Avendano Sepulveda v. TD General Insurance Company
Licence Appeal Tribunal File Number: 24-000639/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:
Nelly Avendano Sepulveda
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Greg Witt
APPEARANCES:
For the Applicant: Stefan Juzkiw, Counsel
For the Respondent: Benjamin Hutchinson, Counsel
HEARD: In Writing
OVERVIEW
1Kelly Avendano Sepulveda, the applicant, was involved in an automobile accident on April 17, 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:
Is the applicant entitled to $2,078.10 ($3,723.54 less $1,645.44 approved) for physiotherapy services, proposed by Newmarket Health and Wellness Centre Inc. in a treatment plan/OCF-18 (“plan”) submitted January 18, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the outstanding amount of the treatment plan for $2,078.10 for physiotherapy services.
4The applicant is not entitled to interest.
ANALYSIS
5To 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.
6I find that the unapproved portion of the treatment plan for physiotherapy services completed by Rebecca Lima at Newmarket Health and Wellness Centre Inc., is not reasonable and necessary. The treatment plan consists of yoga, massage, acupuncture and different exercises with the goal of returning to activities of normal living.
7The applicant submits that the portion of the treatment plan which was not approved is reasonable and necessary as the applicant suffered neck, back and foot and hand/wrist injuries as a result of the accident and has had ongoing pain.
8The applicant further submits they underwent a treatment plan that covered stimulation, therapy, acupuncture of multiple body sites, which required yoga blocks and a yoga mat to perform stipulated activities. The applicant maintains that the portion of the treatment plan which was not approved was for therapies unencumbered by the regulated maximum hourly rates as stipulated for ‘unregulated provider expenses’ and therefore reasonable and necessary.
9The respondent does not dispute that certain amounts of the treatment plan were reasonable and necessary, and partially approved the plan in the amount of $1,645.44. The respondent submits that the balance of the treatment plan, that was denied, is related to yoga therapy, which in classified as an ‘unregulated provider expense’, and accordingly is payable at the maximum hourly rate of $58.19/hr. It submits that it has already paid and approved the claimed yoga session when it partially approved the plan in accordance with the Professional Services Guidelines issued by the Financial Services Commission of Ontario as Superintendent’s Guideline No. 03/14 (“PSG”) sets out the maximum expenses payable for a range of healthcare services under the Schedule.
10The PSG establishes the maximum expenses payable by automobile insurers under the Schedule related to services provided by health care professions, or health care providers listed within the Guideline. Insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline. It is also noted within the Guideline that services provided by health care professionals/providers, unregulated providers and other occupations not listed within the Guideline are not covered by the Guideline. For services not covered by the Guideline, the amounts payable by an insurer are to be determined by the parties involved. The Guideline further notes that automobile insurers are not liable to pay expenses for services rendered to an insured person which exceed the maximum hourly rates set out in the Guideline’s Appendix.
11The respondent submits that $200.00 of the plan consists of costs related to a re-assessment, which is duplicative and already paid and approved by the plan. According to the PSG, the maximum payable for completion of a Treatment and Assessment Plan is $200.00.
12A key question before me is to determine the nature of the treatment plan. Based on the evidence provided in the submissions, I am persuaded that the treatment sessions are those that fit within the ‘unregulated provider expense’ – i.e. yoga; therefore, I am satisfied the maximum hourly rate of $58.19/hr for unregulated providers is appropriate. Specifically, reviewing the OCF-18 dated January 18, 2022, the treatment was provided at the Hidden Forest Studio which describes itself in the aforementioned OCF-18 as “the only yoga studio in York Region that specializes in tailored yoga exercises for people who want to relieve their chronic pain and reverse the effects of injuries that were a result of accidents.”
13With respect to the balance of the plan, there was no evidence provided by the applicant to show a reassessment cost of $200.00 was reasonable and necessary. Moreover, as per the respondent’s submissions, the respondent already paid and approved the plan, which included $200.00, the maximum payable for completion of a Treatment and Assessment Plan.
14In light of the above, I find on a balance of probabilities that the applicant has not met his onus to demonstrate that he is entitled to the unapproved amount for the treatment plan in dispute.
Interest
15Interest applies on the payment of overdue benefits pursuant to Section 51 of the Schedule. The applicant is not entitled to interest as there is no overdue payment for the treatment plans.
ORDER
16I find that:
i. The applicant is not entitled to the unapproved amount of the treatment plan.
ii. The applicant is not entitled to interest.
Released: November 25, 2025
Greg Witt
Adjudicator