Licence Appeal Tribunal File Number: 21-006156/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:
Samanntha Clark
Applicant
and
The Commonwell Mutual Insurance Group
Respondent
DECISION
ADJUDICATOR:
Julia Fogarty
APPEARANCES:
For the Applicant:
Samanntha Clark, Applicant
Micheal Lee, Counsel
For the Respondent:
Cecil Jaipaul, Counsel
HEARD: In Writing
February 15, 2024
OVERVIEW
1Samanntha Clark, the applicant, was involved in an automobile accident on March 15, 2019, 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, The Commonwell Mutual Insurance Group (the “Insurer”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was stopped in the southbound left turn lane on Warden Avenue in her father’s 2006 Pontiac G6 Sedan when she was struck head-on by a driver attempting to make a left turn onto northbound Warden Avenue at around 4:50 pm. A few hours later, at 8:00pm she attended the Markham Stouffville Hospital where she was diagnosed with whiplash and a concussion, given Tylenol, discharged and sent home.
3As a result of injuries sustained from the accident, she was later removed from the Minor Injury Guideline (“MIG”).
PRELIMINARY ISSUES
4Is the applicant barred from receiving payment for benefits for the period of August 23, 2021 to November 3, 2021 due to non-attendance at a s.44 insurer’s examination?
5Is the applicant statutorily time-barred from proceeding with the following claims pursuant to s.56 of the Schedule:
i. Is the applicant entitled to $3,047.13 outstanding for a physiotherapy assessment, treatment, medical devices and transportation fees, proposed by Markham Health Network in a treatment plan submitted April 3, 2019 for $5,247.13, denied April 16, 2019 and partially approved on May 1, 2019 for $2,200.00?
ii. Is the applicant entitled to $2,034.00 for a brainscope, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 an denied May 2, 2019?
iii. Is the applicant entitled to $2,486.00 for a SPECT scan, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 and denied May 2, 2019?
6Should the following records be excluded due to late or non-service to the respondent by the applicant:
i. The Neurology Assessment of Dr. Manu Mehdiratta, dated July 31, 2019; and
ii. The Chronic Pain Assessment of Dr. Igor Wilderman, dated May 25, 2022.
ISSUES
7The issues in dispute are:
i. Is the applicant entitled to $3,047.13 outstanding for a physiotherapy assessment, treatment, medical devices and transportation fees, proposed by Markham Health Network in a treatment plan submitted April 3, 2019 for $5,247.13, denied April 16, 2019 and partially approved on May 1, 2019 for $2,200.00?
ii. Is the applicant entitled to $2,983.21 for physiotherapy, proposed by Markham Health Network in a treatment plan submitted July 3, 2019 and denied July 23, 2019?
iii. Is the applicant entitled to $2,034.00 for a brainscope, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 an denied May 2, 2019?
iv. Is the applicant entitled to $2,486.00 for a neurological assessment, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 and denied May 2, 2019?
v. Is the applicant entitled to $2,486.00 for a SPECT scan, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 and denied May 2, 2019?
vi. Is the applicant entitled to $2,260.00 for an in-home assessment and form 1, proposed by Vision Diagnostics in a treatment plan submitted April 1, 2019 and denied May 1, 2019?
vii. 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?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8The applicant is barred from receiving payments for the period of August 23, 2021 to November 03, 2021 due to non-attendance at a s.44 assessment.
9The following issues are not barred from proceeding due to COVID-related time limitations being extended:
i. Is the applicant entitled to $3,047.13 outstanding for a physiotherapy assessment, treatment, medical devices and transportation fees, proposed by Markham Health Network in a treatment plan submitted April 3, 2019 for $5,247.13, denied April 16, 2019 and partially approved on May 1, 2019 for $2,200.00?
ii. Is the applicant entitled to $2,034.00 for a brainscope, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 an denied May 2, 2019?
iii. Is the applicant entitled to $2,486.00 for a SPECT scan, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 and denied May 2, 2019?
10No medical reports or records in the applicant’s document brief for this hearing shall be excluded nor an adverse inference drawn.
11The applicant is entitled to a neurological assessment.
12The applicant has not met the burden of proof to establish entitlement to a brainscope, SPECT Scan, physiotherapy assessment, physiotherapy treatments, medical devices, transportation fees, an in-home assessment and form 1, or an award under s. 10 of O. Reg. 664.
