Citation: Creed v. Northbridge General Insurance Company, 2023 ONLAT 21-004423/AABS

Licence Appeal Tribunal File Number: 21-004423/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:

Amanda Creed

Applicant

and

Northbridge General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Amanda Creed, Applicant

Tina Lubman, Paralegal

For the Respondent:

Northbridge General Insurance Company

Jennifer McGlashan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Amanda Creed, the applicant, was involved in an automobile accident on March 30, 2019, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that she sustained multiple injuries as a result of the accident. The applicant underwent surgical repair of her leg to internally stabilize her fracture. Following surgery to address the accident-related injuries, the applicant continued outpatient care until she was discharged on June 25, 2019. Her Orthopaedic Surgeon discharged the applicant on September 17, 2019.

3At the time of the accident the applicant was employed as an executive assistant, at the Upper Grand District School Board by the Superintendent of Education. The applicant returned to full-time employment duties on September 3, 2019.

Preliminary Issues

4Sections 38(8), (9) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans, with specific consequences if they fail to comply. Under section 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If the insurer refuses to pay for the benefit, the insurer must state the medical and other reasons why the insurer considers the goods and services not to be reasonable and necessary.

5The applicant submits that the respondent’s denials fail to comply with section 38(8) of the Schedule. The applicant references tabs 7, 15, 23 and 32 of her documentary evidence as including the respondent’s letters of denial that are in violation of section 38(8) without explanation or illustration of any omission. I do not agree based on the submissions and evidence provided by the applicant that there is a violation of section 38(8) of the Schedule by the respondent. I note that the letter of denial referred to by the applicant in tab 7, makes reference to an attachment that is not included in the applicant’s evidence. In addition, the letter of denial referenced in tab 15 by the applicant in her submissions, is missing the attachment referencing an explanation for the denial. Both tabs 23 and 32 referenced by the applicant in her submissions, do not include an explanation directing me to the contended omission submitted as constituting a violation of the Schedule. The applicant has failed to meet the burden of illustrating how the respondent denials violate section 38(8).

ISSUES

6The issues in dispute are:

a) Is the applicant entitled to a medical benefit in the amount of $6,265.93 for physiotherapy services recommended by Health Bound Health Network Inc. in a treatment plan/ OCF-18 dated on November 18, 2019?

b) Is the applicant entitled to a medical benefit in the amount of $1,623.96 for physiotherapy services recommended by Arbour Rehabilitation Centre submitted in a treatment plan/OCF-18 dated on March 5, 2021?

c) Is the applicant entitled to the cost of examination in the amount of $2,460.00 for a neuro-optometric assessment recommended by 101 Assessments in a treatment plan/OCF-18 dated on November 18, 2019?

d) Is the applicant entitled to the cost of examination in the amount of $2,460.00 for an orthopaedic assessment recommended by 101 Assessments in a treatment plan/OCF-18 dated November 28, 2019?

e) Is the applicant entitled to the cost of an examination in the amount of $2,460.00 for a functional abilities evaluation recommended by 101 Assessments submitted in a treatment plan/OCF-18 dated on December 4, 2019?

f) Is the respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

g) Are the parties entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and the Fire Safety Commission Common Rules of Practice and Procedure, Version 1, October 2, 2017, as amended February 7, 2019?

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

RESULT

7The applicant is not entitled to $6,265.93 for physiotherapy, proposed by Health Bound Health Network Inc. in a treatment plan/ OCF-18, dated on November 18, 2019.

8The physiotherapy services recommended by Arbour Rehabilitation Centre in the amount of $1,623.96, submitted in a treatment plan/OCF-18 dated on March 5, 2021, is reasonable and necessary pursuant to the Schedule and has already been approved by the respondent.

9The applicant is not entitled to the cost of an examination in the amount of $2,460.00 for a neuro-optometric assessment recommended by 101 Assessments in a treatment plan/OCF-18 dated on November 18, 2019.

10The applicant is not entitled to the cost of examination in the amount of $2,460.00 for an orthopaedic assessment recommended by 101 Assessments in a treatment plan/OCF-18 dated November 28, 2019.

11The applicant is not entitled to the cost of an examination in the amount of $2,460.00 for a functional abilities evaluation recommended by 101 Assessments submitted in a treatment plan/OCF-18 dated on December 4, 2019.

12The applicant is not entitled to interest on any overdue payment of benefits respecting the five Treatment Plans/ OCF-18s described except the treatment plan in the amount of $1,623.96 proposed by Arbour Rehabilitation Centre and dated March 5, 2021, submitted on March 12, 2021, which was approved by the respondent on August 26, 2021.

13The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.

