Citation: Martin v. Economical Mutual Insurance Company, 2024 ONLAT 23-000181/AABS

Licence Appeal Tribunal File Number: 23-000181/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:

Roger Martin

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR:

Tyler Moore

APPEARANCES:

For the Applicant:

Ryan Naimark, Counsel

For the Respondent:

Suhasha Hewagama, Counsel

HEARD:

In Writing

OVERVIEW

1Roger Martin, the applicant, was involved in an automobile accident on June 9, 2021, 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, Economical Mutual 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:

i. Is the applicant entitled to $2,146.76 ($7,397.27 less $5,250.49 approved) for physiotherapy services, proposed by Healthbound in a treatment plan/OCF-18 (“plan”) dated August 9, 2021?

ii. Is the applicant entitled to $552.85 ($992.85 less $440.00 approved) for assistive devices, proposed by Healthbound in a plan dated September 23, 2021?

iii. Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that the applicant is not entitled to any of the disputed benefits, nor interest nor an award.

PROCEDURAL ISSUES

4The case conference report and order (“CCRO”) released by the Tribunal on September 28, 2023, listed eleven issues in dispute, including whether or not the applicant had sustained a catastrophic impairment (“CAT”) as defined by the Schedule.

5By way of a Motion Order dated March 27, 2024, the Tribunal converted the format of the hearing from a videoconference to a written hearing and confirmed that the only remaining issues in dispute are as listed above. The parties agreed that the remaining issues in dispute, as listed in the CCRO, had been resolved as of March 20, 2024.

ANALYSIS

6I find, on a balance of probabilities, that the applicant is not entitled to $2,146.76 ($7,397.27 less $5,250.49 approved) for physiotherapy services.

7To 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.

8The treatment plan proposed by Healthbound calls for a total of $2,743.18 for twenty-two 1.25-hour sessions of therapy that include stimulation, preparation, therapy, mobilization, and exercise performed by a physiotherapist. It also calls for 22 sessions of therapy at $45.00 per session, twenty-two sessions of 0.25 hours of education, $210.00 for documentation by a chiropractor, one hour of planning by a chiropractor, one hour of preparation by a chiropractor, twenty-two hours of provider travel time, and $200.00 for the completion of a treatment plan. The cost of the proposed goods and services amounts to $7,397.27.

9The respondent approved a one-hour initial assessment at an hourly rate of $112.81, twenty-two 1.25-hour physiotherapy sessions, twenty-two hours of provider travel time, and the completion of a treatment plan, for a total of $5,250.49. The respondent did not approve twenty-two sessions of manual therapy at a rate of $45.00 per session or twenty-two sessions of 0.25 hours of education by a physiotherapist, citing that it could be included in the already approved twenty-two sessions of 1.25 hours of therapy. The respondent also found that team meeting and file and medical documentation review by a chiropractor (listed as documentation, planning, and preparation) was not reasonable and necessary, and it denied the taxes for provider travel time because HST is not applicable to physiotherapy services.

10The applicant argues that manual therapy and education by a physiotherapist are separate services that could not be included in the approved twenty-two 1.25-hour sessions of physiotherapy because that treatment already included IFC, TENS, electrotherapy, pre- and post-session preparation, ultrasound, mobilization of the extremities, and rehabilitation exercises.

11The applicant relies on the fact that he suffered many injuries, including a brain injury, non-displaced fracture of the left glenoid rim, six rib fractures, and soft-tissue injuries to his neck, shoulders, and lower back. The applicant argues that there was no reason for the respondent to deny the additional twenty-two manual therapy sessions and education for in-home exercises and hurt versus harm principles. With respect to the team meeting and file and medical documentation review by a chiropractor, the applicant submits that he has been deemed catastrophically impaired and as such, case managers are needed to manage his more complicated rehabilitation. However, at the time the treatment plan was proposed the applicant had not yet been deemed catastrophically impaired, and therefore did not know that case manager services were available to him. The applicant further submits that he had other injuries that treatment providers needed to be aware of in managing his physical injuries, and because of his brain injury and cognitive impairment, he was unable to communicate the extent of his injuries. That required his providers to review his medical records.

12The respondent argues that the treatment plan contains no explanation as to why an additional twenty-two sessions of manual therapy, each costing $45.00, and twenty-two sessions of education, each costing $24.94, are reasonable and necessary in addition to the already approved 1.25-hour physiotherapy sessions. The respondent submits that there is no explanation as to how the approved therapy treatment differs from the manual therapy that was denied, or why team meeting and file and medical review by a chiropractor is reasonable and necessary for treatment to be provided by a physiotherapist.

13The respondent argues further that there is no explanation as to how the applicant, who sustained a significant head injury and other injuries just two months earlier, could sustain the proposed amount and duration of physiotherapy. Though the applicant submits that the education portion of the treatment plan was for in-home exercises and hurt versus harm principles, the respondent maintains that none of that information is contained in the treatment plan itself.

