MacKinnon-Cabral v. TD General Insurance Company, 2024 CanLII 108238

Citation and File Number

Citation: MacKinnon-Cabral v. TD General Insurance Company, 2024 ONLAT 22-012685/AABS

Licence Appeal Tribunal File Number: 22-012685/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:

Clara MacKinnon-Cabral

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Sabrina L Seibel, Counsel

For the Respondent: Vasiola Bibolli, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Clara MacKinnon-Cabral, the applicant, was involved in an automobile accident on November 21, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The Applicant was denied benefits by the respondent, TD General 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 are:

1. Is the applicant entitled to $1,020.00 for physiotherapy services, proposed by Dr. Tatsiana Adamovich of Function101 Chiro + Physio in a treatment plan (OCF-18) dated November 11, 2022?
2. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the treatment plan in dispute, interest, or an award.

PROCEDURAL ISSUES

The applicant’s motion to exclude documents from the hearing is denied

4On March 4, 2024, the applicant brought a motion seeking to exclude the insurer examination (“IE”) reports of Dr. Raymond Zabieliaukas, dated November 23, 2017, and Dr. Jamie Rusen, dated February 28, 2023.

5The basis for the applicant’s motion is that the Respondent failed to comply with the July 13, 2023, case conference report and order, requiring the production of the CVs for all IE assessors 60 calendar days from the case conference. The applicant argues that the production of the assessors’ CVs is necessary to the fair adjudication of the application, and without the production of same, the applicant is limited in her ability to make full submissions regarding the IE assessors’ opinion.

6The respondent submits that the applicant provided a signed authorization for the IE assessors to retrieve their records on August 3, 2023. On October 6, 2023, the respondent wrote to the applicant stating that they had requested the CVs and are awaiting receipt of same. The respondent made a subsequent request after receipt of the applicant’s motion and upon receipt of the CVs, the respondent provided same on March 13, 2024. The respondent further submits that the applicant relied on s. 44 assessor, Dr. Rusen, in her own hearing submissions, and there is no prejudice to the applicant as the reports detail the credentials of the assessors.

7This matter was brought to a case conference on July 11, 2023, and as such, the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) apply. Rule 9.4 of the Common Rules indicates that should a party not comply with an order with respect to the production of documents or things, that party may not rely on said document or thing without the permission of the Tribunal.

8I am not prepared to grant the applicant’s motion because I find that the Applicant has been in possession of the expert reports well in advance of the hearing and the qualifications of the respondent’s s. 44 assessors were set out in their reports. For this reason, I find there would be little, if any, prejudice to the applicant in denying this motion. Even if there was any prejudice to the applicant, it is outweighed by the prejudice to the respondent if it was barred from relying on the evidence of its own expert.

9Moreover, the applicant filed the Notice of Motion on March 4, 2024, after submitting her hearing submissions. Although late, the respondent provided the CVs prior to the deadline for the applicant to submit her reply submissions. Despite receiving the CVs on March 13, 2024, reply submissions dated March 21, 2024, do not reference the CVs, or reports of the s. 44 assessors.

10For all these reasons, the applicant’s motion is denied.

ANALYSIS

The physiotherapy services are not reasonable and necessary

11The Applicant has not established, on a balance of probabilities, that the treatment plan for physiotherapy services is reasonable and necessary.

12To 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.

13The treatment plan, dated November 11, 2022, submitted by Dr. Tatsiana Adamovich of Function101 Chiro + Physio (“Function101”) on November 30, 2022, for 12 sessions of physical rehabilitation, indicates goals of pain reduction, increased range of motion, increase in strength, and seeks to achieve a return to activities of normal living and life/recreation.

14The Applicant submits that records of Function101 support that she had experienced pain relief and was working on strengthening her groin during the sessions. The Respondent submits that the Applicant has failed to link the medical evidence to show that the OCF-18 in question is reasonable and necessary. Moreover, the Respondent argues that the surveillance conducted on the Applicant supports that she has no disruption in her activities of daily living.

15While I appreciate that the Applicant has seen a number of doctors and has undergone various treatment in the years following the 2013 accident, there must be compelling and contemporaneous evidence around the date that the disputed treatment plan was completed and submitted for consideration by the respondent that would endorse its reasonableness and necessity. As such, I give little weight to the clinical notes and records (“CNRs”) of CBI Health Centre; orthopedic surgeon, Dr. Olufemi Ayeni, dated October 28, 2014, and November 24, 2016; physiatrist, Dr. Seyed Hosseini, dated February 10, 2015, and September 27, 2019; physiatrist, Dr. Jeremy Fennell, dated January 6, 2017; and the s. 44 report of Dr. Zabieliauskas, dated November 23, 2017. I find that these CNRs do not give an accurate account of the Applicant’s medical status nor the need for rehabilitative treatment in 2022, because these CNRs predate the proposed treatment plan by several years. The Applicant has also not pointed me to any further medical opinion or evidence from these assessors, with respect to her accident-related injuries, beyond 2017.