13Pursuant to s.51 interest applies to the payment of overdue benefits.
PRELIMINARY ISSUES
Non-attendance at a s.44 assessment
14The respondent submits, in their written hearing submissions, that no benefits are payable for the period of August 23, 2021 to November 3, 2021. The basis for this is a missed s.44 insurer’s examination by the applicant on August 23, 2021. The applicant later attended for the missed examination on November 3, 2021.
15The respondent submits that the applicant did not provide a valid reason for missing the appearance and as such no benefits are payable for that period of time.
16The applicant submits that correspondence was provided to the respondent on September 23, 2021 which clarified that the applicant’s mother had to be taken to the emergency room at Uxbridge Hospital on the date of the examinations, which was the reason for the missed appearance and asked that the examination be rescheduled as soon as possible.
17I accept that an emergency attendance at a hospital is a valid reason for missing the examination. The respondent is correct that under the s. 37(7) of the Schedule the insurer is entitled to withhold benefits for the period of non-compliance from August 23 to November 3, 2021.
Timelines
18Is the applicant time barred from proceeding with the following claims pursuant to s.56 of the Schedule:
i. Is the applicant entitled to $3,047.13 outstanding for a physiotherapy assessment, treatment, medical devices and transportation fees, proposed by Markham Health Network in a treatment plan submitted April 3, 2019 for $5,247.13, denied April 16, 2019 and partially approved on May 1, 2019 for $2,200.00?
ii. Is the applicant entitled to $2,034.00 for a brainscope, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 an denied May 2, 2019?
iii. Is the applicant entitled to $2,486.00 for a SPECT scan, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 and denied May 2, 2019?
When did the limitations period expire?
19The applicant filed this application on May 18, 2021. Three treatment plans under this application are challenged for being time-barred.
20Section 56 of the Schedule provides that an application disputing an insurer’s denial of benefits shall be commenced within two years of the insurer’s refusal to pay.
21The relevant details of the treatment plans at issue are as follows:
Issue
Date of OCF-18
Date Denied
Limitation
Date Application Filed
How late
i.
April 3, 2019
April 16, 2019
April 16, 2021
May 18, 2021
33 days
iii.
April 29, 2019
May 2, 2019
May 2, 2021
May 18, 2021
16 days
v.
April 29, 2019
May 2, 2019
May 2, 2021
May 18, 2021
16 days
On what grounds can the timelines be extended?
22O. Reg. 73/20: Limitation Periods was enacted to respond to the COVID-19 pandemic, which tolled all limitation periods for 183 days retroactive to March 16, 2020 and was later revoked on September 14, 2020.
23This legislation gives the Tribunal discretion to allow an extension of the timelines. The applicant argues that; further to Shih v. Economical Insurance, 2021 CanLII 18943 (ON LAT); there is no need to establish that the pandemic “contributed or caused” the late filing because the freeze to the timelines is automatic and that “putting the evidentiary burden on a party seeking to avail itself of this limitation freeze would be at odds with the clear purpose of the emergency regulation”. Requiring the applicant to bear the burden of proof to establish that they should be entitled to the limitation freeze would be “requiring these already stretched legal practitioners to take on an additional evidentiary burden to access this remedy would not be in the spirit of the regulation.”
24To demonstrate the disruption caused by the pandemic and justify why the applicant should be granted an extension of the timelines the applicant highlights an email sent to his staff on March 23, 2020 temporarily laying off his staff. A second email is sent to his staff on April 20, 2020 regarding reopening where the applicant’s lawyer indicates to his office they will resume full operations on May 12, 2020. As such, for a period of 50 days the applicant’s lawyer’s office was closed.
25The applicant argues that as a result the limitation period for the challenged claims were extended respectively from April 16, 2021 to October 16, 2021; and from May 2, 2021 to November 2, 2021.
26The respondent takes an opposing position on the issue of the limitation period. Specifically, that the case relied upon Shih v. Economical, is not binding on my decision today and that O. Reg 73/20 cannot be interpreted in the all-encompassing manner argued by the applicant.
Result
27In line with paragraph 11 of Evans v. Burkman, 2022 ONSC 5038 which rejects the argument that the revocation of the regulation relied on by the applicant resulted in a revocation of any benefit conferred by the tolling of the limitations period, I do find that the timelines are extended for the period advanced by the applicant.
