Licence Appeal Tribunal File Number: 21-009764/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:
Olena Tesla-Johnson
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Adam Aldersley, Counsel
For the Respondent: Robert Bowman, Counsel
HEARD: By way of written submissions
OVERVIEW
1Olena Tesla-Johnson, the applicant, was involved in an automobile accident on June 18, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties attended a case conference on December 7, 2022, where a hybrid hearing was set. A number of issues were to be heard at a one-day videoconference hearing, and the remaining issues in dispute were set to be heard by way of written submissions.
3By way of Notice of Motion dated May 5, 2023, the applicant confirmed that the majority of issues in dispute had been resolved, and requested that the one-day videoconference hearing be vacated. By way of Motion Order May 12, 2023, the matter was set to proceed by way of written hearing, on the remaining issues in dispute.
ISSUES
4The remaining issues in dispute as specified in the Case Conference Report and Order are:
i. Is the applicant entitled to the amount of $1,760.22 ($3,207.28 less $1,447.06 approved) for other goods and services, proposed by Krista Eisner in a treatment plan (“OCF-18”) submitted May 4, 2020?
ii. Is the applicant entitled to the amount of $3,190.00 for chiropractic services, proposed by Dr. Jackie Rogers in an OCF-18 submitted on July 20, 2020?
iii. Is the applicant entitled to the amount of $1,869.80 ($4,765.75 less $2,895.95 approved) for other goods and services, proposed by Janet Trickett/Krista Eisner in an OCF-18 submitted August 25, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
5In an Agreed Statement of Facts submitted for this written hearing, the parties clarified that the issues in dispute relate to reimbursement of denied OCF-6s (Expense Claim Forms). The parties submit that the applicant submitted OCF-6s for massage treatment to the respondent, corresponding with the OCF-18s listed as issues in dispute above.
6In her submissions, the applicant does not specify an amount for the reimbursement of the OCF-6s, but requests that the Tribunal find that the incurred massage treatment specified in the OCF-6s, be found payable. She further requests that the issues then be referred back to the parties to calculate the amount payable.
RESULT
7I find that the applicant is not entitled to the expenses claimed, interest or an award.
ANALYSIS
Background
8By way of Agreed Statement of Facts, the parties submit that the applicant’s massage therapist, Ms. Krista Eisner, operates as a sole practitioner and is not registered with the Central Processing Agency, HCAI. As a massage therapist, Ms. Eisner is not a “Health Practitioner” as defined by the Schedule, and as such, is unable to sign Part 4 of an OCF-18. Therefore, OCF-18s were submitted on behalf of Ms. Eisner, by unaffiliated Health Practitioners. Dr. Jackie Rogers, chiropractor, submitted OCF-18s on May 4, 2020 and July 20, 2020 on behalf of Ms. Eisner. Ms. Janet Trickett, occupational therapist, submitted an OCF-18 on August 25, 2021. All of the OCF-18s specified that the massage services were to be provided by Ms. Eisner.
9The respondent approved the treatment plans, in accordance with the hourly rate for massage therapists, as specified in the FSCO Professional Services Guidelines. The applicant then underwent and incurred the approved massage therapy treatment, and submitted OCF-6s to the respondent for reimbursement. With respect to the May 4, 2020 OCF-18, the applicant submitted OCF-6s dated June 22, 2020, July 10, 2020 and July 29, 2020, for which it appears she was reimbursed by the respondent. With respect to the July 20, 2020 OCF-18, the applicant submitted OCF-6s dated August 27, 2020 and September 11, 2020, for which she was also reimbursed by the respondent.
10However, by way of letter dated September 21, 2020, the respondent advised that it would no longer directly pay the applicant for the services approved in the OCF-18. Rather, the respondent requested that the applicant’s
“health practitioner submit the appropriate forms through HCAI when incurring the approved services. If services approved and incurred by your health practitioner are not submitted via HCAI, the services will not be payable.”
11The applicant continued to undergo massage therapy treatment with Ms. Eisner, and submitted subsequent OCF-6s to the respondent for reimbursement. The respondent denied all of the OCF-6s submitted after September 21, 2020.
Parties’ positions
12The respondent submits that s. 49.1 of the Schedule and the Health Claims for Auto Insurance Guideline, Superintendent’s Guideline No. 02/18 (“Guideline”) set out the process for applying for payment of services received by an unlicensed provider. It relies on the Tribunal decision J.O. v Aviva Insurance Canada, 2020 CanLII 87982 (ON LAT) in support of its claim that with respect to unlicensed service providers, s. 49.1 requires that an OCF-21 be submitted to the insurer, after being submitted through HCAI. As such, the respondent argues that the applicant is not entitled to reimbursement for out of pocket expenses for OCF-18s that were submitted on HCAI, since OCF-21s have not been submitted.