14The respondent submits that physiotherapists are tax exempt, and therefore HST is not payable. Additionally, the applicant was not deemed CAT at the time the treatment plan was proposed, and therefore the respondent is not required to pay for case manager services pursuant to s. 17(1) of the Schedule.

15I am not persuaded by the applicant’s submissions. I find that while the treatment plan proposes treatment services that are all provided by a physiotherapist, the applicant has not justified why a duplication of services such as planning and support services, outside of what has already been approved, is reasonable and necessary for a non-treating chiropractor.

16The applicant has also not convinced me, on a balance of probabilities, that extremity mobilizations and hurt versus harm education could not be included in what are already lengthy physiotherapy sessions of 1.25 hours each, or that mobilizations, which are already listed as part of the 1.25-hour sessions, require additional blocks of time. While I am mindful of the severity of the applicant’s injuries, I find that the evidence does not justify how or why the additional services are warranted or could not be incorporated into the time allowed for the approved 1.25-hour sessions. I am not convinced that the applicant’s injuries alone justify these additional amounts of treatment. I find that the same reasoning applies to the preparation services that are already included in the 1.25-hour therapy sessions which are essentially duplicated for the non-treating chiropractor.

17I concur with the respondent that physiotherapists and chiropractors are exempt from charging taxes for their services in Ontario, and the applicant has not provided any responsive submissions in that regard. I also do not find that the proposed fees for planning, preparation, and documentation are reasonable and necessary as proposed for both the non-treating chiropractor and treating physiotherapist because they are duplicative and unjustified in rendering the proposed treatment.

18For these reasons, I find on a balance of probabilities that the disputed portion of the plan for physiotherapy services is not reasonable and necessary.

19I find, on a balance of probabilities, that the applicant is not entitled to $552.85 ($992.85 less $440.00 approved) for assistive devices.

20The treatment plan submitted by Dylan Laupacis, occupational therapist, at Healthbound, proposes a 12-month Happy Neuron Pro subscription at a cost of $240.00, a one-drawer plastic mobile file cabinet at a cost of $62.59, a sports car model Beetle at a cost of $31.99, a sports car model McLaren at a cost of $89.99, a model car kit MS11 British GP at cost of $199.99, shipping and handling at a cost of $24.68, contact and file management at a cost of $80.00, and documentation at a cost of $200.00, for a total cost of $992.85 including taxes.

21The applicant submits that Mr. Laupacis recommended a subscription to Happy Neuron Pro to allow him to engage in cognitive remediation activities that target areas he has difficulties with as a result of his brain injury. The applicant also submits that the filing cabinet is reasonable and necessary to make it easier for him to keep track of his paperwork, and the model car kits of varying difficulty would allow him to improve his ability to sustain concentration, train his coordination, and engage in a previously enjoyed hobby that would provide mental health benefits.

22The applicant argues that he provided the respondent with a progress report from Mr. Laupacis, the applicant’s treating occupational therapist, on December 2, 2021, but it was not until March 20, 2024, that the respondent advised that it would approve the Happy Neuro Pro subscription at a cost of $240.00, as well as $200.00 for documentation as an attempt to resolve the issues in dispute on this application.

23The respondent submits that as an act of good faith it agreed to fund the Happy Neuron Pro subscription but argues that the subscription was not reasonable and necessary when it was proposed just three months after the applicant’s significant brain injury. The respondent submits that according to a progress report from Mr. Laupacis, the personalized remediation program for Happy Neuron Pro would be created from the results of the Brain FX360 assessment. The Brain FX360 assessment, however, was not completed until February 10, 2022, and the report was not completed until May 23, 2022. The respondent also submits that the applicant was not deemed CAT until January 2024.

24According to the respondent, there is no evidence to support that a filing cabinet and model car kits are reasonable and necessary as proposed. The respondent also questions how the applicant could use the proposed model car kits just 2.5 months after sustaining a moderate traumatic brain injury and major neurocognitive disorder.

25I am not persuaded by the applicant’s submissions that a mobile filing cabinet or model cars of varying costs from $31.99 to $199.99 are reasonable and necessary. The applicant has not convinced me that he did not already have a means to organize his paperwork at home, or why a $31.99 model car was needed in addition to model cars up to $199.99, and whether he already has the proposed model cars or other model cars he could work with at home because it was a previous hobby of his. As a result, I am not satisfied, on a balance of probabilities, that the denied assistive devices are reasonable and necessary. It then follows that the applicant would not be entitled to $24.68 for shipping and handling or $80.00 for contact and file management.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

Award

27The 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.

28The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.

29The applicant has requested an award of 50% plus interest related to medical and attendant care benefits which were denied as a result of the respondent’s unreasonable denial of the CAT determination, including:

i. $6,000.00 per month for attendant care benefits from June 9, 2021, to ongoing;

ii. $2,146.78 (($7,397.27 less $5,250.49 approved) for physiotherapy services, proposed by Healthbound on August 9, 2021; and

iii. $4,838.49 for social worker sessions, proposed by Healthbound on December 12, 2022.