14The parties are not entitled to costs pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and the Fire Safety Commission Common Rules of Practice and Procedure, Version 1, October 2, 2017, as amended February 7, 2019.

ANALYSIS

Legal Analysis of Treatment Plans

15The onus is on the applicant to prove on a balance of probabilities that the expenses are reasonable and necessary pursuant to section 15 of the Schedule. Section 14 and 15 of the Schedule state that an insurer shall pay medical benefits to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident, and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident.

16The test to determine causation is the “but for” test, signifying that causation is a factual determination made on a balance of probabilities: See Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident, the applicant would not have suffered the injuries. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.

17The treatment plan recommended by Keira Stroyan, Physiotherapist, of Arbour Rehabilitation Centre Ltd., in the amount of $1623.96, dated March 5, 2021, has as its goals pain reduction, increased range of motion, a return to the activities of normal living, and a return to pre-accident work activities. The treatment plan includes a documentation support activity fee, total body assessment, multiple body therapy a planning service fee, documentation support activity fee and Vox Neuro assessment.

18The respondent submits that the treatment plan recommended by Keira Stroyan, Physiotherapist, of Arbour Rehabilitation Centre Ltd., dated March 12, 2021, in the amount of $1623.96, was approved by the respondent on August 26, 2021, and the issue of the treatment plan being reasonable and necessary is moot. The OCF-9 Explanation of Benefits revised August 26, 2021, which is included in the applicant’s evidence refers to the section 44 IE neurology in-person examination of Dr. Verity John, which took place on July 15, 2021, with the report of Dr. Verity John following on August 16, 2021, as described in the respondent’s explanation of benefits. The respondent did not approve the treatment plan on March 26, 2021, indicating a neurology insurer’s examination would follow. The insurance examination originally scheduled on May 27, 2021, was re-scheduled to July 15, 2021. Dr. Verity John’s opinion was that the treatment plan completed by Keira Stroyan is medically reasonable and necessary as a direct result of the injuries sustained in the accident. Because the treatment plan has been approved on August 26, 2021, as a reasonable and necessary expense for medical benefits by the respondent insurer, I am not required to address this issue and I will not legally analyse the respondent determination.

19The physiotherapy treatment plan has as its goals pain reduction, increased range of motion, increase in strength, a return to the activities of normal living, a return to modified work activities, and a return to pre-accident work activities. The treatment plan includes therapy, exercise, and mobilization, in addition to manipulation of multiple body sites. There is a preparation service of $99.75 and a documentation support activity fee of $200.00 included.

20The respondent submits that this treatment plan is a duplicate of a treatment plan dated August 29, 2019, which the respondent previously approved, but, which has not been incurred by the applicant. The respondent submits that because the duplicate treatment plan was not incurred, the treatment plan in dispute should be denied. The applicant in reply submissions agrees with the respondent’s contention that the earlier treatment plan for physiotherapy was only partially incurred before the applicant applied by means of the disputed treatment plan for more of the same type of medical services. I agree with the respondent that the fact that the applicant is submitting a treatment plan for the very services previously approved but not incurred, notionally weighs against the reasonableness and necessity of the applicant receiving approval with a new treatment plan before using the services offered in the already approved treatment plan for the same services. It is not reasonable and necessary for the respondent to approve more of the same services, which have not been incurred by the applicant in a previous treatment plan.

21For the reasons that follow, I find the physiotherapy services treatment plan is not a reasonable and necessary expense.

22The respondent relies on the Section 44 IE Orthopaedic Assessment Report by Dr. R.J.F. Saplys dated February 5, 2020, in support of its position that this physiotherapy treatment plan is not reasonable and necessary. The assessment by Dr. R.J.F. Saplys was completed to obtain a medical opinion on three of the treatment plans in dispute, which is this physiotherapy treatment plan; the treatment plan recommended by Wayne Coghlan dated December 4, 2019, in the amount of $2460.00; and the treatment plan recommended by Dr. Tajedin Getahun, Orthopaedic Surgeon dated November 28, 2019.

23In Dr. Saplys’ assessment, he opines following an interview with the applicant, examination and document review, that the applicant suffered a closed displaced fracture of her right tibia and fibula necessitating surgical repair. Dr. Saplys opines that the applicant suffered soft tissue injuries in her neck, back and shoulders, including musculoligamentous strains of the paracervical and paralumbar structures. Dr. Saplys opines that the applicant achieved maximum medical recovery from an orthopaedic perspective at the time of the assessment, ten months following the surgical repair.