13The applicant’s position is that she is entitled to reimbursement of the denied OCF-6s. She argues that the respondent had previously accepted the OCF-6s and unreasonably changed its position on September 21, 2020, without providing adequate explanation. The applicant further submits that s. 49.1 and the Guideline do not apply to Ms. Eisner, as they only apply to transactions between Participating Insurers and Participating Facilities. Given Ms. Eisner is not registered with HCAI, she cannot be a Participating Facility. The applicant cites Appendix 2 of the Guideline, which provides direction on invoices for goods and services that are subject to s. 49, and argues that the Appendix specifically states that s. 49 and 49.1 only apply to transactions with a Participating Facility.
14The applicant argues that Ms. Eisner refuses to join HCAI and that there is no statutory authority requiring a treatment provider to join HCAI. Given the consumer protection mandate of the Schedule, the applicant submits that she should be permitted to choose which health practitioner treats her and be reimbursed for such treatment.
Submission of OCF-6s, non-compliance with s. 49.1
15I do not agree with the applicant’s position that s. 49.1 of the Schedule and the Guideline do not apply to Ms. Eisner. The applicant references Appendix 2 of the Guideline, the section entitled “Invoices for Goods and Services that are Subject to this Guideline – SABS s. 49”. She notes that throughout this section when outlining the application of s. 49, reference is made to a “Participating Facility”, and that given that Ms. Eisner is not a Participating Facility, s. 49 would not apply. However, I note that this section of Appendix 2 also states that:
“Section 49.1 of the SABS sets out additional requirements on when the goods or services are provided by an unlicensed service provider. After submitting the invoice to the CPA, the Participating Facility must print off a copy of the invoice, obtain the appropriate signature, and give it to the insured person. The insured person must in turn send this copy of the invoice to his or her insurer.”
16From my reading of this section, it expressly contemplates services being provided by an unlicensed service provider, such as Ms. Eisner. Although it notes that services may be provided by an unlicensed provider, the section still states that the Participating Facility must submit the invoice to the CPA and provide a printed copy to the insured person, who would provide an executed copy to the insurer. Although Ms. Eisner is not a Participating Facility, each of the OCF-18s that underlie the OCF-6s in dispute were prepared by a Participating Facility, namely, Dr. Rogers, chiropractor, and Ms. Trickett, occupational therapist. Therefore, even if Ms. Eisner was unable to submit the OCF-21s through HCAI, the Appendix clarifies that the Participating Facility would submit this invoice.
17As such, I do not agree with the applicant’s position that Ms. Eisner is exempt from s. 49.1 of the Schedule, and that an OCF-21 is not required in this circumstance. From my reading of Appendix 2 of the Guideline, it is clear that an invoice is still required in situations where the services were provided by an unlicensed service provider. This is consistent with the reasoning in J.O. v Aviva. Further, although I agree with the applicant that her service provider cannot be forced to join HCAI, to the extent that payment for services is being requested pursuant to the Schedule, the procedural steps required by the Schedule would need to be followed. In this case, the procedural steps are outlined in s. 49.1 and Appendix 2 of the Guideline, which require the submission of an OCF-21.
18Although the applicant argues that the respondent did not provide adequate reasons for its change in position and subsequent refusal to accept OCF-6s, I find that its correspondence was clear. In its September 21, 2020 letter, the respondent expressly stated that it would no longer reimburse the applicant directly for the massage services, but that the appropriate forms must be submitted via HCAI. Section 49.1 clearly states that the form would be an invoice (OCF-21). As such, I do not find that the issue was that the applicant was unaware of which form to submit, but rather, that her treatment provider was unable to submit the required form.
19For the foregoing reasons, I find that the applicant is not in compliance with s. 49.1 of the Schedule, and therefore is not entitled to reimbursement for the denied OCF-6’s.
Interest and Award
20Pursuant to s. 51 of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided. As I have determined that no payment is owing, the applicant is not entitled to interest as a result.
21Pursuant to s. 10 of Regulation 664, the applicant is only entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit. The applicant is not entitled to an award because none of the withheld benefits were unreasonably withheld or delayed. No award is payable as a result.
ORDER
22For the foregoing reasons I find that the applicant is not entitled to reimbursement of the OCF-6s in dispute, interest or an award. The application is dismissed.
Released: October 31, 2023
__________________________
Ulana Pahuta
Adjudicator