Citation: Macintosh v. Intact Insurance Company, 2024 CanLII 10511

Licence Appeal Tribunal File Number: 22-001364/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:

Tyler Macintosh

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Sean Giovannetti, Counsel

For the Respondent: Cole O'Reilly, Counsel

HEARD: By Written Submissions

OVERVIEW

1Tyler Macintosh (the “applicant”) was involved in an automobile accident on May 25, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to the services proposed by Functionability Rehabilitation Services, as follows: i. $4,489.92 for occupational therapy services, in a treatment plan dated September 23, 2021, and denied December 29, 2021; ii. $4,593.21 for other goods and services, in a treatment plan dated October 28, 2021, and denied January 25, 2022; and iii. $1,779.04 for an attendant care needs assessment, in a treatment plan submitted March 23, 2022, and denied March 23, 2022?

2. Is the applicant entitled to $2,419.18 for physiotherapy services proposed by Cornwall Physiotherapy, in a treatment plan dated November 15, 2021, and denied January 25, 2022?

3. Is the applicant entitled to $4,202.53 for other goods and services proposed by Cotton Mill Rehab, in a treatment plan dated October 13, 2021, and denied January 25, 2022?

4. Is the applicant entitled to interest on any overdue payment of benefits?

3In his written hearing submissions, the applicant seeks to add the issue of whether the respondent is liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payment of the treatment plan submitted on March 23, 2022 for an attendant care needs assessment in the amount of $1,779.04.

RESULT

4For the reasons that follow, I find that:

1. The applicant is entitled to $1,567.47 for yoga therapy, $2,594.04 for occupational therapy services, and $1,496.75 for an attendant care needs assessment, plus HST (if applicable), with interest pursuant to s. 51 of the Schedule.

2. The applicant is not entitled to the balance of the treatment plans in dispute nor interest.

3. The respondent is not liable to pay an award.

PROCEDURAL ISSUE

Request for the Tribunal to draw an adverse inference

5The applicant requests that the Tribunal draw an adverse inference against the respondent for failing to produce all drafts, correspondence, and clinical notes and records of its insurer examination assessors, Dr. David Simon and Janelle MacKinnon, as it failed to provide these records within 90 days from the date of the case conference as ordered by the Case Conference Report and Order dated December 19, 2022. The applicant argues that no or minimal weight should be given to the opinions of Dr. Simon and Ms. MacKinnon.

6The respondent submits that it produced correspondence and clinical notes and records received by the third-party assessment company, Focus Assessments, to the applicant. Further, it advised the applicant on August 11, 2023 that Dr. Simon and Ms. MacKinnon did not have any clinical notes and records for their assessments with the applicant.

7I am not persuaded by the applicant’s argument that the Tribunal should draw an adverse inference and give no or minimal weight to the opinions of Dr. Simon and Ms. MacKinnon in the circumstances. There is no evidence that the alleged productions exist and that it is being withheld by the respondent. Further, there is no evidence that the applicant will be prejudiced if the Tribunal considers this evidence. Accordingly, the opinions of Dr. Simon and Ms. MacKinnon will be considered and given the weight deemed appropriate by the Tribunal.

Request to add the issue of an award as an issue in dispute

8Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit.

9The applicant submits that the respondent’s refusal to pay for the treatment plan for an attendant care needs assessment after requiring the applicant to submit an updated Form 1 was unreasonable. The applicant seeks an award of 50 per cent of the total amount of the treatment plan plus interest.

10The respondent objects to the issue of an award being added on the basis that it was not raised prior to the written hearing. The respondent submits that the Tribunal has previously refused to consider a claim for an award where it was not added as an issue in dispute at the case conference, as doing so is not procedurally fair to the respondent. The respondent relies on S.S. v. Scottish & York, 2020 CanLII 45506 (ON LAT). The respondent further submits that it appropriately managed the applicant’s claim, and an award is not justified.

11On reply, the applicant argues that the bar to add an award as an issue in dispute is very low, and that notice is not required before a hearing in order for an adjudicator to consider the issue of an award. Further, an adjudicator has the inherent jurisdiction to add the issue of an award at any part of the hearing process, even if not raised by the parties. The applicant relies on F.A. v. Aviva General Insurance, 2018 CarswellOnt 11175, Waldock v. State Farm Mutual Automobile Insurance Company, 2019 ONSC 6105 [Waldock], and Ali v. The Co-operators General insurance Company, 2023 CarswellOnt 2577.

