Licence Appeal Tribunal File Number: 22-011660/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:
Georgina Bailey
Applicant
and
Traders General Insurance Company
Respondent
DECISION
VICE-CHAIR: Craig Mazerolle
APPEARANCES:
For the Applicant: Ashu Ismail, Counsel
For the Respondent: Meredith Harper, Counsel
HEARD: By review of the record and transcripts of the December 11 - 14, 2023 videoconference hearing
OVERVIEW
1Georgina Bailey, the applicant, was involved in an automobile accident on July 10, 2020, 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, Traders General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
2Following a videoconference hearing held from December 11 – 14, 2023, and after informing the parties that the adjudicator who heard the matter would be unable to provide a decision, the Tribunal issued a motion order on June 4, 2024. The Tribunal ordered that “this matter proceed by having a new adjudicator review the existing record (i.e., the recording and/or transcript of the hearing, if available, and all records that were made exhibits at the hearing) and render a decision.” By July 10, 2024, the respondent had provided the Tribunal with a complete copy of the transcripts from the videoconference hearing.
ISSUES
3As listed in the case conference report and order (released June 30, 2023), the issues in dispute were originally defined as:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $306.67 per week from April 30, 2021, to date and ongoing?
ii. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $1,414.05 from October 22, 2020, to date and ongoing?
iii. Is the applicant entitled to $4,450.00 for occupational therapy services, proposed by Innovative Occupational Therapy Services in a treatment plan/OCF-18 (“plan”) dated October 6, 2020?
iv. Is the applicant entitled to $3,041.30 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a plan dated November 3, 2020?
v. Is the applicant entitled to $2,635.40 for chiropractic services, proposed by Innovative Mackenzie Medical Rehabilitation Centre Inc. in a plan dated December 16, 2020?
vi. Is the applicant entitled to $2,200.00 for other goods and services, proposed by Critical Trauma Therapy in a plan dated June 3, 2021?
vii. Is the applicant entitled to $3,760.00 for other goods and services, proposed by Critical Trauma Therapy in a plan dated June 3, 2021?
viii. Is the applicant entitled to $2,635.40 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a plan dated September 3, 2021?
ix. Is the applicant entitled to $1,795.50 ($3,990.56 less $2,195.06 approved) for occupational therapy services, proposed by Innovative Occupational Therapy Services in a plan dated December 23, 2022?
x. Is the applicant entitled to $4,485.00 for social work, proposed by Critical Trauma in a plan dated January 23, 2023?
xi. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. McDowall of McDowall Integrative Psychology & Healthcare in a plan dated April 3, 2023?
xii. Is the applicant entitled to $2,486.00 for a vocational assessment, proposed by New Realm in a plan dated April 3, 2023?
xiii. Is the applicant entitled to $1,795.50 ($3,491.80 less $1,696.30 approved) for occupational therapy services, proposed by Innovative Occupational Therapy Services in a plan dated May 1, 2023?
xiv. Is the applicant entitled to $2,200.00 for an attendant care assessment, proposed by Innovative Occupational Therapy Services in a plan dated June 9, 2023?
xv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xvi. Is the applicant entitled to interest on any overdue payment of benefits?
4During closing submissions, the applicant withdrew her claim for an ACB. The applicant also noted that her IRB claim was limited to a nine-week period in and around January and April 2023.
5Both parties made costs requests during their closing submissions.
RESULT
6The applicant is entitled to payment of the following treatment plans, plus interest:
- $3,041.30 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc.;
- $2,635.40 for chiropractic services, proposed by Innovative Mackenzie Medical Rehabilitation Centre Inc.;
- $2,635.40 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre;
- $1,795.50 ($3,491.80 less $1,696.30 approved) for occupational therapy services, proposed by Innovative Occupational Therapy Services;
- $1,795.50 ($3,990.56 less $2,195.06 approved) for occupational therapy services, proposed by Innovative Occupational Therapy Services; and,
- $4,485.00 for social work, proposed by Critical Trauma in a treatment plan/OCF-18 (“plan”) dated January 23, 2023.
7The applicant is not entitled to payment of the remaining treatment plans, the IRB, or an award.
8The parties’ costs requests are both denied.
