Tang v. Economical Mutual Insurance Company, 2024 CanLII 126939

Citation: Tang v. Economical Mutual Insurance Company, 2024 ONLAT 22-011152/AABS

Licence Appeal Tribunal File Number: 22-011152/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:

The Estate of Daniel Tang, deceased

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Margaret Tang, Estate Trustee

For the Respondent: Stephen Whibbs, Counsel

HEARD: By way of written submissions

OVERVIEW

1Daniel Tang, the applicant, was involved in an automobile accident on April 19, 2018, 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.

2The applicant passed away on September 15, 2021. On October 14, 2022, the applicant’s spouse and estate trustee Margaret Tang (“Estate Trustee”) filed an application with the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) on behalf of the applicant for resolution of the dispute.

PRELIMINARY ISSUES

3At the case conference held on August 8, 2023, the respondent raised two preliminary issues:

i. Is the applicant barred from proceeding with a claim for catastrophic impairment under section 55 (1) 1 of the Schedule as they have not filed an OCF-19 Application for Determination of Catastrophic Impairment?

ii. Is the applicant barred from proceeding with a claim for $20,000.00 for chiropractic services under section 55 (1) 1 of the Schedule as they have not filed an OCF-18 Treatment and Assessment Plan?

SUBSTANTIVE ISSUES

4The substantive issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

ii. Is the applicant entitled to $20,000.00 for chiropractic services, proposed by Active Care Health Services in a treatment plan dated March 8, 2019?

iii. Is the applicant entitled to $2,825.00 for chiropractic services, proposed by Active Care Health Services in a treatment plan dated August 20, 2021?

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

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

RESULT

5On the preliminary issues, I find that the applicant is not able to proceed with the issues of catastrophic impairment and the treatment plan for $20,000.00 of chiropractic services, as the Tribunal does not have jurisdiction to adjudicate these issues.

6On the substantive issues, I find that:

i. The applicant has not demonstrated entitlement to the treatment plan dated August 20, 2021 for $2,825.00 of chiropractic services;

ii. No interest or award is owing;

iii. The application is dismissed.

PROCEDURAL ISSUES

7In its written hearing submissions, the respondent requests that the application be summarily dismissed, since the applicant’s Estate Trustee has not provided any written hearing submissions for this hearing. The respondent acknowledges that the Estate Trustee has filed some medical documents and particulars for a special award claim, however, it argues that these materials do not assist the Tribunal in adjudicating the issues in dispute. The respondent also argues that it has a right to know the case against it, and that the complete lack of submissions meant that it had to file responding submissions “in the dark”.

8The respondent’s request to summarily dismiss the applicant’s application is denied.

9While I agree with the respondent that the Estate Trustee did not file formal written hearing submissions, she did file medical documentation and particulars of a claim for a special award. The particulars of the claim for a special award appear to be a brief summary of the Estate Trustee’s position on the applicant’s case. Although this document was not formally identified as written hearing submissions, I will consider this document, along with the medical evidence as part of this written hearing proceeding.

10In considering the evidence submitted by the Estate Trustee, I am mindful of her status as a self-represented party. Rule 24.1 of the Licence Appeal Tribunal Rules, 2023 states a party does not need to be represented to participate in the Tribunal’s proceedings. A self-represented party must still meet the legal standards necessary to make their case, and the Tribunal will not act as an advocate for self-represented parties. However, an adjudicator must be mindful of the unique challenges facing self-represented parties, including the possibility that they may not be well-versed in the procedural intricacies of the Tribunal. Therefore, as the particulars of special award claim appear to be a short summary of the Estate Trustee’s arguments on behalf of the applicant, I will consider these submissions, along with the medical evidence submitted by the Estate Trustee.

PRELIMINARY ISSUES

Can the Tribunal consider the issue of catastrophic impairment?

11I find that the Estate Trustee cannot proceed with the issue of catastrophic impairment, as the Tribunal does not have jurisdiction to adjudicate this matter.

12The respondent submits that to date, neither the applicant nor the Estate Trustee have ever submitted an Application for Determination of Catastrophic Impairment (“OCF-19”). No assessments have ever been conducted on the issue of catastrophic impairment, and the respondent argues that there is no medical evidence or opinion substantiating that the applicant suffered a catastrophic impairment. It cites s. 45 of the Schedule to argue that a completed OCF-19 is required before a claim for catastrophic impairment can be considered by an insurer. Since there was no OCF-19 or application for a catastrophic designation, there was no denial by the respondent and as such, the question of catastrophic impairment cannot be considered as an issue in dispute in this written hearing.

13The Estate Trustee did not provide any submissions or arguments on the issue of catastrophic impairment. Nor did the Estate Trustee submit a copy of an OCF-19 or any medical opinion or evidence supporting a catastrophic designation.

14Section 45(1) of the Schedule is clear that an insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is catastrophic. However, an OCF-19 must be submitted to an insurer as part of the process set out in s. 45(1) of the Schedule. Without any evidence that an OCF-19 was submitted by the applicant or the Estate Trustee, I find that the issue of catastrophic designation is not properly before the Tribunal. As such, the Tribunal does not have jurisdiction to adjudicate this issue.

Can the Tribunal consider the issue of the treatment plan in the amount of $20,000.00 for chiropractic services?

15I find that the Estate Trustee cannot proceed with the issue of the treatment plan in the amount of $20,000.00, as the Tribunal does not have jurisdiction to adjudicate this matter.

