Sarria v. Allstate Insurance, 2024 CanLII 74756

Citation: Sarria v. Allstate Insurance, 2024 ONLAT 21-008833/AABS

Licence Appeal Tribunal File Number: 21-008833/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:

Betsaida Sarria

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Nidhi Vinayak, Counsel

For the Respondent: Colleen Mackeigan, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1M. Betsaida Sarria (the applicant), was involved in an automobile accident on June 5, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Allstate Canada, 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 the cost of an accounting report in the amount of $2,500.00 for the purpose of the IRB calculation prepared by Krofchick Valuations submitted on July 6, 2020?

ii. Is the Applicant entitled to a medical benefit in the amount of $4,614.72 for chiropractic services, proposed by Spinetec Health Care Solutions in a treatment plan dated June 23, 2021?

iii. Is the Applicant entitled to a medical benefit in the amount of $3,243.10 for a chronic pain assessment proposed by Meditecs Independent Medical Examinations in a treatment plan dated June 23, 2021?

iv. Is the Applicant entitled to a medical benefit in the amount of $2,486.00 for an attendant care benefits determination proposed by Meditecs Independent Examinations in a treatment plan dated June 29, 2021?

v. Is the Applicant entitled to a medical benefit in the amount of $4,614.72 for a total body assessment proposed by Spinetec Health Care Solutions in a treatment plan dated December 19, 2022?

vi. Is the Respondent liable to play a special award?

vii. Is the Applicant entitled to interest on any overdue payment of benefits?

Preliminary Issue

3The respondent states that there is a conflict of interest in this case between Georgiana Masgras, the legal representative for the applicant until December 4, 2023, and the treating facilities. The two treating facilities that have submitted claims are both owned by the husband of Ms. Masgras and therefore, she would have a direct financial benefit in the results of the case.

4I reviewed all the submitted evidence by the respondent regarding the existing relationship between Ms. Masgras and the treating facilities.

5I am not prepared to dismiss this case based on this preliminary issue, due to a lack of clear legislation that provides me with the power to do so. As such, I will proceed to adjudicate this case on the merits of the submitted evidence.

6It is the duty of the Law Society of Ontario to oversee the professional conduct lawyers and paralegals in Ontario, along with any conflicts that they may have. It is not a responsibility of the License Appeal Tribunal.

RESULT

7I find that:

i. The applicant has failed to demonstrate on the balance of probabilities that she is entitled to the submitted treatment plans.

ii. The claim for $2,500.00 for the IRB calculation done by Krofchick Valuations is not payable. The applicant did not file the appropriate OCF-3 to be entitled to an IRB calculation. Without establishing entitlement to the benefit first, the calculation was not a reasonable undertaking.

iii. As no payments are owed, no special award or interest is due.

ANALYSIS

Chiropractic and Total Body Assessment Treatment Plans

8I do not find that the applicant has demonstrated on a balance of probabilities that the treatment plans at issue were reasonable or necessary.

9To 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 because 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.

10The applicant submits they are entitled to the medical benefit in the amount of $4,614.72 for chiropractic services in an OCF-18 from Spinetec Health Care Solutions dated June 23, 2021.

11The applicant also submits that they are entitled to a medical benefit in the amount of $4,614.72 for a total body assessment proposed by Spinetec Health Care Solutions in a treatment plan dated December 19, 2022.

12The applicant argues that all the OCF-18 plans were reasonable and necessary to reduce pain, increase range of motion, and increase strength, along with allowing the applicant to return to activities of normal living.

13The respondent submits that the applicant bears the onus of proving on a balance of probabilities that she is entitled to the issues in dispute. This includes demonstrating that the treatment goals are reasonable, the goals are being met to a reasonable degree and the overall cost of achieving these goals are reasonable.

14The applicant has not directed me to medical evidence that substantiates that these treatment plans are reasonable and necessary.

15The clinical notes and records (CNRs) of Dr. Naik do not show ongoing complaints by the applicant in relation to the motor vehicle accident. The few references in the CRNs that do relate to the accident diagnosis the injuries as minor in nature.

16The Insurer Examination(“IE”) report completed by Dr. John Heitzner dated January 13, 2022, examined all the documentation to date in relation to the motor vehicle accident and included an in-person examination of the applicant. The results of the IE determined that the injuries sustained were sprain and strains, and that the applicant had reached maximum medical recovery for their soft tissue injuries. As such, Dr. Heitzner concluded that the OCF-18 for the chronic pain assessment, and the OCF-18 for chiropractic services were not reasonable or necessary.