ANALYSIS
Income Replacement Benefit
9I conclude that the applicant has not established entitlement to the IRB.
10Section 5(1) of the Schedule states that insured persons are entitled to an IRB if they are employed at the time of the accident and sustain an accident-related impairment that causes “a substantial inability to perform the essential tasks of that employment”. This test becomes more stringent “after the first 104 weeks of disability”, as s. 6(2)(b) then requires an insured person to show a “complete inability” to perform any role that they are reasonably suited to perform by way of experience, training, and education. The onus is on the applicant to demonstrate entitlement on a balance of probabilities for the nine-week period at issue.
11To begin, the parties disagree over the period when the “complete inability” standard comes into effect. The applicant claims that the wording “104 weeks of disability” means that this standard does not apply until an insured person has had a cumulative period of 104 weeks at the “substantial inability” standard. Since the applicant returned to her pre-accident role for a period following the accident, the nine-week period at issue remains within “the first 104 weeks of disability”. As such, the “substantial inability” standard applies. The respondent disagrees, instead arguing that the stricter standard comes into effect once 104 weeks have elapsed since the accident.
12The parties presented competing case law, but I find the respondent’s reliance on Traders General Insurance Company v. Rumball, 2022 ONSC 7215 is the most persuasive. In this recent, binding case, the Divisional Court defined the dividing line between the two standards at paragraph 56 [emphasis added]:
An insured person is disabled when he or she “suffers a substantial inability to perform the essential tasks of his or her employment or self-employment”. The disability test changes 104 weeks after the accident. No longer is the test one which requires the insured to establish a substantial inability to perform the essential tasks of his or her employment. Rather, the test is more stringent. It requires the insured to demonstrate that because of the accident he or she is “suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience”.
13The applicant cites Crooks v. Wawanesa Mutual Insurance Co., 1996 CanLII 8036 (ON SC) in support of her interpretation of s. 6(2)(b), but I do not find this case is as compelling as Rumball. Briefly, in addition to it being an older case than Rumball, Crooks is based on different statutory language.
14Therefore, I find the “complete inability” standard comes into effect “104 weeks after the accident”. Relying on the “complete inability” standard, I conclude that the applicant has not established entitlement to the nine-week period at issue.
15I will note that the nine-week period the applicant is seeking is a bit unclear. This period appears to revolve around the gap between her position as a Packaging Manager at Mastro Vinci and her start at Amhil North America as a Finished Product Technician. However, according to a contemporaneous letter from her treating occupational therapist, Aiden Huynh (letter dated May 8, 2023), the applicant was off work between March 25 and April 28, 2023. This gap is just shy of five weeks. Regardless, the difference between five weeks and nine weeks is immaterial to my findings below.
16In addition to the applicant mainly focusing on her interpretation of s. 6(2)(b), as opposed to how the evidence meets the “complete inability” test, I find the respondent provides a compelling defense to this claim. Specifically, the respondent submits it is difficult to accept that the applicant sustained a “complete inability” to perform any role that she is reasonably suited to perform, as she left one factory position to work in a similar, albeit likely less physically demanding, factory position about a month later. I agree.
17Once again, the nine-week period at issue appears to revolve around the gap between the applicant’s role as a Packaging Manager at Mastro Vinci and her start at Amhil North America as a Finished Product Technician. As the applicant testified, one of the main differences between the roles is that she can sit for a part of her 12-hour shift at Amhil. Mastro Vinci required her to stand for most of her 8-hour shifts. I find the timeline of events and the similarity between the two factory positions does not support a finding that the applicant sustained a “complete inability” to perform any role that she is reasonably suited to perform. Rather, I conclude that the applicant was able to move from one factory position to another within a limited amount of time, and this shift did not require a significant change to the nature of the work.
18Turning to her other IRB arguments, the applicant notes that the respondent never sent her to a functional abilities’ evaluation. There is no obligation under the Schedule for an insurer to send an insured person to certain assessments if they claim an IRB. Further, I have not been provided with a compelling account of how this insurer’s examination would have helped the applicant to meet her evidentiary burden.
19For the reasons above, the applicant has not established entitlement to the IRB.
20To 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.