16The respondent submits that it has never received a treatment plan (“OCF-18”) in the amount of $20,000.00 for chiropractic services from Active Care Health Services. While it concedes that other OCF-18s had been received from Active Care Inc. and were responded to, it argues that no OCF-18 has been provided which matches the description of the OCF-18 for $20,000.00 alleged by the Estate Trustee. The respondent argues that since this OCF-18 was never submitted, it was never denied and as such, the issue cannot be considered by the Tribunal.

17The Estate Trustee did not provide any submissions or arguments with respect to the OCF-18 dated March 8, 2019 in the amount of $20,000.00 of chiropractic services. Nor has a copy of such an OCF-18 been provided by the Estate Trustee as evidence in this written hearing.

18Section 38(1) of the Schedule applies to any claim for medical or rehabilitation benefits and s. 38(3) requires an application for benefits to be submitted via a treatment plan that is completed and signed by a “regulated health professional.” The Estate Trustee has not led any evidence establishing that such a treatment plan was submitted. As such, I agree with the respondent that if the OCF-18 was not submitted, it could not be denied.

19Section 280(2) of the Insurance Act states that the insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1). Subsection (1) refers to disputes regarding an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. In the present matter, if there is no denial, then there is no dispute. As such, I find that the Tribunal does not have jurisdiction to adjudicate the issue of the OCF-18 in the amount of $20,000.00, and as such, this issue cannot proceed to the substantive portion of the hearing.

SUBSTANTIVE ISSUES

OCF-18 dated August 20, 2021 in the amount of $2,825.00 for chiropractic services

20I find that the Estate Trustee has not established the applicant’s entitlement to the OCF-18 dated August 20, 2021.

21Sections 14 and 15 of the Schedule set out that an insurer is liable to pay medical benefits that shall cover all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

22The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

23The Estate Trustee has not provided any specific submissions with respect to this treatment plan. Rather, in the particulars of the claim for a special award, the Estate Trustee makes the general claim that the applicant had felt better after initially receiving acupuncture and chiropractic treatment. She further argues that once the applicant had been denied ongoing treatment by the respondent, he was forced to rely on only Tylenol for his pain, until he fell, leading to his hospitalization from which he never recovered.

24The respondent submits that the Estate Trustee has not led any evidence that the applicant’s fall was linked to any accident-related impairment. Rather, the limited medical evidence provided by the Estate Trustee establishes that the applicant suffered from nasal cancer before the accident, which continued after the accident. The respondent argues that the letter provided by Dr. Chung on August 14, 2023, relied on by the Estate Trustee, only states that Dr. Chung had visited the applicant at a palliative home following a fall. Dr. Chung recommended that the applicant use a cane and the applicant subsequently went to the hospital.

25The respondent argues that it properly denied the August 20, 2021 treatment plan. In its denial letter the respondent stated that it was more than three years after the accident, that it had not received a treatment plan for physical injuries for over two years, and that its physiatry assessor had previously recommended limited treatment, which the respondent had approved. It advised the applicant that a s. 44 assessment would be required to assess whether the proposed treatment would be reasonable and necessary. However, the applicant passed away less than two weeks later.

26I find that the Estate Trustee has not established that the proposed chiropractic treatment was reasonable and necessary. Although the Estate Trustee links the applicant’s fall in 2021 to his accident-related pain, I have not been directed to any medical evidence or opinion from a treating physician that the applicant’s fall in 2021 or hospitalization was as a result of injuries from the accident, rather than complications or weakness relating to his nasal cancer. Nor have I been provided with evidence that the applicant’s treating physician recommended chiropractic treatment at the time the OCF-18 was submitted in August 2021.

27The onus to prove the reasonableness and necessity of the proposed treatment rests with the applicant. Without specific submissions or evidence in support of additional chiropractic treatment, I find that the Estate Trustee has not established entitlement to the treatment plan.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, the applicant is not entitled to interest.

Award

29The Estate Trustee sought an award under s. 10 of Regulation 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. The Estate Trustee submits that the applicant’s fateful fall was as a result of the respondent’s denial of ongoing treatment. She submits that the applicant had been forced to rely on only Tylenol from January 2019 until the time he fell. The Estate Trustee further submits that the respondent had intimidated her and the applicant.

30The respondent submits that no treatment was unreasonably withheld and that no award is owing. Rather, it argues that the OCF-18 in dispute was the first treatment plan that had been submitted in two and a half years. The respondent submits that it had previously funded over $30,000.00 in medical and rehabilitation benefits, and that no evidence has been led to establish that additional physical treatment was reasonable and necessary.

31I find that the Estate Trustee has not established a basis for an award. Although she makes a general argument that necessary treatment was withheld by the respondent, I have not been directed to medical evidence in support of this claim. As such, the respondent is not liable to pay an award.

ORDER

32On the preliminary issues, I find that the applicant is not able to proceed with the issues of catastrophic impairment and the treatment plan for $20,000.00 of chiropractic services, as the Tribunal does not have jurisdiction to adjudicate these issues.

33On the substantive issues, I find that:

i. The applicant has not demonstrated entitlement to the treatment plan dated August 20, 2021 for $2,825.00 of chiropractic services;

ii. No interest or award is owing;

iii. The application is dismissed.

Released: December 23, 2024

__________________________

Ulana Pahuta

Adjudicator