12In the present case, I am prepared to add the issue of an award as an issue in dispute. As noted by the applicant, I have inherent jurisdiction to add the issue of an award at any part of the proceeding. Further, in Waldock, the Divisional Court held at paragraph 49 that “a special award is always a possibility if the arbitrator finds that the insurer unreasonably withheld or delayed the payments of benefits.” As such, it falls within my discretion to add the issue of an award to this application.

13Further, I find that it is not procedurally unfair to the respondent to add the issue of an award. Here, the respondent had the opportunity to respond to the applicant’s submissions, and it exercised its participatory rights by delivering written hearing submissions on the issue of an award. This is consistent with the principles of procedural fairness.

14Accordingly, the Tribunal will consider the issue of whether the respondent unreasonably withheld or delayed payment of the treatment plan for the attendant care needs assessment.

ANALYSIS

The Treatment Plans

15To 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.

16The applicant submits that the disputed treatment plans are reasonable and necessary. He argues that treatment is reasonably required if the treatment helps to relieve physical pain, to manage symptoms, and to improve function. The applicant relies on W.(L.) v. Co-operators General Insurance, 2016 CarswellOnt 21010 and J.R. v. Certas Home Insurance Company, 2018 CarswellOnt 4019.

17The applicant indicates that he was involved in two automobile accidents prior to the subject accident. In the first accident, which occurred on August 13, 2015, the applicant suffered a concussion, dental trauma, a right knee meniscus tear, and sprains/strains of his cervical spine and lumbar spine. He was deemed catastrophically impaired with two Class 4 marked impairments. In the second accident, which occurred on December 4, 2016, the applicant suffered another concussion, myofascial injuries with worsening of chronic pain, and a right shoulder rotator cuff tear. As a result of the second accident, the applicant was unable to continue operating his landscaping business.

18As for the subject accident, the applicant notes that he sustained the following injuries: whiplash associated disorder (Grade I), concussion, and sprain/strains of the thoracic spine, cervical spine, lumbar spine, and left knee. The concussion, cervical muscle strain, and lumbar muscle strain were pre-existing injuries that were exacerbated in the subject accident.

19The applicant relies on two yoga therapy progress reports dated July 22, 2021 and October 28, 2021 respectively, both completed by Christine Nye, registered yoga teacher, the clinical notes and records of Cornwall Physiotherapy, an in-home functional assessment report dated June 15, 2021 completed by Tori McQuat, occupational therapist, an occupational therapy progress report dated September 28, 2021 completed by Grace Crolla, occupational therapist, a psychological assessment report dated May 10, 2021 completed by Dr. Lindsay MacLeod, psychologist, and a neuropsychological assessment report dated March 30, 2022 completed by Dr. Jordan Ali, neuropsychologist.

20In response, the respondent submits that the disputed treatment plans are not reasonable and necessary. The respondent argues that an insurer may deny a treatment plan for ongoing treatment where it has provided little improvement to date and continued treatment will not be substantially different, even where it provides some temporary relief to an insured. The respondent relies on J.S. v. Aviva Insurance Canada, 2020 CanLII 80286 (ON LAT).

21The respondent further relies on various insurer examination reports including three orthopaedic assessment reports dated December 27, 2021 and an orthopaedic paper review assessment report dated September 22, 2022, all completed by Dr. David Simon, two occupational therapy reports dated December 13, 2021 and September 22, 2022 respectively, both completed by Janelle MacKinnon, occupational therapist, and two surveillance reports dated May 25, 2022 and July 20, 2022 respectively, both completed by Xpera Investigations.

The applicant is entitled to yoga therapy

22I find that the applicant has demonstrated, on a balance of probabilities, that yoga therapy is reasonable and necessary. However, I find that the applicant has failed to establish that the overall cost of the treatment plan dated October 28, 2021 for yoga therapy in the amount of $4,593.21 is reasonable and necessary. I find that the amount payable for the treatment plan is $1,567.47.

23The treatment plan proposes twelve weekly 90-minute sessions, documentation, planning, and provider travel time. The goal of the treatment plan is to reduce pain, to increase range of motion, to increase strength, to improve symptom management with respect to pain, mood, and stress, to return to activities of normal living, to facilitate improved mobility and resumption of routines with mindfulness and safe movement, and to facilitate meaningful leisure activity. In the additional comments, it is noted that the applicant is continuing to develop an orientation towards self-reliance and taking the time for mindfulness, self-care, and compassion, which continues to be important for his rehabilitation both physically and mentally.