28As such, I find that the period tolled by the regulation does count against the timelines and the applicant properly filed these treatment plans within the limitations period.
The inclusion of the applicant’s records and reports
29The respondent raised the issue of documents, requesting that documents either be excluded or a negative inference drawn against the applicant on the basis of late or non-service. The respondent cites r. 64 of the Schedule as authority to justify this request. Section. 64(2)(a) states that providing documents to a “solicitor or authorized person” is acceptable by fax and how documents should be addressed if sent directly by mail to an insurance company. Nothing in the section invalidates the service of documents to an insurer’s lawyer.
30The applicant clarified dates when the documents flagged were served and highlighted the lack of prejudice to the respondent because the date of service fell on a holiday and those documents were provide immediately thereafter. Additionally, copies of many of the documents had been previously provided in a document brief sent to counsel in November. For example, copies of the report of Dr. Manu Mehdiratta were provided in May 2021, November 2022 and April 2023. As such, the respondent had full knowledge of the contents of the report.
31The respondent additionally cites two cases in support of its position, Smith v. Intact, 2021 CanLII 28712 (ON LAT) and Al-Basheky v. Co-Operators General Insurance Company, 2023 CanLII 40116 (ON LAT). I disagree with the conclusions drawn for the following reaons:
i. The respondent argued that service to a lawyer only is insufficient in providing documents. I disagree with the caselaw cited in support of this position. The lawyer is the agent for the insurer, and as such service on the lawyer is service on his client.
32Additionally, service of a document that is known to the parties within a few short days of a deadline does not present significant prejudice to the parties on the basis of the information before me.
33The content of those records is informative and helpful in coming to a decision and the service of those records were not so far outside the timeline that the respondent was unable to thoughtfully review and respond to these documents. Especially considering that some of the reports contained in the documents speak to the substantive issues in dispute.
34The respondent has not identified specific prejudice that would outweigh the relevance. The burden has not been met to show that the appropriate remedy would be to exclude any of the hearing records or why a negative inference should be drawn.
35I will not exclude the records or reports provided by the applicant to the Tribunal for the purpose of this hearing nor do I draw a negative inference for the very short delay in their service.
SUBSTANTIVE ISSUES
36To 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.
Physiotherapy
What are the goals of the treatment?
37The applicant is seeking payment of the following issues:
i. Is the applicant entitled to $2,983.21 for physiotherapy, proposed by Markham Health Network in a treatment plan submitted July 3, 2019 and denied July 23, 2019?
ii. Is the applicant entitled to $3,047.13 outstanding for a physiotherapy assessment, treatment, medical devices and transportation fees, proposed by Markham Health Network in a treatment plan submitted April 3, 2019 for $5,247.13, denied April 16, 2019 and partially approved on May 1, 2019 for $2,200.00?
38The applicant suffered from whiplash and a concussion directly caused by her accident, later as a result of her injuries she was subsequently diagnosed with chronic pain syndrome and other mental or physical issues. Prior to the hearing the applicant was removed from the MIG.
39In the opinion of Dr. Wilderman, a chronic pain specialist that assessed the applicant on May 25, 2022, the applicant needs physical therapy with active conditioning in the form of strengthening and stretching. Dr. Wilderman notes that the applicant expressed “experiencing relief from the treatments administered. She notes that her condition has worsened since treatments were terminated”.
40In the opinion of Dr. Desai, a neurologist, found that physiotherapy would be an appropriate treatment for the applicant during the independent medical examination conducted on June 28, 2021.
41In the opinion of Dr. Husain, the applicant’s family doctor and Dr. Chugh, a concussion specialist, the applicant should receive physiotherapy. The goals of the treatment being pain reduction, increased range of motion and return to activities of normal living. When treatment was discontinued due to lack of funding the applicant continued with treatment through OHIP.
How are those goals met to a reasonable degree?
42In the submissions of the applicant it is highlighted that:
i. The applicant experiences relief of her symptoms from the treatment; and
ii. When not receiving the treatments her symptoms worsen.
Are the overall costs of achieving the goals reasonable?
