or that interest or an award are appropriate. The applicant’s request for costs is also denied.

Footnotes

1. 1Common Rules of Practice & Procedure, Rule 19.2
2. 2Respondent’s submission, Tab L, page 198
3. 3Respondent’s submiss, Tab L, page 206
4. 4See s. 3(1)’s definition of “authorized transportation expenses,” and s. 15(2)(c) of the Schedule