Licence Appeal Tribunal File Number: 23-002903/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:
Joan Allen-Harris
Applicant
and
Zenith Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nathan Prince
APPEARANCES:
For the Applicant:
Zahid Bashir, Counsel
For the Respondent:
Nicholas M. Wine, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Joan Allen-Harris, the applicant, was involved in an automobile accident on March 17, 2018, 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, Zenith 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 $1,800.48 for physiotherapy services, proposed by 2121587 Ont. Inc. in a treatment plan/OCF-18 (“plan”) dated November 24, 2022?
ii. Is the applicant entitled to $1,800.48 for physiotherapy services, proposed by 2121587 Ont. Inc. in a treatment plan dated December 1, 2022?
3The applicant made submissions with respect to income replacement benefits (“IRBs”); however, this issue is not properly before me. IRBs were not listed as an issue in dispute in the application or in the Case Conference Report and Order (“CCRO”). Therefore, I did not consider the issue of IRBs.
4In her submissions, the applicant also sought interest on any overdue payment of benefits; however, this matter was not properly before me either. The applicant indicated in her application that she was not seeking interest and the CCRO does not indicate that interest is an issue in dispute. Regardless, as will be discussed below, I have found that the applicant is not entitled to the treatment plans in dispute and therefore interest would not be payable as there are no overdue payments of benefits.
RESULT
5The applicant is not entitled to the treatment plans in dispute.
6The application is dismissed.
ANALYSIS
The applicant is not entitled to the treatment plans for physiotherapy services
7I find that the applicant has not demonstrated on a balance of probabilities that the treatment plans for physiotherapy are reasonable and necessary.
8To 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.
9The applicant submits that she suffers from ongoing accident-related impairments which require physiotherapy, and she relies upon the clinical notes and records (“CNRs”) of her family doctor, Dr. Karen Marshall, and the CNRs of New Motion Physio and Sports Rehab.
10Both OCF-18s were prepared by Ms. Avni Parmar, physiotherapist, and they list the goals of treatment as pain reduction, increase in strength, and increased range of motion with the functional goal of returning to modified work activities. They list the applicant’s injuries sprain and strain of the lower back, low back pain, and sprain and strain of the shoulder joint.
11I find that there is a dearth of contemporaneous medical evidence to support the treatment plans in dispute. In her submissions, the applicant stated that she attended at Dr. Marshall’s office in November 2022 and December 2022 with complaints of continued persistent neck pain, lower back pain, shoulder pain, and chronic migraines; however, the applicant did not submit Dr. Marshall’s CNRs from this time period to corroborate her submissions. In fact, the last CNR from Dr. Marshall is dated July 27, 2020, which predates the proposed treatment plans by over two years. Similarly, the CNRs of New Motion Physio and Sports Rehab cease November 27, 2019 and the final entry in the applicant’s OHIP summary is dated September 10, 2020.
12The Tribunal has established that in the absence of contemporaneous medical records, a treatment plan on its own is not enough to establish entitlement to a benefit (See: 17-002689/AABS v Aviva Insurance Canada, 2018 CanLII 2311 (ON LAT)). I agree with this principle and find that there is insufficient contemporaneous medical evidence before me to show that the proposed treatments plans are reasonable and necessary.
13Based on the forgoing, I find that the applicant has not demonstrated on a balance of probabilities that she is entitled to the treatment plans in dispute.
ORDER
14For the above reasons, I find that:
i. The applicant is not entitled to the treatment plans in dispute.
ii. The application is dismissed.
Released: January 17, 2025
Nathan Prince
Adjudicator