43The initial treatment plan concerning physiotherapy, was found to be partially reasonable and necessary by the respondent’s assessor, Dr. Urovitz, up to the funding limits of the minor injury guideline. The later treatment plan was denied on the basis that the minor injury guideline restricts payment of this treatment plan – a stipulation which is no longer applicable since the applicant was removed from the minor injury guideline by the respondent.
44The applicant advances, and I do not put weight on, the theory that because the limitation placed on the treatment plan was MIG and the applicant was removed from the MIG, the treatment plan should be determined to be reasonable and necessary by default. The applicant must still show, through evidence and submissions, why a treatment plan is reasonable and necessary.
Result
45It is the applicant’s burden to show how the specific treatments requested meets the goals set out and as such is missing crucial information to be able to fully identify if these treatment plans are reasonable and necessary. Things that should be included are:
i. How many sessions?
ii. What will be targeted during these sessions?
iii. How will progress be monitored?
iv. What devices are being requested?
v. What alternative devices were explored?
vi. What will those devices be used for and how will they support the applicant’s physiotherapy?
vii. What are the goals for each individual treatment plan?
viii. And more.
46The applicant has not established that physiotherapy treatments, assessment, medical devices or transportation fees are reasonable or necessary.
Neurological Assessment, Brainscope and SPECT Scan
What are the goals of the treatment?
47The applicant is seeking payment of the following issues:
i. Is the applicant entitled to $2,486.00 for a neurological assessment, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 and denied May 2, 2019?
ii. Is the applicant entitled to $2,034.00 for a brainscope, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 an denied May 2, 2019?
iii. Is the applicant entitled to $2,486.00 for a SPECT scan, proposed by Synoptic Medical Assessments in a treatment plan submitted April 29, 2019 and denied May 2, 2019?
48The respondent’s assessor, Dr. Desai, opined that a neurological assessment is reasonable and necessary to determine the extent of the applicant’s brain injury in 2021.
49The applicant submits that the goal of the SPECT scan is to assess if the applicant suffered a traumatic brain injury and its links to further psychological disorders. No goal is identified by the applicant in submissions about the brainscan.
How are those goals met to a reasonable degree?
50The respondent undertook their own neurological assessment. The applicant advances that by virtue of engaging their own neurological assessment the respondent has shown than the applicant’s neurological assessment was also reasonable and necessary.
51The applicant is noted, in the records of her family doctor, that as of July 5, 2019 she was not finding the concussion clinic helpful because all they do is discuss their feelings.
52Dr. Desai, a neurologist, opined in a June 28, 2021 s.44 report that “additional testing by way of quantitative EEG or brain SPECT scan that lacks specificity is not indicated and is unlikely to result in any substantial change to the claimant’s management.”
Are the overall costs of achieving the goals reasonable?
53The respondent submits that on December 13, 2021 they informed the applicant that Dr. Jamsheed Desai concluded that the Treatment & Assessment Plan (OCF-18) dated April 29, 20219 as completed by Dr. Manu Mehdriatta, Physician of Synoptic Medical Assessments Inc for $2,486.00 for a neurological assessment is reasonable and necessary. However the applicant has not submitted a report or invoice associated with this plan.
54Since the scans would offer no substantial changes in the claimant’s management in the opinion of Dr. Desai, and the applicant has not provided further information on why the goals of the scan would be reasonable, there is no objective evidence of why these treatment plans would be reasonable.
55Additionally it is the evidence of the applicant that these scans were referred and performed by the applicant’s own family physician at Southlake Regional Health Centre. Which further validated the need for a neurological assessment, which is in line with the opinion of Dr. Desai who said his recommendation would not have changed pending the outcome of these tests and he had already suggested the assessment is reasonable without the test.
Result
56The applicant is again missing crucial information to determine if the neurological treatment plan and scans are reasonable and necessary. For example:
i. No goals are identified for the brainscan;
ii. No information is provided on how any goals that are identified can be met to a reasonable degree;
iii. No information is provided on whether the cost of each treatment is reasonable; and more.
57The neurological assessment is admitted by the respondent to be reasonable and necessary and thus there is no dispute over this treatment plan.
58The brainscope and SPECT scan are not reasonable and necessary.
In-Home Assessment and Form 1
What are the goals of the treatment?
