Licence Appeal Tribunal File Number: 21-010760/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:
[T.A]
(A minor by her litigation guardian, [P.A])
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Ben Irantalab, Counsel
For the Respondent:
Mr. Matthew Samuels, Counsel
HEARD:
By written submissions
OVERVIEW
1[T.A], the applicant, was involved in an automobile accident on July 4, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The parties agree that the preliminary issue in dispute is as follows:
(i) Is the applicant barred from a hearing on all of the substantive issues because the applicant failed to attend an insurer’s examination (IE)?
ANALYSIS
3The applicant was a two year old minor at the time of the accident. She was notified on January 19, 2021 of the requirement to attend an IE on a date to be determined. Counsel for the applicant advised the respondent on January 22, 2021 by way of a faxed letter that the applicant would not attend any in-person IE because of her age and safety concerns related to Covid-19.
4The applicant submits that attending an in-person IE would have further deteriorated her already deteriorating mental and physical health. She also submits that the issues in dispute are modest treatment plans that could be adequately assessed by virtual assessments or a paper review during the Covid 19 pandemic. The applicant asks the Tribunal to exercise its discretion under s. 55(2) of the Schedule to permit the application to proceed.
5The respondent submits that it gave proper notice of the IEs under s. 44(5) of the Schedule. It further submits that requests for examinations have been timely, made in good faith and appropriate given its rights and obligations under the Schedule. According to the respondent, the applicant has not provided a reasonable basis for her refusal to attend any IE.
6Section 44(5) of the Schedule requires the notice of an IE to provide the name of the person conducting the IE and the day, time and location of the examination. The respondent’s notice, found at Tab 6 of their brief, provides neither. As such, the respondent’s notice does not comply with s. 44(5) because of this missing information.
7I find that the applicant did not fail to comply with a notice to attend an IE because the notice does not conform to the requirements of s. 44(5) of the Schedule. Consequently, I further find that the applicant is not barred from proceeding with this application under s. 280 of the Insurance Act.
ISSUES
8The substantive issues in dispute are:
i. Is the applicant entitled to a medical benefit in the amount of $1,272.00 for physiotherapy services, proposed by Resolution Physiotherapy & IMS Clinic in a treatment plan/OCF-18 (“plan”) submitted December 8, 2020 and denied on January 19, 2021?
ii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
9The applicant is not entitled to the treatment plan, nor interest.
10The respondent is not liable to pay an award.
ANALYSIS
11To 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.
12The applicant submits that she continues to struggle with range of motion limitations in her neck and has pain in her shoulder. She relies on the reports of two physiotherapists, Ms. [K.P] and Ms. [C.G], to establish that this treatment plan is reasonable and necessary.
13The respondent submits that it has not received any recent records from treating physicians or treatment centers. A 2016 note from Dr. [V.S], pediatrician, states that the applicant is thriving, developing well, and that her parents have no acute concerns. The respondent also relies on the assessment of Ms. [A.P], occupational therapist, which states that the applicant’s mother denied any pain behaviours by the applicant. The respondent submits that this plan is not reasonable and necessary.
14The reports of Ms. [P] and Ms. [G] are identical, except for the two different typewritten signatures at the end. Both reports are also dated July 11, 2017. Who actually wrote the report is unknown. Consequently, I give no weight to these reports as the authorship is unclear.
15The Occupational Therapy Attendant Care Assessment report, dated January 3, 2017, by Ms. [P] is based on an in-home evaluation that took place on December 16, 2016. The applicant’s mother provided the information to Ms. [P] as the applicant was 4 years old when the evaluation took place.
16The applicant’s mother denied observing any pain behaviours. The mother reported that the applicant has no need for medication and sleeps well. Ms. [P] observed the applicant walking, standing, exhibiting normal dynamic balance, sitting, bed mobility, squatting and kneeing, reaching, lifting and carrying, and stair climbing. No active range of motion or strength limitations were observed by Ms. [P].
17The report of Ms. [P] is the most recent evaluation which can be relied upon. There is no indication in this report that the applicant continues to experience pain. As such, I find that there is insufficient evidence to establish, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary.
18As there are no outstanding benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
19The 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.
20As there are no benefits unreasonably withheld or delayed, the respondent cannot be found liable to pay an award.
ORDER
21The applicant is not entitled to the treatment plan, nor interest.
22The respondent is not liable to pay an award.
Released: January 18, 2024
__________________________
Harry Adamidis
Adjudicator