24I find that yoga therapy is reasonable and necessary from a psychological perspective. Dr. MacLeod indicated that following the accident, the applicant reported symptoms of persistent pain, low mood, headaches, reduced cognitive functioning, and anxiety. She diagnosed the applicant with major depressive disorder (recurrent episodes, moderate, with anxious distress), somatic symptom disorder, other specified trauma and stressor related disorder (subthreshold PTSD), and query sleep disorder. She also noted that research strongly supports mindfulness-based somatic practices, such as yoga and exercise, for improving the management of pain, anxiety, and mood. Further, several recent meta-analyses have been conducted on the positive effects of exercise and yoga on psychological disorders, psychological health, and quality of life.

25I also agree with the applicant and find that yoga therapy is reasonably required if it helps with symptom management and has the goal of increasing function. Ms. Nye indicated that the applicant had reported that weekly yoga therapy had allowed him to better manage his pain and anxiety symptoms and to be engaged in gentle physical activity. The applicant demonstrated that he was progressing in the treatment program, and the goal of continued treatment was to use yoga breathing and meditation techniques to help manage mood, stress, depression, and anxiety, and to use gentle movements to help build stability, strength, and flexibility for whole body wellness within the applicant’s tolerance level.

26Additionally, I note that the respondent has not directed me to any medical evidence to support that yoga therapy is not reasonable and necessary from a psychological perspective. Rather, the respondent relies primarily on Dr. Simon’s finding that from a strictly orthopaedic perspective, the treatment plan is not considered reasonable and necessary as the applicant has reached maximum medical recovery of his accident-related orthopaedic injuries. However, Dr. Simon deferred the determination of whether any component of the treatment plan was reasonable and necessary to address non-orthopaedic diagnoses to a more appropriate evaluator such as a psychologist, physiatrist, or chronic pain physician.

27As for the cost of the treatment plan, I find that the applicant’s submissions and evidence are lacking in demonstrating that the overall cost is reasonable and necessary. The applicant has provided no evidence or submissions to suggest that the hourly rate of $70.00 per hour is reasonable and necessary for a yoga therapist, or that the cost of the provider’s travel time is payable under the Schedule.

28It is well established that the Professional Services Guidelines issued by the Financial Services Commission of Ontario as Superintendent’s Guideline No. 03/14 (the “PSG”) sets out the maximum expenses payable for a range of healthcare services under the Schedule. Although the PSG does not provide an hourly rate for a yoga therapist, it provides that the maximum hourly rate for unregulated providers is $58.19 per hour. Given that the PSG is silent on the maximum hourly rate for yoga therapist, it is left to the parties to determine what the acceptable hourly rate would be, and if they are unable to do so, the Tribunal must decide.

29There is no evidence to support that the yoga therapist should be paid the higher hourly rate of $70.00 per hour in the circumstances, and I find that $58.19 per hour is a reasonable hourly rate.

30I further find that the provider’s travel time is not payable under the Schedule. Pursuant to s. 15(2)(c) of the Schedule, an insurer is not liable to pay medical benefits for transportation expenses other than authorized transportation expenses.

31Accordingly, I find that the applicant is entitled to $1,567.47 plus HST (if applicable) for yoga therapy.

The applicant is not entitled to chiropractic treatment and physiotherapy

32I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated October 13, 2021 for chiropractic treatment in the amount of $4,202.53 and the treatment plan dated November 15, 2021 for physiotherapy in the amount of $2,419.18 are reasonable and necessary.

33The treatment plan for chiropractic treatment proposes 29 mobilization sessions and 16 therapy sessions. The goal of the treatment plan is to reduce pain, increase range of motion, increase strength, improve motor control, return to activities of normal living, return to pre-accident work activities, and to return to modified work activities.

34The treatment plan for physiotherapy proposes 32 therapy sessions, documentation, K-tape (4 pack), tuff skin, and a brace. The goal of the treatment plan is to reduce pain, to increase range of motion, to increase in strength, to return to activities of normal living, to maintain the applicant’s current functional mobility level, and to improve mobility generally by using bilateral patellar tracking braces.

