Licence Appeal Tribunal File Number: 23-014328/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:
Stephen Skinner
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Rasha El Sissi
APPEARANCES:
For the Applicant: Samuel Davies, Counsel
For the Respondent: Jeremy Hanigan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Stephen Skinner, the applicant, was involved in an automobile accident on October 29, 2021, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2According to the case conference report and order released on April 29, 2024 (“CCRO”), the issues in dispute are:
i. Is the applicant entitled to $1,696.00 for physiotherapy services, proposed by Perth Physiotherapy, in a treatment plan/OCF-18 (“plan”) submitted on September 11, 2023?
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?
3In addition, the applicant seeks an order that he is entitled to payment of interest for incurred benefits in accordance with the Schedule. As explained below, I will consider this issue.
RESULT
4The applicant is entitled to the cost of the plan for physiotherapy services, plus interest. No award is justified.
PROCEDURAL ISSUES
Interest as an Issue in Dispute
5The respondent submits that the applicant has raised interest as an issue in dispute for the first time in his written submissions, and he did not explain the basis of adding this issue at this late stage. The respondent objects to this issue being added as it was not brought properly before the Tribunal.
6Interest was not checked off in the application to the Tribunal, nor was it listed as an issue in dispute in the CCRO. The applicant did not make submissions about interest, including in his reply.
7I disagree with the respondent’s position. Generally, entitlement to and calculation of interest are derivative of an insured’s claim for statutory accident benefits. Under section 51 of the Schedule, the insured is entitled to interest on overdue benefits calculated in the manner provided in that section. Therefore, interest on any overdue benefits is not a new substantive issue.
8I also note that the Tribunal must address interest in its orders if benefits are found to be overdue. Section 17(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), by which I am bound, states that, if a tribunal makes an order for the payment of money, it shall set out the principal sum and, if interest is payable, the rate of interest and the date from which it is to be calculated.
9The respondent has made submissions on whether the applicant is entitled to the benefits proposed in the plan in dispute, which is the substantive issue.
10I will consider the applicant’s request for interest if any benefits are found to be overdue and provide an order accordingly in keeping with the relevant sections of the Schedule and SPPA.
Service and disclosure of certain documents and related submissions
11The respondent submits that certain of the applicant’s written submissions rely on documents that were not served nor disclosed to it as part of this dispute before the Tribunal. The respondent asks the Tribunal not to permit the applicant to rely on these documents under Rule 9 of the Licence Appeal Tribunal Rules, 2023. The respondent also asks the Tribunal not to place any weight on the applicant’s submissions at paragraphs 9, 10, and 16, because they rely on these documents.
12The applicant addressed this procedural issue in reply. The applicant submits that the documents were all provided earlier and points to evidence in support.
13The documents not served or disclosed to the respondent previously, according to its submissions, are tabs 5, 6, 11 and 12 of the applicant’s submissions. Tabs 5 and 6 contain clinical notes and records (“CNR”) for physiotherapy services provided to the applicant at Perth Physiotherapy from February 3, 2022 to June 6, 2023, which is before the plan in dispute was proposed. Tab 6 also contains copies of forms from the subject accident, i.e., OCF-1, OCF-3, OCF-18, OCF-23 and OCF-24. Tabs 11 and 12 contain statements of account for physiotherapy services from Perth Physiotherapy provided to the applicant from October 30, 2023 to August 16, 2024, which is after the plan was proposed until some months before the heading date.
14In its submissions, the respondent did not indicate the date by which the documents should have been served or disclosed. I note that paragraph 10 of the CCRO states that both parties shall exchange all other documents and things not previously exchanged that they intend to rely on as evidence at the hearing by no later than 60 calendar days from the date of the case conference (i.e., by June 24, 2024).
15Therefore, the first question is whether these documents were provided to the respondent by June 24, 2024. I find that the documents at tabs 5 and 6 were provided before June 24, 2024. I find that the documents at tabs 11 and 12 were provided in October 2024.
16The applicant submits that the documents in tabs 5 and 6 were disclosed to the respondent by email and provides copies of transmittal letters (but not the attachments) from his counsel to the respondent’s adjuster, dated August 16, 2022 and June 19, 2023, respectively. The first letter purports to enclose Perth Physiotherapy CNR for the period of February 3 to June 21, 2022. The second letter purports to enclose Perth Physiotherapy CNR for the period of April 27, 2022 to January 24, 2023, along with other material not in tab 6.
17I compared the date range for the Perth Physiotherapy CNR in the transmittal letters to the contents of tabs 5 and 6. There appears to be a gap in what was enclosed compared to the tabs containing Perth Physiotherapy CNR for services from January 25 to June 6, 2023.
