Citation: Bishop v. Security National Insurance Company, 2024 ONLAT 22-012670/AABS

Licence Appeal Tribunal File Number: 22-012670/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:

Adriana Bishop

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Rand Meshki, Counsel

For the Respondent: Noah Shapiro, Counsel

HEARD: By way of written submissions

OVERVIEW

1Adriana Bishop was involved in an automobile accident on June 7, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

2The 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.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $1,887.95 for physiotherapy and massage therapy services, submitted on an expense claim form (OCF-6) dated June 10, 2022?

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

RESULT

4I find that the applicant is not entitled to the physiotherapy and massage therapy services submitted on the OCF-6, dated June 10, 2022. As there are no overdue benefits, there is no interest payable.

PROCEDURAL ISSUES

The Applicant’s Submissions will be considered

a. Margins in the applicant’s submissions

5The respondent’s request to not consider the applicant’s written submissions that exceed the permitted page length is denied.

6The Case Conference Report and Order (“CCRO”), dated July 7, 2023 stipulated an 8-page limit for initial submissions. The CCRO further stated at paragraph 12 that the submissions shall be double-spaced, 12-point Arial or Times New Roman font.

7The respondent submits that the applicant has used improper margins in her submissions. It submits that the applicant’s submissions propose to be 8 pages in length, however it is clear that the pages were formatted to alter the margins to fit more submissions than was allowed. The respondent estimates that the applicant’s submissions with conservative formatting would be 11 pages. The respondent requests that the Tribunal not consider the applicant’s written submissions that exceed the 8-page limit.

8While it is clear that the margins used by the applicant have been altered to allow her to fit more submissions than the page limit allowed by the CCRO, the CCRO does not specifically speak to the size of the margins to be used by the parties. I find that striking part of the applicant’s submissions would be disproportionately prejudicial to the applicant. Therefore, the applicant’s full submissions will be admitted into the hearing record.

b. Submissions are not indexed, bookmarked/tabbed and consecutively page numbered

9The respondent’s request to not consider the applicant’s written submissions on the basis that they are not indexed, bookmarked/tabbed, and consecutively page numbered, is denied.

10The respondent submits that the applicant’s submissions are not “indexed, bookmarked/tabbed and consecutively page numbered.” It states that the applicant’s submissions do not make specific reference to the evidence and law by tab or page number. The respondent submits that the applicant has violated procedural fairness. The respondent requests that the Tribunal not review evidence that is not properly referenced.

11The applicant’s submissions have footnotes that reference the evidence that is being relied upon and the tab where the evidence is found in the applicant’s Book of Documents. The applicant’s Book of Documents is also properly tabbed and bookmarked. While the applicant has not consecutively numbered the pages in its submissions, the respondent has failed to establish how the lack of page numbering violates procedural fairness. I find that striking the entirety of the applicant’s submissions as requested by the respondent, would make it impossible for the applicant to meet his onus, which would be excessively prejudicial.

12I find that the applicant’s full submissions and book of documents will be admitted into the hearing record.

ANALYSIS

The applicant is not entitled to the physiotherapy and massage therapy services submitted on the OCF-6, dated June 10, 2022

13I find that the applicant has not proven on a balance of probabilities that she is entitled to the physiotherapy and massage therapy services, submitted on the OCF-6, dated June 10, 2022.

14The applicant submitted an Application for Determination of Catastrophic Impairment (OCF-19) to the respondent on July 4, 2019, applying for a catastrophic (“CAT”) impairment determination under criterion 8, due to a mental and behavioural disorder.

15The parties disputed that the applicant suffered a CAT impairment and the matter proceeded to a hearing before the Tribunal on November 15, 2021. On April 22, 2022, Adjudicator Rebecca Hines released her decision that the applicant sustained a CAT impairment as a result of the accident (see: Bishop v. TD General Insurance Company, 2022 CanLII 33194 (ON LAT).)

16The applicant submits that while she awaited the Tribunal’s decision regarding her CAT impairment designation, she paid a total of $1,887.95 out of pocket between May 28, 2019 and November 1, 2019, for physiotherapy and massage therapy sessions at Lifemark.