35I find that there is insufficient evidence to support that these treatment plans are reasonable and necessary. Although the treatment plan dated October 13, 2021 and a clinical note dated November 21, 2021 from Cornwall Physiotherapy indicate that the applicant has improved with treatment, the applicant’s objective medical evidence is lacking in demonstrating that further facility-based physical therapy is reasonably required to address the applicant’s accident-related physical injuries. Further, diagnostic imaging of the applicant’s physical injuries was unremarkable, and there are no contemporaneous records of the applicant’s ongoing physical complaints as his family physician’s clinical notes and records are not part of the evidentiary record.

36Additionally, the applicant was examined by Dr. Simon who diagnosed him with the following accident-related injuries: whiplash associated disorder type II with aggravation of pre-existing chronic neck pain, myofascial sprain/strain of the left shoulder with aggravation of probable pre-existing rotator cuff derangement, left arm contusion, and myofascial sprain/strain of lumbar spine with aggravation of pre-existing chronic back pain. In his report dated December 27, 2021, Dr. Simon concluded that the applicant had reached maximum medical recovery with respect to his accident-related orthopaedic injuries and that there was no indication for ongoing facility-based physical therapy with respect to those injuries.

37Moreover, I find that participation in a home exercise program would be more appropriate. Indeed, Dr. Simon indicated that the applicant would benefit generally from a daily program of home exercises that focuses on postural optimization, stability, general flexibility, and aerobic conditioning. Dr. Simon also noted that if the applicant required supervision for safety purposes during exercise due to his head injuries, as determined by a neurologist or a physiatrist, a separate treatment plan should be submitted for 12 supervised one-hour exercise programing sessions with a kinesiologist or a personal trainer.

38As such, I find that the applicant has not proven that either treatment plan is payable.

The applicant is entitled to occupational therapy services

39I find that the applicant has demonstrated, on a balance of probabilities, that occupational therapy services are reasonable and necessary. However, I find that the applicant has failed to establish that the overall cost of the treatment plan dated September 23, 2021 for occupational therapy services in the amount of $4,489.92 is reasonable and necessary. I find that the amount payable for the treatment plan is $2,594.04.

40The treatment plan proposes eight in-home sessions, provider travel time, documentation, brokerage/service, completion of claim form, and protective personal equipment. The goal of the treatment plan is to reduce pain, to continue to improve in symptom management via emotional coping/stress management strategies, pain management strategies, sleep hygiene, and cognitive strategies, to return to activities of normal living, and to build a routine and incorporate principles of energy conservation and packing/planning to support improved engagement in housekeeping, meal preparation, and leisure activities without exacerbation of symptoms.

41Although the respondent approved the first block of occupational therapy services, it denied further occupational therapy services. It relied on Ms. MacKinnon’s report dated December 13, 2021 wherein she concluded that further occupational therapy services would not significantly change the applicant’s functional profile.

42I find that the provision of further occupational therapy services is reasonable and necessary. According to Ms. Crolla’s progress report dated September 28, 2021, the applicant was an active participant in his occupational therapy program and was highly motivated to return to his pre-accident level of functioning. Ms. Crolla also noted that the applicant was progressing well with occupational therapy treatment and that the treatment provided the required support to avoid the risk of re-injury, isolation, and deterioration of function and mental health. Ms. Crolla recommended ongoing occupational therapy to further assist the applicant in his recovery.

43Further, as noted above, the provision of further occupational therapy services is reasonably required if it helps with symptom management and has the goal of increasing function. In her report dated March 30, 2022, Dr. Ali indicated that pursuing occupational therapy services may be beneficial for the applicant. She noted that an occupational therapist may assist the applicant with gradually increasing his functional tolerance and engagement as well as develop effective pain management strategies. Also, he may be supported in expanding his behavioural repertoire which would complement his psychotherapeutic work and indirectly benefit his cognitive functioning. Dr. Ali also opined that occupational therapy may be instrumental in terms of assessing the applicant’s current functional capabilities and informing his capacity to return to work.

44As for the cost of the treatment plan, I find that the applicant’s submissions are lacking in demonstrating that the overall cost is reasonable and necessary. The applicant has provided no evidence or submissions to suggest that the cost of the provider’s travel time and the cost of protective personal equipment (“PPE") is payable under the Schedule.

45I find that the provider’s travel time is not payable pursuant to s. 15(2)(c) of the Schedule. I further find that that the cost of the PPE is not covered under the Schedule.

