Licence Appeal Tribunal File Number: 22-003082/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:
Dante Hunter
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Neisha Moses, Paralegal
For the Respondent:
Kristofer B. Angle, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Dante Hunter, the applicant, was involved in an automobile accident on October 8, 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, Aviva 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:
i. Is the applicant entitled to $4,553.34 for occupational therapy services proposed by Good Educational Services Inc. in a treatment plan dated July 6, 2020?
ii. Is the applicant entitled to $1,796.00 for physiotherapy services, proposed by Physiotherapy & Beyond Inc. in a treatment plan dated November 25, 2020?
iii. Is the applicant entitled to the services proposed by Innovative Occupational Therapy Services, as follows:
a. $4,230.27 for occupational therapy services, in a treatment plan dated March 3, 2020; and
b. $3,679.70 for occupational therapy services, in a treatment plan dated June 27, 2020?
iv. Is the applicant entitled to $129.20 for physiotherapy sessions, submitted on a claim form (OCF-6) dated March 4, 2020?
v. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. the applicant is entitled to the treatment plan dated November 25, 2020 for $1,796.00 for physiotherapy services, proposed by Physiotherapy & Beyond Inc., plus interest, less any amount that is available under his parents' collateral benefits coverage;
ii. the applicant is not entitled to the remaining treatment plans in dispute or the OCF-6; and
iii. the respondent is not liable to pay an award.
PROCEDURAL ISSUES
4In his reply submissions for this written hearing, the applicant requested that the respondent's hearing submissions be found inadmissible due to late-filing. The respondent filed its written hearing submissions on January 16, 2024, two business days late. By way of Notice of Motion dated January 16, 2024, it requested a brief extension to file its submissions and consented to a corresponding extension for the applicant's reply submissions. The respondent's request for an extension is granted.
5The applicant submits that the respondent's late-filing resulted in prejudice as he was limited in the amount of time he had to prepare his reply submissions, and was forced to spend a portion of his reply addressing the respondent's late-filing. In response to the respondent's subsequent motion to file its submissions late, the applicant cites Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986, to argue that to allow the respondent to file its submissions and evidence late amounts to "trial by ambush". The respondent's motion was set to be heard at this written hearing.
6The respondent submits that it only served its responding submissions two business days late and that counsel for the respondent was delayed due to a serious personal matter involving a close family member. Counsel for the respondent states that he had notified the applicant's legal representative at the earliest opportunity (one business day after the submission due date) about the delay in submission and gave notice that the respondent would agree to any corresponding extension of the applicant's reply submissions. The respondent cites the Supreme Court of Canada decision Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, to argue that procedural fairness requires that the parties have an opportunity to be heard and to respond.
7I grant the respondent's request for a two day extension in filing its hearing submissions.
8While I appreciate that the applicant had less time to prepare his reply materials, I find that excluding the respondent's submissions and evidence in this manner would be unduly prejudicial and contrary to procedural fairness. The applicant has provided comprehensive reply submissions and materials in response to the respondent's hearing materials. However, by striking the entirety of the respondent's hearing submissions, it would effectively be barred from participating in these proceedings.
ANALYSIS
9Sections 14 and 15 of the Schedule set out 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.
10The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.
The OCF-18 dated November 25, 2020 in the amount of $1,796.00 for physiotherapy services is reasonable and necessary
11The applicant submitted an OCF-18 in the amount of $1,796.00 for 16 sessions of physiotherapy treatment. The stated goals of treatment were pain reduction, increase in strength, increased range of motion and return to activities of normal living.
12The applicant submits that as a result of the accident he suffers from chronic back pain, necessitating ongoing physiotherapy treatment. Soon after the accident, the applicant reported back pain to his family physician and nurse practitioner and was referred to physiotherapy. A March 28, 2019 MRI revealed a mild diffuse disc bulge, neural foraminal narrowing at L3-L4 and L4-L5 and borderline central canal stenosis at L4-L5. The applicant submits that he has attended at physiotherapy for years post-accident, and that a number of physicians, his physiotherapists and occupational therapists continue to recommend ongoing physiotherapy to manage his severe pain. In August 2022 he was forced to stop treatment due to lack of coverage, and submits that his condition then seriously deteriorated.
