Hutton v. Portage La Prairie Mutual Insurance Company, 2025 CanLII 3752

Citation: Hutton vs. Portage La Prairie Mutual Insurance Company, 2025 ONLAT 23-002508/AABS

Licence Appeal Tribunal File Number: 23-002508/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:

Sheryl Hutton Applicant

and

Portage La Prairie Mutual Insurance Company Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Agal Lankeswaran, Paralegal

For the Respondent: Kimberly Jossul, Counsel

HEARD: In Writing

OVERVIEW

1Sheryl Hutton, the applicant, was involved in an automobile accident on February 19, 2022, 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, Portage La Prairie Mutual Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

Pre-Hearing Letters

2After the case conference on September 29, 2023, the applicant sent a letter to both the respondent and the Tribunal dated October 3, 2023. The letter outlined the applicant’s position with regard to the issues in dispute, alleging bad faith on the part of the respondent. The respondent replied on October 24, 2023, indicating that it did not know the applicant’s intent with regard to the letter, but that because it appeared to be a form of written submissions, it in turn provided a summary of its own position.

3The applicant describes the letter as a “letter of bad faith”. It appears to be a type of written submission although no supporting evidence was filed. It addresses the issues in dispute and seeks a remedy that the applicant should be found outside the Minor Injury Guideline (“MIG”).

4Subsequently, both parties made 8-page formal submissions for the hearing in accordance with the provisions of the case conference report and order (“CCRO”).

5I will consider both the letters and the written submissions because the CCRO allotted 10 pages for written submissions to the parties, and each party submitted a 2-page letter and an 8-page written submission.

Revised Issue – MIG

6The CCRO dated October 11, 2023, identified four issues in dispute: the applicability of the MIG, two treatment plans/OCF-18s (“plans”), and interest.

7The respondent advised in submissions that the applicant had been removed from the MIG on account of a psychological impairment. It included in its document brief a copy of the letter it sent to the applicant on December 19, 2023, in which it agreed to partially fund a plan for a psychological assessment after its s. 44 assessor determined the assessment was reasonable and necessary, although at a reduced cost. The applicant had the opportunity to address this change in status in reply submissions but did not do so.

8Accordingly, I find the applicant is not subject to the MIG, and it is no longer an issue in dispute.

Misidentified plan

9The applicant’s submissions characterized one of the plans as chiropractic services. The respondent submitted the relevant plan in its document brief which confirms the proposed treatment is a chronic pain assessment.

10The applicant had the opportunity to address the inconsistency in reply submissions but did not do so.

11As a result, the issue in dispute has been revised to reflect the evidence provided by the respondent (i.e., the OCF-18).

Non-compliance with CCRO – applicant

12The applicant submitted a document brief with an index. However, the index had no page numbers to assist in locating individual entries or documents. The applicant also used footnotes in her submissions. However, the footnotes in the submissions do not correspond to the index to the document brief.

13As a result, the applicant’s submissions do not comply with the Tribunal’s order in the CCRO which indicates at paragraph 7 that the parties must file their evidence with their submissions, indexed, tabbed and page and paragraph numbered. At paragraph 11 the parties are advised that the hearing adjudicator may choose not to review any evidence not so referenced.

14While I reviewed and considered the applicant’s evidence in their document brief, due to there being no alignment between the index to the document brief and the footnotes in the submissions, I was not always able to locate the evidence cited by the applicant in their submissions. I have made a note below for each such instance.

ISSUES

15The issues to be decided in the hearing are:

1. Is the applicant entitled to $2,164.00 for a chronic pain assessment proposed by Midland Wellness Centre (“Midland”) in a treatment plan/OCF-18 (“plan”) dated January 6, 2023?
2. Is the applicant entitled to $4,009.34 for physiotherapy services, proposed by Midland in a plan dated January 6, 2023?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

16The applicant is not entitled to the treatment plans or interest.

ANALYSIS

The Treatment Plans

17To 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.

18Here, the applicant submits that the plans are reasonable and necessary on account of her accident-related injuries, as evidenced by the clinical notes and records (“CNRs”) of her GP, and the findings of psychologist Dr. McCutcheon. However, she does not address the goals of the plans, how the goals would be met, or why the cost is reasonable in relation to the benefits.

19The respondent submits that the applicant was removed from the MIG in order to receive a psychological assessment. But here, it highlights that the two plans in dispute are for physical rehabilitation, services that were already funded up to the MIG limits of $3,500.00 at Kingston West Physiotherapy. It maintains that the disputed plans are not reasonable and necessary, because both the accident itself and the applicant’s injuries are minor.