46Accordingly, I find that the applicant is entitled to $2,594.01 plus HST (if applicable) for occupational therapy services.

The applicant is entitled to an attendant care needs assessment

47I find that the applicant has demonstrated, on a balance of probabilities, that an attendant care needs assessment is reasonable and necessary. However, I find that the applicant has failed to establish that the overall cost of the treatment plan dated March 23, 2022 for an attendant care needs assessment in the amount of $1,997.04 is reasonable and necessary. I find that the amount payable for the treatment plan is $1,496.75.

48Pursuant to s. 42(7) of the Schedule, if an insurer wants to determine if an insured person is still entitled to attendant care benefits, wants to determine if the benefits are being paid in the appropriate amount or wants to determine both, the insurer shall give the person a notice requesting that a new assessment of attendant care needs for the insured person be prepared in accordance with this section and submitted to the insurer within 15 business days after the insured person receives the notice.

49The respondent previously approved the applicant’s entitlement to attendant care benefits in the amount of $357.80 per month based on an Assessment of Attendant Care Needs (Form 1) dated June 15, 2021 completed by Ms. McQuat. Pursuant to s. 42(7) of the Schedule, on March 11, 2022, the respondent advised the applicant that it required a new Form 1 to determine the applicant’s continued entitlement to attendant care benefits and requested that the new Form 1 be completed by a qualified occupational therapist or registered nurse by April 1, 2022.

50In accordance with the respondent’s request, the applicant submitted the proposed treatment plan. The latter proposes an in-home assessment for the completion of an updated Form 1 and to evaluate the applicant’s physical, psychosocial function, and safety requirements.

51Following receipt of the proposed treatment plan, the respondent determined that an in-home assessment and the completion of a new Form 1 was not reasonable and necessary on the basis that the applicant no longer required attendant care services.

52The parties disagree as to whether the proposed treatment plan is reasonable and necessary.

53I find that an attendant care needs assessment is reasonable and necessary. As noted by the applicant, the purpose of the assessment is to respond to the respondent’s request for a new Form 1 and to determine his ongoing need for attendant care benefits. The previous Form 1 was completed on June 15, 2021 and indicated that the applicant required assistance with dressing and undressing upper body; applying knee brace; co-ordinating/scheduling attendant care; assistance with prescribed exercise/stretching program; and administering prescribed medication. While it remains unclear why the respondent would request an updated Form 1 only to conclude that its own request was not reasonably required, considering the passage of time since the previous Form 1 was submitted, I find that the submission of a new Form 1 pursuant to s. 42(7) of the Schedule is reasonable and necessary to allow the respondent to assess the applicant’s continued entitlement to attendant care benefits.

54As for the cost of the treatment plan, I find that the applicant’s submissions are lacking in demonstrating that the overall cost is reasonable and necessary. The applicant has provided no evidence or submissions to suggest that the provider’s travel time is payable under the Schedule.

55I find that the provider’s travel time is not payable pursuant to s. 15(2)(c) of the Schedule.

56Accordingly, I find that the applicant is entitled to $1,496.75 plus HST (if applicable) for an attendant care needs assessment.

Interest

57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest for any overdue amount relating to the yoga therapy, occupational therapy services, and attendant care needs assessment.

Award

58As previously indicated, s. 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50 per cent of the benefits payable if it determines that the insurer “unreasonably withheld or delayed payments.”

59The applicant argues that the respondent’s refusal to pay for an attendant care needs assessment for the purpose of completing an updated Form 1 after it requested the completion of an updated Form 1 was unreasonable. The applicant submits that the respondent’s unreasonable behaviour should entitle him to the maximum award available.

60In response, the respondent submits that it appropriately managed the applicant’s claim and that an award is not warranted in the circumstances.

61It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The threshold for awarding a s. 10 award is high.

62I find that an award is not warranted in the circumstances as there is no evidence that the respondent’s actions rose to the level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

63Accordingly, the respondent is not liable to pay an award.

ORDER

64For the reasons outlined above, I find that:

1. The applicant is entitled to $1,567.47 for yoga therapy, $2,594.04 for occupational therapy services, and $1,496.75 for an attendant care needs assessment, with interest pursuant to s. 51 of the Schedule.

2. The applicant is not entitled to the balance of the treatment plans in dispute nor interest.

3. The respondent is not liable to pay an award.