21The applicant is seeking a combination of assessments and services for a total of 12 treatment plans. For the assessments, the applicant is seeking: a vocational assessment (Issue xii); an attendant care assessment (Issue xiv); a social work assessment (Issue vi); and a psychological assessment (Issue xi). For services, the applicant is seeking: two plans for social work treatment (Issues vii and x); three plans for chiropractic services (Issues iv, v, and viii); and three plans for occupational therapy services (Issues iii, ix, and xiii). Two of the three occupational therapy services plans have been partially approved.
22The motion order released on June 4, 2024, states that my review of the transcript and hearing record will involve: “records that were made exhibits at the hearing”. In the section of the applicant’s document brief marked as Exhibit 28, “Treatment Plans”, only nine of the twelve plans are included. The issue of certain OCF-18 forms not being included under Exhibit 28 was not raised during the videoconference hearing, but the remaining three plans are found in other parts of the parties’ materials. Due to the centrality of the OCF-18 form to the reasonable and necessary analysis, I have considered all the OCF-18 forms present in the parties’ hearing materials.
Chiropractic Services
23I find the applicant is entitled to payment of the chiropractic services plans.
24The applicant submitted three treatment plans from Mackenzie Medical: i.e., $3,041.30, dated November 3, 2020; $2,635.40, dated December 16, 2020; and $2,635.40, dated September 3, 2021. The first two plans are seeking funding for various forms of physical therapy: e.g., chiropractic and massage treatment, acupuncture, etc. These two plans share the treatment goals of pain reduction, increases in strength and range of motion, and a return to activities of normal living and work. The September 2021 plan focuses on chiropractic and massage treatment, with goals of pain reduction and return to activities of normal living.
25The applicant supports payment of these plans by claiming that pain reduction is a valid treatment goal. The applicant also claims that the respondent’s reliance on the opinion of Dr. Esmat Dessouki, orthopaedic surgeon, to deny the plans was improper. Rather, the opinion of the applicant’s chronic pain specialist, Dr. Stephen Brown, should hold more weight, as his opinion encompasses both the physical and psychological aspects of pain.
26The respondent submits there is no evidence of the reasonable and necessary nature of the plans. The respondent further submits that Dr. Brown’s opinion should be afforded little weight, e.g., he conducted a video interview, and there was no physical testing performed. On the other hand, Dr. Dessouki’s opinion should be preferred, as he was the only orthopaedic surgeon who provided evidence. Finally, the respondent argues that the applicant has not established causation between the accident and her alleged impairments. In particular, the respondent alleges there is a lack of complaints made in the immediate aftermath of the accident (including with her family physician).
27I find there is sufficient evidence of pain in the applicant’s left knee from around the time that the treatment plans were prepared to establish that the proposed services are reasonable and necessary on a balance of probabilities.
28First, there is consistent reporting of pain complaints in the applicant’s left knee to her treating practitioners at Mackenzie Medical. These notes include October 27, 2020, November 17, 2020, November 19, 2020, December 2, 2020, etc. These complaints continue up and until at least March 10, 2021. In reviewing the Mackenzie Medical file, I find these treatment records provide a consistent account of pain complaints made in the immediate aftermath of the accident, even if they are not made to the family physician. Further, I find the records establish a timeline that shows, “but for” the accident, there would be no impairment. Put another way, the accident was a necessary cause of the impairment.
29Then, during her assessment with Dr. Brown on January 13, 2023, the applicant still reported left knee pain as one of her chief complaints. This complaint may have been well after the plans in dispute were prepared, but I find it is a strong indication of the reliability of her earlier pain complaints.
30Turning to the report of Dr. Dessouki (report dated January 26, 2021), I find his conclusion largely lines up with the applicant’s other pain complaints. Despite finding that the November and December 2020 treatment plans were not reasonable and necessary, Dr. Dessouki concluded that the applicant’s “accident-related diagnosis is consistent with fracture left ankle (resolved) and left knee sprain.” In other words, while the left ankle fracture had healed, he appears to opine that the left knee sprain was ongoing. When paired with the benefit from treatment that the applicant also reported during this assessment, I find Dr. Dessouki’s report adds support to finding that physical therapy will likely help address the left knee pain.