24Dr. Saplys opines that the physiotherapy treatment is not reasonable and necessary as a result of the injuries sustained in the accident. Dr. Saplys states in his assessment that, as of September 2019, the applicant had been discharged from the care of her treating orthopaedic surgeon, and that the applicant underwent six months of facility-based treatment sufficient to address the type of injuries sustained and caused by the accident. Dr. Saplys opines that the facility-based treatment proposed in the treatment plan is not a reasonable and necessary expense incurred by the applicant as a result of the accident.

25The treatment plan recommended by Dr. Tajedin Getahun, Physician of 101 Assessments, dated November 28, 2019, has as its goals pain reduction, increase of strength, increased range of motion, a return to the activities of normal living, and a return to pre-accident work activities. The treatment plan includes an orthopaedic assessment and completion of a treatment plan/ OCF-18.

26Dr. R.J.F. Saplys opines respecting the treatment plan for an orthopaedic assessment dated November 28, 2019, in the amount of $2,460.00, that it is not a reasonable and necessary expense since the applicant has been treated and discharged from the care of an orthopaedic surgeon in September 2019. Dr. R.J.F. Saplys opines that an orthopaedic assessment would be considered neither reasonable nor necessary since the applicant’s accident-related injuries had resolved sufficiently to permit the applicant’s discharge by her Orthopaedic Surgeon. I agree with the opinion of Dr. R.J.F. Saplys that the treatment plan is neither reasonable nor necessary. The applicant has not provided medical evidence in the form of clinical notes and records (CNR’s) from the family physician Dr. David Johnson demonstrating that an orthopaedic assessment following the applicant’s discharge from treatment by her Orthopaedic Surgeon, is a reasonable and necessary expense.

27The treatment plan recommended by Wayne Coghlan, for a functional abilities evaluation dated December 4, 2019, in the amount of $2460.00, has as its goals a return to the activities of normal living, and a return to pre-accident work activities. The treatment plan includes therapy, exercise, and mobilization, in addition to manipulation of multiple body sites. There is, in addition, a preparation service of $99.75 and a documentation support activity fee of $200.00.

28In the Section 44 IE Examination Orthopaedic Assessment by Dr. R.J.F. Saplys, he opines that the treatment plan completed by Wayne Coghlan, proposing a functional abilities evaluation is not a reasonable and necessary medical benefit considering that the applicant returned to her position as an executive assistant for the Superintendent of Education, at the Upper Grand District School Board, with regular hours on September 3, 2019, and that she was discharged from treatment by her Orthopaedic Surgeon on September 17, 2019. Dr. R.J.F. Saplys also determines that the treatment plan is neither reasonable nor necessary since the applicant, based on his examination had reached maximal medical recovery.

29I agree with the finding of Dr. R.J.F. Saplys, in his Section 44 IE Examination Orthopaedic Assessment, that the treatment plan by Wayne Coghlan, proposing a functional abilities evaluation is not a reasonable and necessary medical benefit considering the applicant returned to her position as an executive assistant for the Superintendent of Education, at the Upper Grand District School Board, full-time on September 3, 2019. I am further persuaded that the treatment plan is neither reasonable or necessary because by the time of the orthopaedic assessment by Dr. R.J.F. Saplys, the applicant had reached maximal medical recovery and she had been working full-time since September 3, 2019, at her pre-accident employment without interruption.

30The treatment plan recommended by Wayne Coghlan, Chiropractor, for a neuro-optometric assessment, in the amount of $2460.00, dated November 18, 2019, has as its goals a return to the activities of normal living, and a return to pre-accident work activities. The treatment plan includes a neuro-optometric assessment and a fee for the completion of the treatment plan. Dr. David A.J. Josephson, the applicant’s family doctor, wrote a letter dated April 25, 2019, stating that the applicant required oculo-visual therapy for post-concussive injuries, but he does not recommend a neuro-optometric assessment.

31The explanation of benefits provided by the respondent states that the treatment plan for a neuro-optometric assessment, is neither reasonable nor necessary given medical evidence showing no acute intracranial process seen on a CT scan completed on May 3, 2019, in addition to a consideration of the family physician Dr. David Jacobson’s recommendations in his clinical notes and records of May 9, 2019, restricted to a recommendation for massage therapy for post-leg fracture and whiplash type injury as opposed to recommending a neuro-optometric assessment. In addition, I find it significant that although Dr. David A.J. Josephson, the applicant’s family doctor, describes post-concussional syndrome in the OCF-3, disability certificate, dated April 6, 2019, he does not mention issues with the applicant’s vision.

