20-014799/AABS

Licence Appeal Tribunal File Number: 20-014799/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:

Jennie De Lima

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Amanda Marshall

APPEARANCES:

For the Applicant: Elvis Viskovic, Paralegal

For the Respondent: Colin MacDonald, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jennie De Lima, the applicant, was involved in an automobile accident on September 1, 2018, 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, Economical Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute from the Case Conference Report and Order (CCRO) of October 14, 2021 are:

(i) Is the applicant entitled to payments for the cost of examinations for assessments proposed by Advanced Healthcare Management Inc. as follows:

(a) $1,638.50 for a Form 1/Activities of daily living form, dated on December 3, 2018, submitted on January 29, 2019 and denied on February 8, 2019;

(b) $2,486.00 for a Neurological Assessment, dated on December 3, 2018, submitted on January 29, 2019 and denied on February 8, 2019;

(c) $2,486.00 for an Orthopaedic Assessment, dated and submitted on January 29, 2019 and denied on February 8, 2019; and

(d) $2,486.00 for a Psychological Assessment, dated December 13, 2018, submitted on January 30, 2019 and denied on February 8, 2019?

(ii) Is the applicant entitled to receive medical benefits recommended as follows:

(a) $3,641.09 for psychological services, recommended y Advanced Healthcare Management Inc., dated for February 28, 2019, submitted on May 3, 2019 and denied on May 17, 2019; and

(b) $2,285.82 for chiropractic, physiotherapy and massage services, recommended by Health Bound Health Network Inc., dated for July 19, 2019, submitted on July 24, 2019 and denied on July 26, 2019?

(iii) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the Applicant?

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

3The applicant wrote to the Tribunal on May 31, 2022, and withdrew the following issues as listed above: i.(a), i.(b), i.(c), and ii.(a).

RESULT

4I find the applicant is not entitled the treatment plan for physical treatment services (chiropractic, physiotherapy and massage), the cost for the psychological assessment, interest, or an award.

ANALYSIS

The applicant is not entitled to either of the treatment plans.

5To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

6The applicant submits that the psychological assessment and the chiropractic treatment are reasonable and necessary and relies on the clinical notes and records from family doctors’ Dr. Kenneth Florence and Dr. David Morgenthau that found she had bilateral shoulder pain, neck and back pain, as well as the psychological report of Erin Langis, Psychologist.

7The respondent submits that neither treatment plans were found to be reasonable and necessary, or payable based on the Insurer Examination (“IE”) reports both dated September 17, 2019 of Dr. John Lee, Psychologist, and Dr. Hashmat Kahn, General Practitioner. Both doctors found the applicant did not sustain injuries that warrant removal from the Minor Injury Guideline (MIG) and the policy limits of $3,500.00.

8The respondent states that the applicant has received $3,492.76 in medical/rehabilitation benefits to date and, therefore, her limits are exhausted. Further, the respondent argues the applicant did not provide any submissions on why she should be removed from the MIG and therefore, remains in such.

9I see no reason to challenge the respondent’s submission that the applicant is being treated within the MIG and the benefits have been exhausted. In the applicant’s reply to the respondent’s claim, the applicant acknowledged that the issue of the MIG was not raised at the case conference. The applicant did not dispute that she was being treated within the MIG nor that her benefits have been exhausted.

10The parties each have an onus of making sure the correct issues are before the Tribunal. For example, if the applicant claims accident benefits that would exceed the $3,500 limit for minor injuries, then she bears the responsibility to have the issue of whether she should be removed from the MIG be a part of the dispute. That would put the respondent on notice that the issue of the MIG determination is in play. Had that been done, then the applicant would naturally bear the burden of proving on a balance of probabilities that she should be removed from the MIG.

11The applicant’s application was filed on December 15, 2020. Under the “Issues in Dispute” section of the application, the applicant checked off “no” beside issue number two which reads, “Does the dispute involve whether or not the Claimant’s injuries fall within the Minor Injury Guidelines (MIG)?”.

12Subsequent to her filing the application and leading up to this hearing, the applicant had ample opportunity to have the issue of the MIG added to this hearing. All parties attended at the case conference on October 7, 2022. The applicant could have asked the adjudicator to add the issue of whether she should remain within the MIG during the case conference. She did not. On December 22, 2021, the applicant filed a Notice of Motion seeking a change to the CCRO dated October 14, 2021 as she claimed it was inaccurate and not reflective of the discussions and agreements made with respects to productions requests during the case conference. The applicant did not seek to amend the issues in dispute at that time, or any other time.

13I find that the issue of whether the applicant should be removed from the MIG is not properly before me. Even if the applicant submitted any evidence that might be relevant to advance that position, the issue is not before me and to decide that issue in this hearing in these circumstances would be procedurally unfair to the respondent. Accordingly, I make no decision whether she should be removed from the MIG. Since the MIG limits have been exhausted, I do not need to conduct an analysis of the treatment plans in dispute.

The respondent is not liable to pay an award.

14Section 10 of Regulation 664 provides that an award may be granted if the respondent unreasonably withheld or delayed payments.

15While the applicant contends that the respondent took too long in providing the s. 44 IE psychological report and therefore, the respondent is liable to pay an award, the test is whether the respondent unreasonably withheld or delayed payment. As the applicant has received the maximum funding allowed under the MIG limits, I find there was no payment unreasonably withheld or delayed and as a result no award is payable.

The applicant is not entitled to interest.

16Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

17As no benefits are payable, no interest is payable.

CONCLUSION

18The applicant is not entitled to physical treatment services (chiropractic, physiotherapy, and massage), the cost of the psychological assessment, interest, or an award.