13The respondent submits that further physiotherapy treatment is not reasonable and necessary. It relies on the s. 44 assessment reports of Dr. Alan Kruger (physician) who diagnosed the applicant with soft tissue injuries and concluded that the applicant did not sustain an impairment in the accident. The respondent further submits that the applicant's treating physician Dr. Hewitt and rehabilitation physician Dr. Ruth Smith did not support further physiotherapy. In her September 6, 2019 report, Dr. Smith stated that the applicant's acute injuries had resolved, but he was now "stuck" and that he needed to "change what he is doing". Finally, the respondent submits that pursuant to s. 47(2) of the Schedule the OCF-18 is not payable, as the physiotherapy treatment was available both under OHIP and under the applicant's parents' collateral benefits policy.
14I find that the applicant has met his burden to prove that the OCF-18 is reasonable and necessary. The medical record establishes that the applicant suffered from ongoing back pain post-accident, which he had not reported pre-accident. Although the respondent cites Dr. Smith's September 6, 2019 reporting letter as evidence that the applicant's medical practitioners did not recommend further physiotherapy treatment, from my review of the reporting letter Dr. Smith was recommending a change in physiotherapy treatment rather than its complete cessation. Dr. Smith found that the applicant had "plateaued" with his prior two physiotherapy treatment providers and provided the name of another therapist and facility that she would collaborate with to develop a program to specifically target her observations. I agree with the applicant that the treatment records from Physiotherapy and Beyond, who submitted the OCF-18 in dispute, named Dr. Smith as the referring doctor for physiotherapy treatment.
15The records from Physiotherapy and Beyond also establish that on November 8, 2019 the respondent had approved a prior treatment plan for physiotherapy services. In the present OCF-18 in dispute, it was noted that the applicant had reported some improvement with the previous treatment. I find that an additional course of treatment with the provider recommended by Dr. Smith is reasonable and necessary to see if the applicant could sustain improvement with additional treatment.
16I am not persuaded by the respondent's argument that the OCF-18 is not payable pursuant to s. 47(2) of the Schedule, as the treatment is reasonably available under OHIP. It cites the fact that in March 2023, the applicant's family physician stated that a physiotherapist is available at their medical clinic at no cost. I note that these CNR entries are more than two years after the OCF-18 was submitted. The respondent has not led evidence that at the time of the OCF-18 submission, physiotherapy treatment was reasonably available under OHIP.
17However, the respondent further tenders evidence that the applicant has 90% coverage for physiotherapy services through his mother's collateral benefits policy at Manulife and 80-90% with his father's policy at Bell. Despite providing reply submissions, the applicant did not address the respondent's .s 47 argument, or quantify what amount was available under these collateral benefit policies. Therefore, I am unable to determine whether the physiotherapy services were available to the applicant from a collateral provider and in what amount. As such, I conclude that the applicant is entitled to the OCF-18, less any amount that is available under his parents' collateral benefits coverage.
The applicant has not established entitlement to the OCF-18 dated July 6, 2020 in the amount of $4,553.34 for occupational therapy
18The applicant submitted an OCF-18 for occupational therapy services including tutoring services and education consultations to create educational goals and strategies. The applicant submits that prior to the accident, he was able to function well at school despite his attention deficit hyperactivity disorder (ADHD). However, post-accident his focus and concentration declined, his performance in school worsened and he failed two subjects.
19I find that the applicant has not met his burden to prove that the proposed occupational therapy sessions are reasonable and necessary.
20I agree with the respondent that the applicant had been receiving ongoing assistance for his ADHD and learning disabilities in the years pre-accident. The applicant's psychologist Dr. Lynda Rowden had provided an August 2012 and an April 2019 report with respect to the applicant's educational needs and challenges. Dr. Rowden's post-accident 2019 report did not identify any changes in the applicant's learning disabilities as a result of the accident. The applicant does not direct me to any portion of her report which identifies educational or cognitive impairments stemming from the accident. Given that Dr. Rowden was the applicant's treating educational psychologist both pre and post-accident, I place significant weight on her reports.