32An Ophthalmologist is a physician who diagnoses and treats eye injuries, and disorders. The Insurer’s Examination Section 44 IE Ophthalmological Assessment dated February 27, 2020 (the report dated March 10, 2020), completed by Dr. Robert Adam, includes a documentary review of the noted head CT scan of May 2019, which shows no acute intracranial process; in addition, Dr. Adam finds following his examination of the applicant, no ophthalmological diagnoses relating to the index accident. The CT scan shows no evidence of hemorrhage, hydrocephalus or infarction. Dr. Adam opines following an ophthalmological examination of the applicant and document review that there was no need for any therapeutic intervention of the applicant’s oculo-visual system. Dr. Adam finds that the applicant’s recent corrective eyewear is age-related as she was 52 years of age at the time of the examination and the corrective eyewear has no relationship to the accident. He opines that the treatment plan for a neuro-optometric assessment is neither reasonable nor necessary.

33Dr. Robert Adams found no objective organic pathology that could be identified to substantiate the applicant’s reported eye symptoms and headache. In addition, there was no formal diagnosis from an ophthalmological perspective, as the applicant’s eye examination and binocular visual function were normal. Dr. Adam finds that there is no need for any therapeutic intervention with respect to the applicant’s oculo-visual system. Dr. Robert Adam opines that the applicant obtaining corrective eyewear for a mild refractive error as well as age related presbyopia, as the applicant was 52 years of age at the time of examination, is not caused by or related to the accident.

34I find that the treatment plan dated November 18, 2019, proposing a neuro-optometric assessment is neither a reasonable nor necessary medical benefit based on the opinion of Dr. Adam to the effect that following an ophthalmological examination, Dr. Adam found that there was no need for any therapeutic intervention of the applicant’s oculo-visual system; that the applicant’s recent corrective eyewear is age-related as she was 52 years of age at the time of the examination and the corrective eyewear has no causal relationship to the accident. The applicant has failed to meet her burden showing that the treatment plan dated December 11, 2019, proposing a neuro-optometric assessment is a reasonable nor necessary medical benefit which the respondent should pay for.

INTEREST

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is not entitled to the treatment plans, with the exception of the treatment plan dated March 12, 2021, approved by the respondent on August 26, 2021, following insurer’s examinations, in the amount of $1,623.96, no interest is payable by the respondent.

AWARD

36The applicant submits an award should be imposed against the respondent for its improper withholding of the benefits pursuant to the Schedule and the policy and consumer protection objectives of insurance law.

37For the following reasons, the applicant’s request for an award is denied. Regulation 664 under the Insurance Act states that the Tribunal may award a lump sum of up to 50 percent of the amount to which the applicant was entitled if the respondent unreasonably withheld or delayed the payment of benefits.

38However, the applicant has not provided any submissions or evidence of unreasonable withholding or delayed payment of benefits by the respondent. The Tribunal has denied four of the treatment plans as neither reasonable nor necessary and, as described, the treatment plan which the Tribunal found reasonable and necessary had already been approved by the respondent on August 26, 2021.

39The onus is on the applicant to prove on a balance of probabilities an award is owing, and the applicant has not done so in this case; therefore, no award is payable.

COSTS

40The respondent submits that it is entitled to costs in the proceeding since the applicant by commencing the proceeding had no prospect of success and acted in a manner which has been unreasonable, frivolous and vexatious. The respondent submits that the applicant was aware when the proceeding was commenced that there were issues in dispute which had been previously determined favourably. The one issue in dispute which had been determined and the treatment plan approved by the respondent insurer on August 26, 2021, has been addressed in the reasons for decision. The treatment plan was approved following insurer’s examinations, in the amount of $1,623.96 for physiotherapy services recommended by Arbour Rehabilitation Centre dated on March 12, 2021.

41Section 17.1 of the Statutory Powers and Procedures Act (“SPPA”); and Rule 19.1 of the Common Rules of Practice and Procedure empower the Tribunal to order a party to pay another party’s costs in a proceeding according to the rules made under section 17.1(4). Section 17.1(2) states the Tribunal shall not order a party to pay costs unless the conduct or course of conduct of that party has been unreasonable, frivolous or vexatious, or the party has acted in bad faith.

42I do not find that the applicant’s conduct or course of action demonstrates anything approximating being unreasonable, frivolous or vexatious nor has the applicant acted in bad faith. The error with respect to the treatment plan already approved in the explanation of benefits dated August 26, 2021, considered with the other treatment plans does not raise the conduct of the applicant to the standard of unreasonable, frivolous or vexatious nor acting in bad faith. The respondent did not demonstrate that the remaining issues in dispute had already been decided as alleged. The respondent’s application for costs is dismissed.

ORDER

43I find that the applicant is not entitled to the treatment plans in dispute with the exception of the treatment plan approved by the respondent on August 26, 2021, addressed in these reasons.

44Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

45The applicant is not entitled to an award.

46The respondent’s application for costs is dismissed.