Licence Appeal Tribunal File Number: 18-012511/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:
Jennifer Forsythe
Applicant
and
Aviva General Insurance Company*
Respondent
DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Ian Drong, Counsel
For the Respondent: Marcin Panasewicz, Counsel
HEARD: By written submissions
OVERVIEW
1Jennifer Forsythe, the applicant, was involved in an automobile accident on March 9, 2017, 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, Insurer, 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 $789.39 for an expense relating to physiotherapy and an assistive vacuum, submitted on an OCF-6 claim form dated October 1, 2018?
ii. Is the respondent liable to pay an award under s. 10 of 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?
3This application has a lengthy and complex procedural history. The above three issues are the only ones that remain unresolved at the time of this written hearing.
RESULT
4The applicant is not entitled to the disputed expenses, an award, nor interest.
ANALYSIS
5Under s. 38(2) of the Schedule, insurers are not liable to pay medical or rehabilitation benefits that are incurred before the insured person submits a treatment plan approved by a health practitioner.
6The applicant notes that she submitted an expense claim form (OCF-6) for physiotherapy and an assistive vacuum on October 1, 2018. She submits that the respondent ignored its fiduciary duty to her by not responding to this claim for benefits until after she filed an application to the Tribunal. She also points to other examples where, in her view, the respondent failed to properly adjust her file and concludes her submissions by stating that the OCF-6 ought to be paid.
7The respondent submits that the applicant’s submissions exclusively pertain to the award and that she has not met her onus of establishing entitlement to the benefits in dispute.
8The OCF-6 is not in evidence. The Tribunal only has submissions on the disputed benefits. Submissions are not evidence, and as such, there is no evidentiary basis to establish the particulars of the OCF-6.
9In any event, the OCF-6 apparently contains two types of expenses: physiotherapy and an assistive vacuum.
10Physiotherapy is a medical benefit. The applicant makes no submissions to explain why the respondent is liable under the Schedule to pay for a medical benefit that was incurred before a treatment and assessment plan was submitted as required by s. 38(2) of the Schedule. In fact, there is no evidence of a treatment plan being submitted for any of the benefits in dispute. As such, I find that the applicant has not established her entitlement to physiotherapy.
11The applicant is also seeking payment for the assistive vacuum which apparently is also listed in the OCF-6. The applicant cites a letter by Dr. Joseph Scanlon dated October 15, 2018 which states:
The above patient is experiencing ongoing neck and back pain from her pervious MVC. It is advised that she have a lighter vacuum and an extendable brush for cleaning.
12The applicant cites the letter but makes no submissions on why the vacuum cleaner is a reasonable and necessary medical benefit. She also does not explain why the respondent is liable to pay a medical benefit that was incurred without ever submitting a treatment and assessment plan. Consequently, I find that the applicant has not established that she is entitled to this medical benefit.
Interest
13As there are no overdue benefits, the applicant is entitled to interest pursuant to s. 51 of the Schedule.
Award
14The 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.
15I find there is insufficient evidence to show that the respondent’s conduct warrants an award. As such, no award is payable.
ORDER
16The applicant is not entitled to the disputed expenses, an award, nor interest.
Released: April 10, 2024
Harry Adamidis
Adjudicator