21Although the applicant relies on the Functional Assessment Report of his occupational therapist (OT) Ms. Danica McTavish, I do not find that it establishes accident-related cognitive impairments. Ms. McTavish notes that the applicant requires assistance with coordination of daily activities, prompts, encouragement and motivation. However, these same impairments were identified by Dr. Rowden both pre and post-accident.
The applicant has not established entitlement to the OCF-18 for occupational services dated March 3, 2020 for $4,230.27 and the OCF-18 dated June 27, 2020 for $3,679.70
22The applicant submitted two treatment plans for occupational therapy services from Innovative Occupational Therapy Services. Both OCF-18s had the same stated goals as being to maximize functional restoration and address barriers impeding normal daily function. Both plans state that the proposed services include "training motor and living skills".
23I find that the applicant has not met his onus to prove that the proposed services are reasonable and necessary.
24Both the language used in the stated goals and in the description of services is vague and does not provide sufficient information to allow a party to identify the purpose of the treatment plans. The OCF-18s reference underlying OT submission letters. However, even considering the underlying letters, I find that the applicant has led insufficient evidence that occupational therapy services are reasonable and necessary.
25The letters reference the applicant's ongoing need for assistance with cognitive strategies, participation in meaningful activities, academics, and scheduling. However, as previously noted, the applicant has not established accident-related cognitive or learning challenges resulting from the accident. Further, with respect to physical impairments and assistance, I find that the applicant has not led sufficient evidence that he is restricted in his activities of daily living, to warrant occupational therapy services. The applicant's own OT assessor found that he had the necessary physical tolerances to engage in his daily tasks.
26The applicant raises the issue of the sufficiency of the respondent's denial letters for all of the treatment plans. He cites the Tribunal decision T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT) to argue that the respondent did not correctly identify his medical condition in the correspondence. I am not persuaded by the applicant's argument. From my review, all of the denial letters provide clear medical reasons for the denial, referencing the respondent's s. 44 assessors' findings. As such, the reasons provided were clear enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision, and are in compliance with s. 38(8) of the Schedule.
The applicant is not entitled to $129.20 for physiotherapy sessions, submitted on a claim form (OCF-6) dated March 4, 2020
27The respondent submits that the OCF-6 is not payable pursuant to s. 38(2) of the Schedule. It cites the Tribunal decision [E.L.] v. Certas Direct Insurance Company, 2022 CanLII 136078 (ONLAT) to argue that the physiotherapy services were incurred prior to the submission of an OCF-18 and do not fall under any of the exceptions listed in s. 38(2)(a) to (d) of the Schedule. Despite providing reply submissions, the applicant did not address the respondent's s. 38(2) argument.
28I agree with the respondent and the reasoning in its cited decision. The applicant does not dispute that the physiotherapy services were incurred prior to the submission of an OCF-18. Without any submissions or evidence from the applicant that the services fall under one of the exceptions listed in s. 38(2)(a) to (d), I find that pursuant to s. 38(2) of the Schedule, the applicant has not established entitlement to the OCF-6.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the treatment plan dated November 25, 2020 for $1,796.00 physiotherapy services less any amount that is available under the applicant's parents' collateral benefits coverage.
Award
30The applicant sought an award under s. 10 of Regulation 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. I do not find that the applicant has established a basis for an award. The threshold for an award is high. Although I have found that the applicant is entitled to one treatment plan, I note that an award is not necessarily warranted simply because the respondent came to an incorrect determination. Moreover, I do not find the respondent's reliance on its s. 44 assessments to be excessively impudent, stubborn, unyielding or immoderate. As such, the applicant is not entitled to an award.
ORDER
31For the foregoing reasons I find that:
i. the applicant is entitled to the treatment plan dated November 25, 2020 for $1,796.00 for physiotherapy services, proposed by Physiotherapy & Beyond Inc., plus interest, less any amount that is available under the applicant's parents' collateral benefits coverage;
ii. the applicant is not entitled to the remaining treatment plans in dispute or the OCF-6; and
iii. the respondent is not liable to pay an award.
Released: October 3, 2024
__________________________
Ulana Pahuta
Adjudicator