17Following the release of the Tribunal’s decision on the issue of CAT impairment designation on April 22, 2022, the applicant sought reimbursement for these expenses and submitted an OCF-6, dated June 10, 2022, claiming physiotherapy and massage services in the amount of $1,887.95 to the respondent.

18By letter dated September 8, 2022, the respondent denied reimbursement of the physiotherapy and massage therapy expenses submitted on the June 10, 2022 OCF-6, based on s. 38(2) of the Schedule.

19Pursuant to s. 38(2) of the Schedule, an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment of examination that was incurred before the insured person submits a treatment plan that satisfies the requirements of subsection (3). A list of exceptions is provided under subsection (2)(a) to (d).

20The applicant submits that prior to the expenses being incurred from May 28, 2019 to November 1, 2019, there was a treatment plan dated October 4, 2018, submitted for physiotherapy and massage therapy, which was partially approved. She claims that the only reason why the treatment plan was partially approved was to reserve the remaining non-CAT policy limits for prescription glasses. She further claims that she was not entitled to request reimbursement of the incurred expenses beyond non-CAT limits until after the April 22, 2022 Tribunal decision.

21The applicant further submits that as the respondent has approved treatment plans with respect to physiotherapy and massage therapy leading up to and following the CAT impairment designation, the respondent does not dispute that the treatment is reasonable and necessary.

22The respondent submits that the applicant is not entitled to the physiotherapy and massage therapy services submitted on the June 10, 2022 OCF-6, based on s. 38(2) of the Schedule, as the expenses were incurred prior to submission of a treatment plan. The respondent submits that regardless of whether the disputed expenses are indeed reasonable and necessary, they are not payable when an applicant fails to comply with s. 38(2) of the Schedule.

23The respondent further submits that the exceptions in s. 38(2)(a) to (d) are expressly listed and the physiotherapy and massage therapy expenses listed in the June 10, 2022 OCF-6, do not fall within any of the exceptions. The respondent further submits that there is no exception to s. 38(2) of the Schedule because the non-CAT statutory limits had been reached. The respondent’s position is that the proper and correct manner of proceeding would have been for the applicant to submit a treatment plan prior to incurring the treatment and to dispute the denial thereof in due course.

24I find that the applicant incurred the physiotherapy and massage therapy expenses prior to submitting a treatment plan for these expenses to the respondent in contravention of s.38(2) of the Schedule. Therefore, the expenses are not payable.

25I am persuaded by the Tribunal decision in GHM v. Wawanesa Insurance Company, 2022 CanLII 33192 (ON LAT), relied upon by the respondent in its’ submissions, where the Tribunal held that “the provisions set out in s. 38(2) of the Schedule are mandatory.”

26I am also persuaded by the Tribunal decision in K.R. and Certas Direct Insurance Company, 2020 CanLII 40341 (ON LAT), relied upon by the applicant in her submissions with respect to the requirements of s. 38(2) of the Schedule. The Tribunal stated:

I find the analogy drawn by Adjudicator Truong in paragraph 27 of V.K. v. Allstate Insurance Company, 2018 CanLII 61172(ON LAT) to be persuasive. The Adjudicator noted that the Schedule codifies obligations that both the insurer and the insured are required to follow. Therefore, to require one party to abandon theirs would be a breach of natural justice and fairness. I find the operation of s. 38(2) of the Schedule relieves an insurer from being liable to pay for medical/rehabilitation or cost of examination prior to having an opportunity to review the expenses and then determine whether they agree to pay for it. Therefore, I find that the requirements as set out within 38(2) are the law and I do not have the discretion to waive them.

27For the reasons set out above, I find that the applicant is not entitled to the physiotherapy and massage therapy services submitted on the OCF-6, dated June 10, 2022.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, there is no interest payable.

ORDER

29For the reasons outlined above, I find:

i. The applicant is not entitled to the physiotherapy and massage therapy services submitted on the OCF-6, dated June 10, 2022. As there are no overdue benefits, there is no interest payable.

ii. The application is dismissed.