Citation: Marion v. Security National Insurance Company, 2022 ONLAT 20-005520/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Gail Marion

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Jonathan M. Burton, Counsel

For the Respondent:

Alyson Spaling, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Gail Marion, was involved in two motor vehicle accidents on June 13, 2012 and January 6, 2017. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ as a result of the June 13, 2012 accident from Security National Insurance Company, the respondent.

2The respondent denied the applicant’s claims for physiotherapy services, massage therapy and a chiropractic assessment. 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 5, 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 $1,035.00 for physiotherapy services recommended by Jordan Physiotherapy submitted by way of an expense claim form (OCF-6) dated June 19, 2019?

(ii) Is the applicant entitled to $1,838.11 for massage therapy and a chiropractic assessment recommended by Shelby Ecclestone in a treatment plan (OCF-18) dated October 30, 2019?

(iii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5I find that the applicant is not entitled to payment of the June 19, 2019 OCF-6 or to the October 30, 2019 OCF-18. As a result, there is no basis upon which to consider an award, no interest is payable, and the application is dismissed.

ANALYSIS

June 19, 2019 Expense Claim Form (OCF-6)

6On June 19, 2019, the applicant submitted an OCF-6 to the respondent seeking to be reimbursed for twenty physiotherapy sessions provided by Adam Blando, physiotherapist, from February 4, 2019 to June 18, 2019, in the total amount of $1,035.00.

7Despite the Tribunal’s October 5, 2020 Case Conference Report and Order clearly identifying the respondent’s position that the June 19, 2019 OCF-6 was not payable as the expenses set out therein were not submitted by way of an OCF-18, the applicant only made submissions regarding the reasonableness and necessity of the incurred physiotherapy. Moreover, when the respondent provided its fulsome submissions on its position that the June 19, 2019 OCF-6 was not payable in its hearing submissions, the applicant failed to file any reply submissions in response.

8In any event, I agree with the respondent that it is not liable to reimburse the applicant for the June 19, 2019 OCF-6. Section 38(2) of the Schedule is clear that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before the insured person submits a treatment and assessment plan for the proposed goods and services. Four exceptions are provided to s. 38(2),² but the applicant has not relied on any of the exceptions in response to the position taken by the respondent and, even if she had, there is no evidence that these exceptions would apply in this matter.

9For all of these reasons, the applicant is not entitled to payment of the June 19, 2019 OCF-6.

October 30, 2019 Treatment Plan

10Sections 14 and 15 of the Schedule provide that an 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.

11The October 30, 2019 treatment plan sought funding for an assessment by Dr. Leila Coulter, chiropractor, 24 sessions of massage therapy, and completion of the OCF-18.

12I find that the applicant has failed to prove on a balance of probabilities that the October 30, 2019 OCF-18 was reasonable and necessary. While I appreciate that the applicant incurred the proposed massage therapy despite the respondent’s denial and reported pain relief following treatment,³ the applicant failed to submit any compelling contemporaneous evidence in support of the proposed massage therapy and chiropractic assessment. For example, in a July 16, 2019 letter by Dr. Tracy Wilson, orthopaedic surgeon,⁴ Dr. Wilson recommends ongoing physiotherapy and steroid injections to the applicant’s right shoulder. There was no recommendation for a chiropractic assessment or massage therapy at this time. Dr. Wilson again recommended steroid injections for the applicant’s shoulder condition and made no further recommendations for any physical treatment in a following letter dated October 2, 2019.⁵ Additionally, in an October 10, 2019 letter by Dr. Maria Carmela Tartaglia, neurologist,⁶ Dr. Tartaglia made no recommendations for any physical therapy.

13There are also no recommendations for any physical therapy in the clinical notes and records (CNRs) of Dr. Mary Valente,⁷ the applicant’s family physician, on or about the date of the treatment plan. The applicant saw Dr. Valente in August and September 2019 for matters unrelated to the accident. On October 10, 2019, the same date as the OCF-18 in dispute, the applicant saw Dr. Valente for a flu shot and there is no mention in this CNR entry of the accident, or any physical complaints made by the applicant. While the applicant complained of occasional neck pain to Dr. Valente on October 29, 2019, Dr. Valente only recommended a full neuropsychological assessment. Further, on December 2, 2019, the applicant reported to Dr. Valente that she was having acupuncture on her neck and was doing yoga three to four times per week. Dr. Valente again made no recommendations for any other forms of physical therapy at that time.

14The respondent relied upon the February 11, 2019 Insurer’s Examination Physiatry report by Dr. David Berbrayer, physiatrist,⁸ to support its position that the October 30, 2019 treatment plan was not reasonable and necessary. In his report, Dr. Berbrayer opined that no further treatment for the applicant’s accident related injuries would be beneficial and recommended the applicant engage in a self-directed home exercise program.⁹ Indeed, the applicant appears to have followed Dr. Berbrayer’s recommendation prior to the submission of the October 30, 2019 OCF-18. In a June 7, 2019 letter,¹⁰ Mr. Blando noted that since February 4, 2019, he had set out an extensive home exercise program for the applicant that was geared towards improving her vestibular system, and musculoskeletal system.¹¹ As such, the applicant had moved to a home-based exercise program, as recommended by Dr. Berbrayer, and provided no further evidence that she would benefit from additional passive treatment some seven years post-accident.

15On the evidence, I find that the applicant has not met her burden of proving on a balance of probabilities that the October 30, 2019 treatment plan is reasonable and necessary. Therefore, she is not entitled to this treatment plan.

Award

16Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

17As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

18As there are no benefits owing, no interest is payable.

CONCLUSION

19For the reasons outlined above, I find that the applicant is not entitled to payment of the June 19, 2019 OCF-6 or to the October 30, 2019 OCF-18. As a result, there is no basis upon which to consider an award, no interest is payable, and the application is dismissed.

Released: January 14, 2022

Lindsay Lake

Adjudicator

(a) the insurer gives the insured person a notice under subsection 39(1) stating that the insurer will pay the expense without a treatment and assessment plan;

(b) the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates;

(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for,

(i) drugs prescribed by a regulated health professional, or

(ii) goods referred to in clauses 15 (1) (d) to (f) and 16 (3) (h) to (j) with a cost of $250 or less per item; or

(d) the insurer agrees that the expense is essential for the treatment or rehabilitation of the insured person for goods or services referred to in clause 15 (1) (h) or 16 (3) (l) with a cost of $250 or less per item or service, as the case may be.

Footnotes

1. 1O. Reg. 34/10.
2. 2The four exceptions set out in s. 38(2) of the Schedule are as follows:
3. 3Clinical notes and records of Healthy Family Wellness Centre, Document Brief Delivered on Behalf of the Applicant, tab 55a.
4. 4Document Brief Delivered on Behalf of the Applicant, tab 43a.
5. 5Ibid.
6. 6Document Brief Delivered on Behalf of the Applicant, tab 30.
7. 7Document Brief Delivered on Behalf of the Applicant, tab 42a.
8. 8Written Submissions of the Respondent, tab 6.
9. 9Ibid. at pages 26-27.
10. 10Document Brief Delivered on Behalf of the Applicant, tab 28.
11. 11Ibid. at page 1.