59The applicant is seeking payment of the following issue:
i. Is the applicant entitled to $2,260.00 for an in-home assessment and form 1, proposed by Vision Diagnostics in a treatment plan submitted April 1, 2019 and denied May 1, 2019?
60Dr. Patel, the applicant’s treating chiropractor, completed a disability certificate which indicated that the applicant suffered from a substantial inability to perform housekeeping and home maintenance activities she had previously engaged in prior to the accident for a period of 12 weeks or greater.
61The applicant’s treating concussion specialist noted that her injuries prevent her from engaging in activities of daily life. At that time her family helped to dress her, drive her around, take her to appointments, cook for her, clean for her and takes care of her dog. This is contradicted in the respondent’s submissions which highlight that in her family doctor’s records on August 26, 2019 the applicant was able to concentrate enough to drive.
62The applicant advances that based on those findings, it was reasonable and necessary to engage in the assessment as well as completion of the form 1 to address and quantify the applicant’s attendant care needs.
How are those goals met to a reasonable degree?
63The respondent submits that the form 1 is a form used to apply for benefits claims and not a comprehensive assessment or evidence of injuries sustained in an accident. The applicant does not provide evidence to back her assertions of her limitations which would prompt the need for an assessment contained in her submissions.
64In the submissions of the respondent, the applicant reported to various assessors that she returned to caregiving for her neighbour, her mother who is legally blind and her grandmother, after about three months and then stopped in April 2020. Since November 1, 2020 the applicant has been self-employed as the owner of a ceramics store.
65Acting as a primary caregiver for two elderly people and running your own business require significant investments in physical, mental and emotional abilities that aren’t in line with someone unable to care for themselves.
Are the overall costs of achieving the goals reasonable?
66The applicant does not specifically set out how the costs of achieving the treatment plan goals are reasonable.
67As a result, I do not find on the information before me that there is sufficient evidence to show that an in-home assessment and form 1 are reasonable and necessary.
Other issues
68The respondent submits, in reliance on rule 38(2) of the Schedule that the insurer is not liable to pay for any expense that pre-dates the submission of a valid OCF-18 unless subject to an exception.
69The examination was conducted on April 1, 2019, prior to the OCF-18 being submitted on May 21, 2019.
70As a result, I agree and find that the treatment plan is not payable pursuant to s.38(2) of the Schedule.
Interest
71Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
72The Tribunal may grant, under s.10, an award up to 50% of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
73Pursuant to paragraph 35 of S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT) the applicant must prove that the respondent’s conduct rose to the level of being: “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”
74Further, the respondent’s conduct needs to align with the pattern of conduct described in Plowright v. Wellington Insurance Co., 1993 OIC File No.: A-003985 (FSCO); to rise to the level of a s.10 award the respondent’s conduct must be an egregious and patently obvious error in adjusting.
Applicant’s Position
75The respondent did not remit payment of $2,200.00 for Markham Health Network’s outstanding invoices that the respondent indicated would be paid during the case conference before this Tribunal.
76The applicant submits that the respondent erred in non-payment of payment of the applicant’s neurological assessment.
77The applicant did not make full submissions on the s.10 test.
Respondent’s Position
78The applicant has only submitted one invoice in the amount of $200.00 to the respondent for payment to date.
79For the OCF-18’s where the applicant was entitled to treatment under the MIG the respondent informed the applicant there was a balance available to her of up to $2,200.00 and that those treatments could begin immediately. This was followed by the request for an OCF-23. This wasn’t provided. The respondent reiterates that it was the applicant’s burden to show that, on a balance of probabilities, she has suffered an impairment from the accident and that the medical benefit she’s seeking is a reasonable as well as necessary expense as a result of the accident. This must be demonstrated by a causal connection using objective medical evidence.
Result
80I do not find that the applicant has met the burden of proof to establish that the respondent has engaged in behaviour which rises to the level of “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” in its adjustment of the applicant’s file.
ORDER
81The applicant is entitled to a neurological assessment.
82The applicant has not met the burden of proof to establish entitlement to a brainscope, SPECT Scan, physiotherapy assessment, physiotherapy treatments, medical devices, transportation fees, an in-home assessment and form 1, or an award under s. 10 of O. Reg. 664.
83Pursuant to s.51 interest applies to the payment of overdue benefits.
Released: April 19, 2024
Julia Fogarty
Adjudicator