31I would also note that Dr. Dessouki’s conclusions provide further support for the causal link between the accident and the applicant’s impairments, as the left knee sprain was found to be “accident-related”.
32Therefore, with the goal of pain reduction shared by the three plans, I find the applicant has demonstrated that the plans for chiropractic treatment are reasonable and necessary to address the applicant’s left knee pain.
33The respondent cites case law that suggests pain relief alone cannot be an ongoing justification for treatment. However, considering the ongoing nature of the pain, and the reported improvement noted in Dr. Dessouki’s report, I find the applicant had not moved on to a stage of undue dependance when these plans were prepared.
34There was a dispute between the parties over the extent to which these treatment plans were incurred. The respondent also contends that the applicant has moved away from this clinic. However, I find it is not necessary for me to make findings on these points. Rather, I am satisfied that these plans are reasonable and necessary, and they are payable if incurred.
Vocational Assessment
35I find the applicant is not entitled to payment of the vocational assessment plan (dated April 3, 2023).
36This treatment plan is seeking a total of $2,486.00 for a vocational assessment and planning fee. The treatment goals include determining suitability for potential employment, as well as the return to “any occupation in conjunction of [the applicant’s] reported skills, training and experience.” The assessment was proposed on an OCF-18 form received by the respondent on May 4, 2023.
37The applicant claims the assessment is needed, since she does not anticipate being able to perform factory work on an ongoing basis. The applicant also claims there was an error in the letter denying the plan, i.e., the date of the accident was incorrect. The respondent opposes the plan, stating the applicant has returned to work.
38I find the applicant has not demonstrated the reasonable and necessary nature of this plan, as the OCF-18 form was submitted following her return to work in a factory role. Though I note the applicant’s concern about being able to continue with this type of work in the future, I find returning to a factory job still challenges the necessary nature of the assessment. I also have not been provided a compelling explanation for how the alleged error on the Explanation of Benefits helps the applicant to meet her onus. For these reasons, the applicant is not entitled to payment of the plan.
Social Work Assessment and Social Work Treatment
39I find the applicant is entitled to payment of the second social work treatment plan dated January 23, 2023. The applicant is not entitled to payment of the social work assessment plan, nor the initial social work treatment plan (both dated June 3, 2021).
40The social work assessment plan (dated June 3, 2021) proposes $2,000.00 for the completion of the assessment, along with a $200.00 form completion fee. In addition to a return to activities of normal living, the other treatment goal listed on the form is: “to evaluate client’s psycho-emotional/ social strengths and weaknesses for treatment/ rehab planning.”
41The first treatment plan for social work treatment (dated June 3, 2021) is seeking a total of $3,760.00. This amount will cover 10 sessions of therapy costing $2,025.00, with the rest dedicated to: planning, brokerage, documentation, completing the form, and materials. In addition to a return to activities of normal living, the other treatment goal is: “Management and treatment of psycho-emotional and psycho-social impairments; establishment of coping strategies to support activity reengagement”.
42The second social work treatment plan (dated January 23, 2023) is seeking a total of $4,485.00. This amount will cover 12 sessions of therapy and 12 sessions of education, costing $2,430.00 and $810.00, respectively. The rest is set aside for documentation, form completion, a test, and a “Reserve for funding of equipment/ devices, workbooks, etc. as required to support treatment sessions”. This plan shares the same goals as the earlier social work treatment plan.
43The applicant argues that the plans were denied based on a faulty opinion from the respondent’s psychological assessor, Dr. Rakesh Ratti. Specifically, the applicant’s neuropsychological assessor, Dr. Giselle Braganza, found Dr. Ratti’s opinion that the applicant did not have any psychological complaints was an outlier. Further, the applicant submits the respondent never reassessed her claim, despite learning about new, significant psychological complaints.
44The respondent argues it was improper for the social worker, Tracy Gostlow, to prepare the June 3, 2021 treatment plans at the same time. The respondent also claims that Ms. Gostlow’s supporting letter (dated June 10, 2021) is missing information, and that it makes findings that are not corroborated.