17The OCF-18 for the total body assessment proposed by Spinetec Health Care Solutions in a treatment plan dated December 19, 2022, was undertaken after Dr. Heitzner’s assessment that outlines that the applicant does not require any further musculoskeletal investigations or medical consultations.

18In review of the OCF-18 for chiropractic services from Spinetec Health Care Solutions, it outlines a treatment plan consisting of an assessment and 12 sessions of various modalities. Dr. Heitzner’s IE report indicates that the applicant previously stopped attending chiropractic sessions after only six sessions because they increased her pain after each treatment. There was no evidence presented that suggests further chiropractic treatments would yield different results.

19In review of the OCF-18 for total body assessment from Spinetech Health Care Solutions, I see no compelling medical evidence provided by the applicant to substantiate the reasonableness or necessity of that assessment. This OCF-18 is duplicative of the proposed goods and services section of the earlier OCF-18. It includes the same assessment and services, written by the same doctor. The earlier OCF-18 was abandoned by the applicant and the sessions were not completed. I see no substantive evidence that this OCF-18 was either reasonable or necessary.

20Another reason that I find that the treatment plans are not reasonable or necessary is that they are well about the Guideline rates of $2,000.00 plus HST for these types of assessments. The applicant has not justified why they are so far beyond the Guideline rates.

21Accordingly, the applicant has not satisfied her onus to prove that the two treatment plans in dispute were reasonable or necessary and as such, she is not entitled to them.

Chronic Pain Treatment Plan

22I do not find that the applicant has demonstrated on a balance of probabilities that the treatment plans at issue were reasonable or necessary.

23To 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 because 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.

24The applicant submits that they are entitled to a medical benefit in the amount of $3,243.10 for a chronic pain assessment proposed by Meditecs Independent Medical Examinations in a treatment plan dated June 23, 2021.

25To substantiate the chronic pain assessment is reason and necessary, the applicant relies on the CNRs of Dr. Naik and the diagnosis included in the OCF-18.

26The CNRs of Dr. Naik, to not speak to the applicant experiencing any chronic pain. The doctor makes no diagnosis of chronic pain, nor does he make any referrals for chronic pain assessments for the applicant.

27In review of the OCF-18 for the chronic pain assessment, I see no compelling medical evidence provided by the applicant to outline the reasonableness or necessity of this testing.

28Accordingly, the applicant has not satisfied her onus to prove that the treatment plan for a chronic pain assessment in dispute were reasonable or necessary and as such, she is not entitled to them.

Attendant Care Assessment

29I do not find that the applicant is entitled to the attendant care assessment.

30Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

31The applicant argues that if the Tribunal accepts that the applicant suffers from a chronic pain condition, then the attendant care assessment is reasonable and necessary.

32The respondent claims that the applicant has failed to prove she suffers from chronic pain.

33I am not directed by the applicant to a formal chronic pain assessment, or a formal diagnosis of chronic pain.

34I am not able to substantiate the applicant’s claim of chronic pain. Therefore, I do not find that she suffers from chronic pain with a functional impairment.

35As no chronic pain can be proven, the claim the applicant makes to support the Attendant Care Assessment is undermined and the assessment cannot be reasonable or necessary.

36The applicant is not entitled to the attendant care assessment.

Accounting Costs

37On March 14, 2023, a motion was heard by Vice Chair Hunter by teleconference. In that motion, the respondent requested that the Tribunal:

I. find the applicant is not entitled to proceed with her claim for income replacement benefits; and

II. find that the applicant is not entitled to the cost of an accounting report from Krofchick Valuations.

38Vice Chair Hunter agreed with the respondent that the applicant was not entitled to proceed with her claim for income replacement benefits because the required OCF-3 was not provided to the respondent as required as per s. 36(3) of the Schedule.

39The applicant argues that she is still entitled to the cost of an accounting report, given that the valuation was submitted, and the chartered accountant must be paid for his services.

40I agree with the respondent. The OCF-3 was not submitted to establish entitlement to the income replacement benefit. This is the logical first step in the process and a requirement under s. 36(2) of the Schedule. Without completing this step to ascertain eligibility to IRB, it does not follow that completion of this accounting report was reasonable or necessary.

41In agreeing with the respondent, I look to s. 36(3) of the Schedule, which notes:

i. An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.

42As the applicant did not complete a disability certificate, she is was not entitled to the IRB payment. Therefore, I do not find that the respondent is liable to pay the accounting costs in calculating IRB entitlements.

ORDER

43I find that:

i. The applicant has failed to prove that on a balance of probabilities that she is entitled to any of the payments for the issues in dispute.

ii. As no payments are owed, there is no special award or interest due.

iii. The application is dismissed.