30As background, the respondent accepted that the applicant was catastrophically impaired by way of letter dated January 16, 2024, after receiving medical records from St. Michael’s Hospital on January 4, 2024. Those records contained a CT scan completed June 9, 2021, and a subsequent MRI confirming a post-traumatic brain injury on June 19, 2021.

31The applicant submits it was unreasonable for the respondent to insist on the diagnostic imaging reports before making a CAT determination on criterion 4 when there is no requirement in the Schedule that the diagnostic imaging reports be provided, and especially when a summary of the CT scan report was contained in the discharge summary from St. Michael’s Hospital that was provided to the respondent and reviewed on August 4, 2021. The applicant also submits that this withholding was made worse given the fact that he exhausted his non-CAT med/rehab benefits on June 26, 2023.

32The applicant argues that he made 23 written requests and five verbal requests for the St. Michael’s Hospital diagnostic imaging reports from December 2, 2021, to January 4, 2024, after they were requested by the respondent. He submits that these requests can be seen in the MedChart Request Tracker, which confirms that the applicant could not have obtained the documents earlier.

33The applicant submits that the respondent acted in an unfair, excessive, imprudent, stubborn, inflexible, and unyielding manner in the way it unreasonably denied the treatment plan for assistive devices. The applicant argues that in denying the assistive devices, the respondent simply stated that there was no documentation to support that they would be beneficial to the applicant. According to the applicant, this is despite the respondent having the occupational therapy report of Mr. Laupacis which opined that he was having ongoing issues with cognitive functioning. There was also never a request for an IE.

34The respondent did not provide any responsive submissions related to the s. 10 award associated with the treatment plan for assistive devices, but it did submit that it has maintained that it required the actual diagnostic imaging reports to determine if the applicant sustained a CAT impairment pursuant to s. 3.1(1)4i. of the Schedule. The respondent also submits that while the CT scan and MRI results were summarized in the discharge summary, it is still entitled to request the diagnostic imaging reports to satisfy itself that the applicant’s traumatic brain injury meets the criteria set out in the Schedule, prior to making a CAT determination.

35The respondent submits that the applicant acknowledges that the diagnostic imaging reports were not provided until January 4, 2024, almost 11 months after the OCF-19 was submitted, and that MedChart requests confirm that the applicant did not initially request the information in a timely manner, as claimed. The respondent argues that there is no indication as to why the diagnostic imaging reports were not requested at the applicant’s various follow-up appointments, and why despite the respondent’s numerous s. 33 requests for hospital records and other medical documents, they were not provided until many months later.

36The respondent submits that it could have enforced its rights under s. 33(6) and stopped payment of any benefits until the applicant complied with its requests. The respondent could have also delayed the CAT determination by requesting IEs. The respondent also engaged in good faith settlement discussions with the applicant to attempt to resolve the matter or narrow the issues in dispute, as is evident through the reduced number of issues that have gone forward to this hearing.

37I have considered the fact that Dr. Hiten Lad, neuropsychologist, first submitted an OCF-19 on behalf of the applicant on or around February 16, 2023. The OCF-19 noted that the applicant met CAT Criterion 4 and that he had a GOS-E of 3, indicating a lower severe disability. On February 28, 2023, the respondent acknowledged receipt of the OCF-19 and cited that it was unable to assess s. 3(1)4ii. of the Schedule until 4i. was met. The respondent noted that it was therefore unable to proceed to an IE. Specifically, the respondent submitted that it did not have any diagnostic reports to confirm that s. 3(1)4i was met.

38I agree with the applicant that the discharge summary from St. Michael’s Hospital dated June 25, 2021, outlines that a CT scan of the applicant’s brain demonstrated traumatic injuries including a subarachnoid hemorrhage at the right frontal sulci and a suspected subdural hematoma at the right anterior parafalcine region. The discharge report also noted that an MRI of the brain dated June 19, 2021, showed a diffuse axonal injury.

39I do not agree with the respondent’s submission that s. 3.1(1)4i. of the Schedule requires the diagnostic report to determine if the applicant sustained a CAT impairment under Criterion 4. I do, however, find that the discharge report only satisfies the first part of the two-part test outlined in s. 3(1)4 of the Schedule. The second part of the test was not satisfied until February 16, 2023, and I find that the respondent had no part in delaying that timeline.

40I have also considered the fact that the applicant did not exhaust his non-CAT med/rehab benefits until June 23, 2023, and once the respondent received the diagnostic reports from St. Michael’s Hospital on January 4, 2024, it was only a matter of a few days before the respondent deemed the applicant to be CAT impaired without requesting any IEs. In response to the applicant’s OCF-19 and Dr. Lad’s report in February 2023, the respondent could have delayed the CAT determination by requesting its own IEs which would have taken many months to complete, and further delay could have resulted if any addendums or rebuttals had been required by either party. I have also already found that the $2,146.78 for physiotherapy services was not reasonable and necessary, and therefore not payable.

41For all of these reasons, I am not satisfied on a balance of probabilities that any delay in this case meets the very high threshold to grant an award under s. 10.

ORDER

42I find that the applicant is not entitled to any of the disputed benefits, nor interest nor an award.