45I find the applicant has not established entitlement to the June 3, 2021 treatment plans for a social work assessment and social work treatment, as I find there is insufficient evidence to support these requests. While the applicant may take issue with the opinions relied upon by the respondent, she still has the onus to demonstrate entitlement to these benefits at first instance. As noted above, the primary complaints made by the applicant to both treating practitioners and assessors in the months following the accident were physical in nature. Therefore, I conclude there is an insufficient evidentiary basis from the period in and around the preparation of the June 2021 treatment plans to support the goals of evaluating and then managing possible psycho-emotional and psycho-social impairments.
46Additionally, though the applicant contends that Dr. Ratti’s opinion is at odds with findings from other practitioners, I note that the interview and testing he conducted during his assessment in March 2021 reveal virtually no psychological complaints. For instance, on both the Beck Depression Inventory-II and the Beck Anxiety Inventory, the applicant scored in the minimal ranges. Then, in the interview, it appears the most significant psychological complaint was her being “more cautious when she crosses streets.” Taken together, I find the self-reported complaints and test results from Dr. Ratti’s report provide further evidence to show a near absence of emotional and social complaints at this time.
47Finally, though I accept that Ms. Gostlow’s letter from June 2021 provides some support for the plans, she testified that her interview with the applicant was likely around 15 minutes. She also noted that there was no psychological testing used, as she instead relied on a scale that asked about symptomology. Overall, I prefer the more comprehensive testing and interview performed by Dr. Ratti.
48However, turning to the second social work treatment plan from January 2023, I find that social work services were reasonable and necessary at this point. By the time this plan was prepared, there was a more comprehensive record detailing accident-related emotional complaints from the applicant. Specifically, in the progress reports provided by Mr. Huynh, I find there is a link drawn between her accident-related pain and feelings of sadness. This evidence provides a compelling account for how social work services focused on managing and treating these emotional responses are necessary to the applicant’s recovery.
Attendant Care Assessment
49I find the applicant is not entitled to payment of the attendant care assessment plan (dated June 9, 2023).
50The applicant is seeking $2,200.00 for completion of an attendant care assessment and the claim form. In addition to a return to activities of normal living, the other treatment goal listed on the OCF-18 form is: “Comprehensive Re-Assessment of Attendant Care Needs + Form 1”. The plan is dated June 9, 2023.
51The applicant supports payment of the plan by claiming that there has been a significant change to her behaviour post-accident, including a decrease in the frequency of oral hygiene. Therefore, an assessment is needed to consider the impact of her emotions on her functional capacity. The respondent argues the applicant has the functional capacity to maintain her self-care, and she can work in a demanding job.
52I find the applicant has not established the reasonable and necessary nature of this plan, as I find the proposed goal is unreasonable in light of the lack of incurred attendant care services. As the applicant noted in her submissions, no attendant care has been incurred. Yet, the goal of this plan is a “Re-Assessment” of her attendant care needs. I am satisfied that a re-assessment of attendant care needs will not assist in her recovery, as she has yet to incur these services.
53Further, I note that Mr. Huynh’s May 2023 letter (drafted shortly before the preparation of this OCF-18) states the applicant “reported an increase in the frequency and amount of time” she engaged in certain household and community activities, e.g., laundry, exercise, etc. Mr. Huynh did note varying levels of success with these interventions during his testimony, and the letter lists some tasks that the applicant was still struggling with, e.g., dishes. However, I conclude this letter provides further support for finding the applicant did not require attendant care to help her address any functional limits at this time.
Partially Approved Occupational Therapy Services Plans
54I find the applicant is entitled to payment of the outstanding amounts from the two partially approved occupational therapy services plans (dated December 23, 2022, and May 1, 2023).
55The denied parts of the occupational therapy services plans are planning and documentation. The applicant argues these services are meant to provide updates on her treatment, namely, the planning fees are for client and community team communications, and the documentation fees are for update letters. According to the applicant, these services are necessary. The respondent disagrees, pointing out how the applicant did not call the service providers to testify.
56Despite the applicant’s decision not to call the service providers to testify, I am satisfied that the applicant has established that these denied services are necessary. As Dr. Brown noted in his testimony, there are overlapping physical and psychological aspects to pain. Considering the diversity of the treating practitioners involved in the applicant’s care, I find it necessary for this part of her care team to be in communication with both the applicant and her other practitioners, especially through the use of update letters.
