Patricia Beecher v. TD General Insurance Company, 2024 CanLII 74764

Licence Appeal Tribunal

Citation: Beecher v. TD General Insurance Company, 2024 ONLAT 22-005076/AABS Licence Appeal Tribunal File Number: 22-005076/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:

Patricia Beecher Applicant

and

TD General Insurance Company Respondent

Decision

Adjudicator: Robert Rock

Appearances: For the Applicant: Hufriz Turel, Counsel For the Respondent: Geoffrey Keating, Counsel

Heard: In Writing

Overview

1Ms. Patricia Beecher (hereinafter referred to as the Applicant), was involved in an automobile accident on November 30, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

Issues

2The issues in dispute are:

(1) Is the applicant entitled to a medical benefit in the amount of $2,840.00 for chiropractic treatment, proposed by Physiomed Airport Inc. in a treatment plan (OCF-18) submitted on April 27, 2020.

(2) Is the applicant entitled to a medical benefit in the amount of $1,280.00 for physiotherapy treatment, provided by Physiotherapy and Beyond and submitted on a claim form (OCF-6) on October 28, 2020.

(3) Is the applicant entitled to interest on any overdue payment of benefits?

Result

3I find that:

i. The applicant has failed to demonstrate on the balance of probabilities that the proposed $2,840.00 for chiropractic treatment by Physiomed is reasonable and necessary.

ii. The applicant has not provided compelling reasons why the payment for expenses in the OCF-6 by Physiotherapy and Beyond for chiropractic services are reasonable or necessary.

iii. As no benefits are owing, no interest is payable. The application is dismissed.

Analysis

OCF-18 Treatment Plan submitted by Physiomed Airport Inc.

4The applicant submits that the accident has considerably reduced her enjoyment of life. The accident has impacted her work life, social life, and daily life. As such, the applicant believes she is entitled to the payment for the treatment proposed by Physiomed Airport in their OCF-18.

5The respondent submits, that the applicant has failed to submit any compelling medical evidence to suggest that the subject treatment plans are reasonable and necessary.

6The clinical notes and records ("CNRs") of Dr. Jessica Baugniet were submitted for review. I note that applicant displays persistence and diligence when it comes to working with her GP to stay on top of her health issues. In review of the extensive CNRs, there is limited connection between the applicant's health concerns and the motor vehicle accident. The accident is mentioned on the visit after the accident on December 22, 2017. However, no other mention of physical pain issues are discussed until October 17, 2018 where the applicant associates her pain issues in her arm to lifting heavy luggage. At that visit the motor vehicle accident is mentioned but not associated with the current pain complaint.

7On June 14, 2019, the CNRs discuss ongoing neck and shoulder pain that is attributed to occupational stress.

8The note from Dr. Smith on September 6, 2019 to Dr. J Baugniet (the applicant's GP) states that the applicant has a few chronic problems, likely occupational, and that the applicant has tried to modify her ergonomic demands at work. However, Dr. Smith does not opine in this document that the applicant's issues are related to the motor vehicle accident.

9The CNR from Dr. Baugniet on December 10, 2020 discusses ongoing pain reported by the applicant, but does not associate the current pain to the motor vehicle accident, and goes as far to add no injury or trauma as the cause.

10The CNR from Dr. Baugniet on February 10, 2021 frames the results of the CT scan performed on the applicant as mild to moderate age-related mechanical wear and tear. The doctor specifically notes that whether the results are because of the extent of her family history, of the applicant's arthritis, the motor vehicle accident, or her occupational ergonomic risks as a dentist will never be known.

11A follow up visit with Dr. Smith on May 14, 2021 led the doctor to note that the applicant's injuries continue to be related to the demands associated with being a dentist. The doctor does not attribute the complaint of pain in this visit to the motor vehicle accident.

12I place little weight on the Chronic Pain Assessment performed by Dr. Karmy completed on October 6, 2021. Dr. Karmy specifically took many of the previous reports from the applicants GP and Dr. Smith out of context in his analysis of their comments. For example, Dr. Karmy attributes all of the applicant's pain issues to the motor vehicle accident and does not mention the other potential contributing factors that are frequently mentioned by the applicant's GP and Dr. Smith, such as her work as a dentist.

13In review of the Insurer's Examination completed on July 24, 2020 by Dr. Ryan Williams, he found that the physical injuries that the applicant suffered as part of the motor vehicle accident meet the criteria of the Minor Injury Guideline, and that the OCF-18 is therefore not reasonable or necessary.

14In review of the evidence provided, the applicant has not presented compelling evidence that the OCF-18 is reasonable or necessary.

OCF-6 Treatment Plan submitted by Physiotherapy and Beyond

15The respondent asserts it is not liable to pay an expense that was incurred before a treatment and assessment plan has been submitted.

16The applicant does not address directly in her submission why she should be entitled to the payment for an expense incurred prior to a treatment plan being submitted.

17Section 38(2) of the Schedule provides:

(1) An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,

i. the insurer gives the insured person a notice under subsection 39 (1) stating that the insurer will pay the expense without a treatment and assessment plan;

ii. the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates;

iii. the expense is reasonable and necessary as a result of the impairment sustained by the insured person for, (i) drugs prescribed by a regulated health professional, or (ii) goods referred to in clauses 15 (1) (d) to (f) and 16 (3) (h) to (j) with a cost of $250 or less per item; or

iv. the insurer agrees that the expense is essential for the treatment or rehabilitation of the insured person for goods or services referred to in clause 15 (1) (h) or 16 (3) (l) with a cost of $250 or less per item or service, as the case may be.

18I agree with the respondent that pursuant to s. 38(2) of the Schedule, the applicant has not demonstrated why the treatment plan was submitted via an OCF-6 instead of via an OCF-18. As the applicant has not provided submissions to demonstrate that she meets one of the exceptions outlined in s. 38(2)(a)-(d), the applicant is not entitled to the payment of the OCF-6.

Interest

19As no payments are due, there is no interest on outstanding payments owed.

Order

20I find that:

i. The applicant has failed to demonstrate the reasonableness or necessity of the OCF-18 treatment plan.

ii. The applicant has failed to show that they should be entitled to the OCF-6 treatment plan.

iii. As neither plan is payable, there is no interest due.

iv. The application is dismissed.