16On August 27, 2019, and October 8, 2019, the Applicant reported hip pain to her family practitioner, Dr. McCallum. Dr. McCallum recommended Advil and walking in a pool. An MRI of the applicant’s bilateral hip, dated January 20, 2020, revealed complex tears involving the anterosuperior labrum bilaterally, unchanged since prior MRIs in 2014 and 2016. On April 27, 2020, the Applicant complained again of soreness in her hip, and Dr. McCallum recommended water therapy to strengthen muscles around the hip girdle and low impact exercise, walking, or hiking. No recommendations were made for physiotherapy. The Applicant was advised if the symptoms worsen, she should return to “ortho”. On December 21, 2021, the applicant reported ongoing aches in both hips since her “two MVAs”, to Dr. McCallum, and Dr. McCallum recommended driving therapy and physical therapy. The evidence shows that the Applicant did not attend Dr. McCallum’s office with accident-related complaints after December 21, 2021.

17The report of Dr. Jamie Rusen, s. 44 orthopedic surgeon, dated February 28, 2023, noted the Applicant reported that she was having ongoing musculoskeletal complaints of bilateral hip pain, which is relieved with physiotherapy and core strengthening. Dr. Rusen subsequently diagnosed uncomplicated musculoskeletal soft tissue strain/sprain injuries as a direct result of the subject accident. Dr. Rusen, however, opined that the subject treatment plan is not reasonable and necessary as the Applicant has reached maximum medical recovery, given that it has been almost 10 years since the subject accident. Dr. Rusen recommended regular home exercises.

18The applicant bears the onus of establishing subject treatment plan is reasonable and necessary, and in this matter, the applicant has not put forward compelling evidence beyond 2017, that would substantiate the need for the proposed physiotherapy treatment in 2022. While I recognize the applicant’s intermittent pain related complaints to Dr. McCallum, I am not pointed to any further CNR of Dr. McCallum indicating accident-related complaints or recommendations, beyond December 21, 2021. I find that this does not substantiate the need for continued therapy in the later part of 2022, because these CNRs, as provided, cease nearly a year prior to the date of the disputed treatment plan. Moreover, on review of the CNRs of Function101, it would appear that at the time the treatment plan was submitted the applicant had not completed the previous treatment plan submitted in August 2021. I find that in this respect, the disputed treatment plan was submitted prematurely.

19In any event, I am not satisfied that the applicant’s self-reported relief of pain with physiotherapy is enough to establish the need for the proposed treatment plan. I am not pointed to compelling medical opinion that has suggested the need for physiotherapy around the date of the disputed treatment plan, and the respondent’s denial letter, dated December 6, 2022, indicated that the applicant had yet to complete her treatment under the MIG. I find that this somewhat contradicts the applicant’s need for the proposed treatment plan, as the unused treatment and history of sporadic attendance do not support continued reliance on an available treatment program, particularly when considering nearly 10 years had elapsed since the subject accident.

20I also give little weight to the reports of psychologists, Dr. Shahriar Moshiri, dated February 28, 2023, and Dr. Bita Sharifzadeh, dated April 17, 2023. Although these assessors comment on the applicant’s reported pain complaints, neither Dr. Moshiri, nor Dr. Sharifzadeh, opine on or recommend the need for physiotherapy treatment.

21Given the foregoing, I find that the Applicant has not established, on a balance of probabilities, that the proposed treatment plan for physiotherapy services is reasonable and necessary.

Section 38(8) and 38(11)

22The respondent’s denial letter, dated December 6, 2022, is compliant with s. 38(8) of the Schedule.

23Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

24If an insurer fails to comply with its obligations under s. 38(8), certain consequences set out in s. 38(11) of the Schedule are triggered including the requirement that the insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8).

25The Applicant submits that the Respondent did not notify her that the treatment plan was denied until June 29, 2023, despite the correspondence letter indicating that the denial was made on December 6, 2022, contrary to s. 38(11) of the Schedule. As such, on December 10, 2022, the Applicant started the treatment at Function101, incurring 1 out of the 12 proposed sessions.

26The Respondent submits that the Applicant was sent a copy of the December 6, 2022, denial by regular mail, and she has not provided any evidence to the contrary.

27It is unclear, from the applicant and respondent’s submissions, when the treatment plan was submitted. Based on review of the evidence, a time stamp on the subject treatment plan would indicate that it was submitted on November 30, 2022, at 08:15 am, HCAI Document Number: 221130000166. Based on this time stamped date, pursuant to s. 38(8) of the Schedule, the respondent would have until December 14, 2022, the 10th business day, to respond.

28Section 64 of the Schedule, s. 64(18) indicates that in the absence of evidence to the contrary, a person is deemed to have received anything delivered by ordinary mail under clause (2)(d), on the fifth business day after the document is mailed in accordance with clause (2)(d). In this matter, the denial letter, if sent on December 6, 2022, would be deemed received on December 13, 2022. This fits within the response requirements of s. 38(8) of the Schedule.

29The applicant has the burden of putting forward contrary evidence, and as well established, submissions are not evidence. I am not pointed to evidence that suggests the respondent did not send the denial letter by ordinary mail, nor am I pointed to any evidence that suggests the applicant did not receive the denial letter within the prescribed timeline pursuant to the Schedule. I find that the email correspondence to the applicant’s representative, dated June 29, 2023, lacks context, and does not prove that the letter was not sent to, or received by the Applicant.

30Based on the evidence before me, I find that the respondent was compliant with s. 38(8) of the Schedule.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, no interest is payable.

Award

32The Applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As no benefits are owed, the Respondent is not liable to pay an award.

ORDER

33For the reasons outlined above, I find that:

i. The Applicant is not entitled to the treatment plan for physiotherapy services, dated November 11, 2022.

ii. The Applicant is not entitled to interest.

iii. The Respondent is not liable to pay an award.

iv. The application is dismissed.