57The respondent did not oppose the denied portions of the plans based on the reasonableness of the costs, and I find the amounts being sought for these denied services are reasonable in light of the approved amounts from the plans.
Denied Occupational Therapy Services Plan
58I find the applicant is not entitled to payment of the fully denied occupational therapy services plan (dated October 6, 2020).
59The treatment plan is seeking a total of $4,450.00, comprising of 8 sessions of motor and living skills training costing $1,596.00, with the remainder dedicated to planning, provider travel time, documentation, form completion, and supplies. In addition to a return to activities of normal living, the other treatment goal is “to maximize functional restoration and address barriers impeding normal daily function”.
60The applicant highlights how the respondent fully denied this plan, despite later approving other occupational therapy services. The applicant also claims that the respondent’s occupational therapy assessor, Jag Dhirayain, only addressed her physical capacities (report dated April 6, 2021). Finally, the applicant claims the plan meets the goals of rehabilitation services under s. 16 of the Schedule.
61The respondent argues that Mr. Dhirayain found the applicant’s only complaint was her knee. Further, the respondent argues that incurring treatment does not mean it is automatically reasonable and necessary.
62I find the applicant has not established entitlement to this treatment plan, as the records demonstrate that the focus of her complaints and treatment in and around the time this plan was prepared involved physical impairments. A major aspect of this finding is the reliance I place on Mr. Dhirayain’s report. With his assessment taking place on December 29, 2020 (i.e., about three months after the treatment plan was completed), I find his report provides a comprehensive understanding of the applicant’s limitations and reported needs at the time. Briefly, Mr. Dhirayain’s report lists a series of tasks that the applicant had the capacity to complete independently, along with her self-reported observation that her one current complaint was: “Pain in back of left knee when standing or walking too much”. Considering this plan’s goals involve returning to activities of normal living, I find the applicant’s observed and self-reported ability to conduct daily tasks raises questions about the necessity of these services at this time.
63Turning to the applicant’s criticism of Mr. Dhirayain’s report, I find these concerns do not significantly challenge the weight I place on his opinion. The applicant took issue with how Mr. Dhirayain appeared to limit the scope of his assessment to the applicant’s physical capacity, as opposed to assessing the impacts of her emotions and motivation. However, I accept the responses that Mr. Dhirayain provided during his testimony about how his assessment was conducted as part of a multi-disciplinary investigation. Specifically, by relying on the assessments from Drs. Ratti and Dessouki, I find Mr. Dhirayain appropriately relied on their expertise to support his own findings within his scope of practice.
64Further, I see no issue with the assessor’s finding that the applicant’s only reported issue was her knee pain. As demonstrated by the Mackenzie Medical records discussed above, physical pain was the main accident-related issue that the applicant mentioned in the months following the accident.
Psychological Assessment
65I find the applicant is not entitled to payment of the psychological assessment plan (dated April 3, 2023).
66The applicant is seeking $2,200.00 for the completion of a psychological assessment and the claim form. There are no treatment goals listed on the OCF-18 form. Instead, the reader is directed to review a Psychological Consultation Report. This report seems to be the report signed by Dr. Sharleen McDowall (pre-screen interview on March 4, 2023). The treatment goals in this report appear to be helping to determine the applicant’s “clinical diagnosis and psychological treatment needs”. There is also reference to “treatment recommendations”.
67The applicant supports payment of this plan by claiming that an OCF-18 form is “signed certification of the reasonable necessity”. The applicant also suggests that the respondent improperly required her practitioners to first conduct full assessments if they wanted payment of the treatment plans for these same assessments. The respondent challenges the plan by highlighting how no one was called to testify about the reasonable and necessary nature of the assessment.
68I find the applicant has not demonstrated on a balance of probabilities why this assessment is reasonable and necessary. Aside from the fact that the applicant appears to mainly rely on the OCF-18 form (which the Tribunal has consistently found to be an insufficient evidentiary basis for a medical benefit), in reviewing the Consultation Report, I note that one of the conclusions is that “without psychological treatment, [the applicant] is at risk for further emotional decompensation”. Since this assessor had sufficient information to reach this conclusion, I do not see how an assessment focused on determining a “clinical diagnosis and… treatment needs” or “treatment recommendations” would be necessary for the applicant’s recovery. Rather, this consultation report suggests that psychological treatment is the necessary next step to the applicant’s recovery, not a further assessment.