18The applicant submits that receipt of the documents in tabs 5 and 6 in their entirety is confirmed by their inclusion in the accident benefits file the respondent provided to the applicant on January 24, 2024. The applicant attached a copy of the accident benefits file to tab B of his reply. He pointed to specific pages of tab B to show that they are identical to the documents in tabs 5 and 6. Tab B appears to be a copy of the accident benefits file for the applicant related to the subject accident provided by Ms. Maria Hechavarria, Accident Benefits Claim Representative with Definity Insurance, dated January 23, 2024.
19I compared the contents of tab 5 to pages 856 to 882 in tab B of the applicant’s reply and found that they appear to be the same. I compared the contents of tab 6 to pages 902 to 1042 in tab B of the applicant’s reply and found that they appear to be the same. Pages 1012 to 1028 of tab B includes Perth Physiotherapy’s CNR from January 31 to June 6, 2023, covering the gap noted above. In addition, pages 902 to 1042 of tab B includes copies of the applicant’s OCF-1, OCF-3, OCF-18, OCF-23 and OCF-24 found in tab 6 that were not clearly attached to either of the transmittal letters.
20Therefore, I find that the documents at tabs 5 and 6 were provided to the respondent before June 24, 2024, and that there is compliance with paragraph 10 of the CCRO.
21The applicant submits that the documents in tabs 11 and 12 were attached to an email, dated October 7, 2024, from the applicant to the respondent concerning settlement discussions. The applicant provided a copy of this email without the attachments and redacted to preserve privilege. The email states that there were three attachments, two of which were: “Perth Physiotherapy 2024 08 23 re Updated Statement of Account (1).pdf; Perth Physiotherapy 2024 04 25 Statement of Account (1).pdf.”
22It is less certain that the respondent received the documents at tabs 11 and 12 prior to receipt of the applicant’s written submissions, because he did not point to other evidence to that effect. I therefore considered the factors in Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 to determine whether the applicant is permitted to rely on these documents.
23The applicant relies on the documents at tabs 11 and 12 in connection with his submission that he incurred the cost of the plan in dispute and subsequent treatment of the same kind. I find this is relevant to whether the plan was reasonable and necessary when it was proposed.
24Though the respondent opposed admission of the documents at tabs 11 and 12, it made no arguments about prejudice in connection with the procedural issue overall. I note that the respondent made submissions about the applicant’s visits to Perth Physiotherapy after the plan was denied. Therefore, I find that it lay within the respondent’s knowledge that the applicant was funding continuing physiotherapy treatment at Perth Physiotherapy through other means.
25Accordingly, I permit the applicant to rely on the documents at tabs 11 and 12 under Rule 9.3 of the Licence Appeal Tribunal Rules, 2023.
26In sum, the applicant is permitted to rely on the documents at tabs 5, 6, 11 and 12 of his submissions, and there is no impact to the weight I place on paragraphs 9, 10 and 16 of the applicant’s submissions.
ANALYSIS
27I find that the applicant has established that the disputed plan was reasonable and necessary at the time it was proposed, because physiotherapy treatment, on a balance of probabilities, provided pain relief for injuries sustained as a result of the accident.
28To receive payment for a treatment and assessment plan under sections 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.
29The plan in dispute was proposed by Danielle Willard, the applicant’s treating physiotherapist at Perth Physiotherapy since February 2022. It proposes 16 sessions of “weekly individualized physiotherapy sessions in clinic with a focus on post concussion symptoms”, and a $100.00 fee for an initial assessment and documentation. The plan lists impairments affecting the applicant’s tasks of employment and activities of normal life, including “continued difficulty with noise and light sensitivity, fatigue and cognitive function affecting work endurance”. The goals of the plan are “pain reduction”, “resolution of post concussion symptoms” and return to pre-accident work activities and normal activities of life.
30The applicant submits that he suffered whiplash, musculoskeletal (“MSK”) neck injuries and a concussion in the accident, and that he has ongoing neck pain and headaches, as well as post-concussion symptoms, such as fatigue and cognitive difficulties. He submits that these symptoms impair his function in his employment, avocations and household tasks. The applicant submits he receives pain relief from physiotherapy at Perth Physiotherapy.
31The respondent submits that the applicant sustained minor soft tissue injuries that quickly healed, and that the plan is not reasonable or necessary because it will not bring any further improvement in his functional state. The respondent submits that the applicant’s own self-reports to various treatment providers and assessors show that he maintained physically robust work and avocational activities soon after the accident. The respondent submits that some of the applicant’s complaints may be caused, or made worse, by reasons unrelated to the accident, such as long drives. The respondent also noted that the applicant has not been taking any prescribed medications.
32The applicant contends that it is well established that pain relief is a legitimate goal of treatment. The applicant cites Kar v. Scottish & York, 2023 CanLII 1441 (ON LAT) for the proposition that management of pain is a legitimate goal of treatment. The respondent did not cite any cases in support of an alternative view.
33The applicant submits medical evidence to substantiate the injuries he suffered in the accident. These include records from his visit to Perth and Smith Falls Hospital on the day of the accident; subsequent care records at ConnectWell by Mr. Michael Bingley, nurse practitioner, and Dr. Leigh Rose Wahay, GP; and a section 25 assessment by Dr. Alex McKee, physiatrist.