Is the applicant entitled to the plans for a chronic pain assessment and physiotherapy services?

20I find that the applicant is not entitled to the plans.

21I will consider both plans together because the applicant made submissions applicable to both plans rather than separate arguments for each.

22The applicant submits that the plans are reasonable and necessary because her injuries from the accident are impacting both her physical and psychological health. She identifies the physical injuries as whiplash associated disorder, back, neck, and shoulder pain, with sleep disturbance, flashbacks, and headaches. The applicant refers to the CNRs of Drs. Sadry, Gibbons, and Go in support.

23However, I was unable to locate any CNRs from a Dr. Sadry in the applicant’s document brief. With regard to the CNRs of Dr. Go, they confirm referrals to a neurologist, a pain clinic, and for diagnostic tests. The CNR from Dr. Gibbons at Mackenzie Hill Hospital dated March 9, 2022, describes symptoms of low back pain and headaches, and a discussion of concussion care.

24The applicant specifically claims a chronic pain diagnosis and multiple referrals for physiotherapy and chiropractic treatment in the CNRs of Dr. Go. However, I was unable to locate the chronic pain syndrome diagnosis at all, and I cannot be certain how many referrals for rehabilitation were made without any pointers to specific entries or pages in the evidence. To note, the CNRs provided from Dr. Go are handwritten and largely unreadable.

25The respondent submits that from a physical perspective, the applicant sustained only soft tissue injuries from the accident and has already reached maximal medical recovery. It advised that massage therapy, physical therapy, and chiropractic treatment were already funded under the MIG. It further submits that the applicant was engaged in physical rehabilitation for her pre-accident medical conditions at the time of the accident, and that no further facility-based treatment is necessary to address her minor injuries from the accident.

26The respondent points to both the pre-accident and post-accident periods to demonstrate that the applicant has a history of pain, with migraine headaches, and also suffered a workplace injury after lifting a heavy object just a few weeks after the motor vehicle accident. It refers me to the CNRs of Dr. Go where it is recorded that the applicant was being treated prior to the accident, in 2019 and 2021, for a lower back strain injury, an elbow strain injury and shoulder issues. Regarding the workplace injury, the applicant reported it to s. 44 assessor Dr. Dessouki, indicating she had made a WSIB claim.

27The respondent submits that while the accident may have caused some initial exacerbation of the applicant’s pre-accident medical conditions, any impact was short-term and minimal. It underlines that while she underwent x-rays, a CT scan, and an ultrasound at various points after the accident, none of these tests found any significant injuries.

28On receipt of the two plans from Midland dated January 6, 2023, the respondent commissioned two Insurer’s Examinations (“IEs”) to assess whether the plans were reasonable and necessary.

29Physiatrist Dr. Dessouki examined the applicant on April 4, 2023. No significant impairments were found. Dr. Dessouki assessed the applicant’s accident-related physical symptoms as consistent with a minor sprain/strain injury, and no pre-existing medical condition was identified that would require treatment outside the MIG in order to reach maximal recovery. He concluded that neither of the plans was reasonable and necessary.

30Neurologist Dr. Kleiner examined the applicant in relation to her complaints of headache on May 19, 2023. Dr. Kleiner’s summary impression is cervical and lumbar strain/sprain in the context of pre-existing low back pain. She confirmed there was no neurological injury and that the applicant’s chronic headaches may be related to other causes such as the overuse of medication. Dr. Kleiner concluded that the applicant’s neurological exam was entirely normal and there were no goods or services required to assist in her recovery.

31In May 2023, both IE assessors performed a follow-up paper review to consider the applicant’s updated medical documentation. However, neither changed their opinions. As a result, following the examinations and a thorough documentary review, both s. 44 assessors agree that neither of the two plans, either a chronic pain assessment or physiotherapy services, are reasonable and necessary.

32For the following reasons, the applicant has not met her burden to establish entitlement to the plans in dispute:

i. I am not convinced that the applicant’s physical injuries from the accident were more than minor, having consideration for the expert opinions from two separate s. 44 assessors, as well as the various medical CNRs submitted by the applicant.

ii. The applicant had pre-existing conditions, as well as a post-accident workplace injury, and as a result, there is no compelling evidence to suggest that the applicant’s ongoing pain symptoms more than two years after the accident originate in the subject accident.

iii. The applicant did not provide any submissions about each plan regarding the goals, why such goals are reasonable and how they would be met, nor whether the cost of achieving the goals is reasonable.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

34As no benefits are owed, no interest applies.

ORDER

35I order that:

i. The applicant is not entitled to the treatment plans.

ii. The applicant is not entitled to interest.