69The applicant’s other main argument for this plan is a challenge to the respondent’s adjusting process. Regardless of whether her complaints are valid or not, the applicant has the onus to demonstrate the reasonable and necessary nature of this plan. I find she has not met this onus.
Interest
70Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51.
Award
71The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50% of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
72The applicant claims the respondent closed its mind to considering the reasonableness of the disputed benefits after it received its own expert reports. The applicant’s main example of this allegedly closed mind is what she found to be the limited number of documents highlighted by Mr. Dhirayain in his April 2021 report, i.e., only the assessment reports from Drs. Ratti and Dessouki were mentioned in detail. Further, the applicant claims the respondent took an adversarial position to her claim, e.g., highlighting alleged deficiencies in her OCF-18 forms. The respondent opposes the award request.
73I find the applicant has not met her onus to demonstrate entitlement to an award. An insurer’s conduct is not measured against the standard of perfection when determining whether an award is merited. Though the applicant may take issue with the evidentiary basis of its denials, as well as the respondent’s adjusting process, I have not been pointed to any specific action that would demonstrate unreasonable withholding of the benefits that have been found payable in my present decision. Rather, I am satisfied that the respondent sought out and received expert opinions that it chose to rely upon. The applicant has not established that the adjusting process was unreasonable.
Costs Requests
74Turning to the parties’ costs requests, I do not find either party has met the high threshold necessary for ordering costs.
75Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. Rule 19.5 provides factors to consider whether determining whether to order costs.
76The applicant supports her request for costs by claiming that she had no prior notice about the alleged deficiencies the respondent highlighted in some of her forms, including the OCF-18 forms. The applicant also claimed that the respondent’s behaviour during the hearing merits costs, including its vigorous cross-examination and the frequent, alleged misstatements from its counsel.
77I find the applicant has not established that the respondent’s behaviour merits costs. First, Rule 19.1 is clear that the alleged misconduct must take place “in a proceeding”. Concerns about whether the respondent had an obligation to alert the applicant about deficiencies in her OCF-18 forms (and other related issues) do not fall within the scope of “a proceeding”. Second, while both parties engaged in spirited cross-examination, the applicant has not established that any of the respondent’s questioning stepped into the realm of unreasonable, frivolous, vexatious, or bad faith behaviour. Finally, though the applicant claimed the hearing was delayed by the need to correct alleged misstatements, I find objections are an anticipated part of litigation.
78The respondent supports its costs request by submitting that the applicant should not have waited until closing submissions to withdraw her claim for an ACB. I do not find this behaviour reaches the threshold of Rule 19.1. It is always open to an applicant to withdraw any or all of an application until a decision is rendered. Further, litigation is a dynamic process, and parties are encouraged to constantly reconsider their positions as evidence is presented during a hearing. A timelier removal of the issue may have saved the parties and Tribunal some time and resources, but I find the chilling effect of a costs order on other parties before the Tribunal greatly outweighs the prejudice faced by the respondent in this case.
ORDER
79For the above reasons, I make the following orders:
i. The applicant is entitled to payment of the following treatment plans, plus interest pursuant to s. 51 of the Schedule:
(a) $3,041.30 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc.
(b) $2,635.40 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc.
(c) $2,635.40 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre
(d) $1,795.50 ($3,491.80 less $1,696.30 approved) for occupational therapy services, proposed by Innovative Occupational Therapy Services
(e) $1,795.50 ($3,990.56 less $2,195.06 approved) for occupational therapy services, proposed by Innovative Occupational Therapy Services; and,
(f) $4,485.00 for social work, proposed by Critical Trauma in a treatment plan/OCF-18 (“plan”) dated January 23, 2023.
ii. The applicant is not entitled to payment of the remaining treatment plans, the IRB, or an award.
iii. The parties’ costs requests are both denied.
Released: December 10, 2024
__________________________
Craig Mazerolle
Vice-Chair