34The respondent points to the section 44 report (“IE”) of physiatry assessor, Dr. Gaurav Gupta, dated April 11, 2024, in which Dr. Gupta opined that the plan was not reasonable and necessary. It also pointed to the IE of neurology assessor, Dr. Jeremy Spevik, who opined that, on the balance of probabilities, the applicant did not suffer a neurological injury as a result of the accident.
35Dr. McKee’s report, dated April 22, 2024, provides detailed diagnoses of the applicant’s injuries of a physical nature (as opposed to neurological, which are outside of his field of expertise). These are spinal disfunction, interspinous ligament and facet joint injury, myofascial pain syndrome and signs consistent with occipital neuralgia. The applicant submits that Dr. Gupta’s IE report supports the opinion of Dr. McKee in terms of his MSK injuries because Dr. Gupta found that the applicant likely sustained post-traumatic headaches and spine sprain and strain in the accident, which are all now chronic.
36I find Dr. McKee’s report compelling because it unites the applicant’s ongoing accident-related symptoms with recommendations for treatment. I prefer this to Dr. Gupta’s report that acknowledges his symptoms and their relation to the accident, but offers no recommendations for treatment.
37The reports of Dr. McKee and Dr. Gupta provide a detailed description of the applicant’s current pain symptoms related to his MSK injuries sustained in the accident. They also provide detail on how the MSK injuries and ongoing symptoms impair the applicant’s functioning in work, his avocational pursuits and chores at home. The findings about his impairments are primarily based on the applicant’s own reports. These self-reports are largely consistent between the physiatrists’ reports, as well as with the CNR of Perth Physiotherapy. Though the applicant described a robust level of physical activity after the accident, he also consistently reported diminished work capacity and endurance, including for hobbies and chores. I therefore do not agree with the respondent’s contention that Dr. McKee’s report lacked context about the applicant’s inability to do his hobbies. Finally, in the evidence, various doctors discuss the potential for differential diagnoses to explain certain ongoing symptoms, such as fatigue, but none go so far as to attribute any of the applicant’s current symptoms or level of impairment to reasons unrelated to the accident.
38The reports of Dr. McKee and Dr. Gupta differ in whether further physiotherapy is recommended. Dr. McKee states that, from a MSK injury perspective, the applicant will need extensive further physiotherapy—together with other forms of intervention—in order to achieve any improvement in this regard. Dr. Gupta concludes that the applicant is unlikely to attain any significant further symptom resolution from the physiotherapy, given the focus on passive modalities to date, the current response to treatment, the recovery plateau and the generally accepted outcomes for these specific strategies of care.
39Both assessors imply that there is a small chance that the applicant will improve with physiotherapy treatment proposed. Though small, I find this supports the conclusion that the plan is reasonable and necessary in the circumstances, because of the severity and persistence of the applicant’s symptoms and their impact on his function.
40The respondent contends that it was never confirmed that the applicant suffered a concussion. I note the applicant was discharged with a query for concussion by the hospital. His primary care medical team at ConnectWell provided treatment for a concussion diagnosis. They also referred him to Perth Physiotherapy for treatment of possible cervogenic headache syndrome. As noted, Dr. Spevik opined that, on the balance of probabilities, the applicant did not suffer a neurological injury as a result of the accident. However, Dr. Spevik believed that the applicant’s neck and back pain were due to MSK issues, specifically spine strain and that he had cervicogenic headaches.
41The applicant did not provide a section 25 neurological assessment. I do not believe this is fatal to the applicant’s case. The evidence indicates that the expert assessors, including in neurology, found that the applicant had valid reasons for persistent headaches since the accident.
42Both Dr. McKee and Dr. Gupta also note that the applicant receives temporary pain relief from the physiotherapy sessions, as does Ms. Willard. For example, Dr. Gupta notes that the applicant receives temporary pain reduction of 30-50% for 3-4 days after treatment. I agree with the applicant that managing his symptoms of MSK-related pain is a legitimate goal of treatment. Taken together, I find that some pain relief from this treatment would be reasonably achieved based on the applicant’s self-reports found across the CNR of Perth Physiotherapy and the expert assessors.
43On a balance of probabilities, I find that the applicant has shown that the plan is reasonable and necessary, and that he is entitled to the cost of the plan, which he has incurred.
Interest
44Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits, in accordance with section 51.
Award
45The applicant sought an award under section 10 of Reg. 664. Under section 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.
46The applicant made no submissions and provided no evidence in support of a section 10 award. The respondent submits that the applicant is not entitled to an award because of this lack of submissions. I agree.
47I find that the applicant has not met his onus to justify an award.
ORDER
48For the above reasons, I find that:
i. The applicant is entitled to the cost of the physiotherapy services plan ($1,696.00), plus interest.
ii. No award is justified.
Released: October 8, 2025
Rasha El Sissi
Adjudicator