Licence Appeal Tribunal File Number: 23-010063/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:
Omer Dorion
Applicant
and
Elite Insurance Company
Respondent
DECISION
ADJUDICATOR:
Matthew Frontini
APPEARANCES:
For the Applicant:
Andre Bourdon, Counsel
For the Respondent:
James Brown, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Omer Dorion, the applicant, was involved in an automobile accident on July 28, 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, Elite Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL ISSUES
2The parties attended a case conference on February 13, 2024, from which a Case Conference Report and Order dated February 21, 2024 (the “CCRO”) was released. The CCRO identified the issues that were to be determined at this written hearing as whether the applicant is entitled to a non-earner benefit (“NEB”), three treatment plans for physiotherapy services and interest on any overdue payment of benefits.
3In paragraph 35 of the applicant’s written submissions, he requests that the Tribunal make orders pertaining to three additional issues: (a) out-of-pocket expenses for physiotherapy treatments, from May 2, 2023, to present (being September 4, 2024, the date of the applicant’s submissions); (b) an order for costs; and (c) an award pursuant to s. 10 of R.R.O. 1990, Reg. 64.
4The respondent opposes the addition of these new issues as not being within the Tribunal’s jurisdiction because they were not identified in the CCRO. The respondent also filed a motion requesting leave to file an additional two pages of written submissions to address these new issues. The applicant did not oppose the respondent’s motion and the respondent’s hearing submissions substantively address these new issues.
5The applicant argues in his hearing reply submissions that it is not improper to add these issues because “…they are integral to the denials in dispute.” Separately, in response to the response to a motion brought by the respondent to strike these issues from the applicants hearing submissions, the applicant argued that “[t]hese issues are intricate to the issues in dispute and do not form additional issues.” The applicant did not provide further submissions or any authority in support of his submissions regarding the propriety of adding the new issues at this late stage.
6As the application in this proceeding was filed on August 24, 2023, the Licence Appeal Tribunal Rules, 2023 (the “Rules”) apply to this hearing. In passing, I note that Rule 19.2 specifically provides that a request for costs may be made to the Tribunal at any time before a decision or order is released. I reject any suggestion that the applicant’s request for costs pursuant to Rule 19 has been improperly raised.
7The respondent relies on the reconsideration decision in 16-000272 v Aviva Insurance Canada, 2016 CanLII 96093 (ON LAT) (“16-000272”) for the proposition that issues that are not listed in a CCRO are not issues in dispute and therefore the Tribunal does not have jurisdiction to consider them. In 16-000272, the Tribunal reconsidered its initial decision that the applicant’s injuries did not fall within the Minor Injury Guideline (“MIG”). The respondent requested reconsideration because it had removed the applicant from the MIG before the application was filed, the application and corresponding case conference report and order did not list the MIG as an issue in dispute, and the issue of the MIG was never in dispute between the parties.
8The Tribunal’s jurisdiction is derived from s. 280(2) of the Insurance Act, RSO 1990, c I.8, which pertains to the resolution of disputes regarding statutory accident benefits. In 16-000272, there was never a dispute between the parties regarding the MIG, hence the Tribunal did not have jurisdiction. That is not the case in this application. There is a live dispute between the parties regarding the new issues. The dispute is clear from the respondent’s substantive arguments against the applicant’s entitlement to relief in respect of any of these new issues.
9The Tribunal has jurisdiction to consider the new issues and I deny the respondent’s request that they not be considered. What is required is that the respondent is afforded an opportunity to respond to the new issues in a manner that accords with the principles of procedural fairness and limits any prejudice suffered by the respondent from the late notice of these issues.
10The respondent’s submissions opposing the addition of these issues do not identify any specific prejudice it will suffer if they are to be considered. The only specific prejudice the respondent does identify regarding these issues is in its motion for leave to file additional pages in its submissions. The respondent argues that absent these additional pages, it will be prejudiced in responding to the new issues.
11Given that the applicant did not oppose the respondent’s motion, and the alleged prejudice identified by the respondent will be cured by allowing the additional pages, I grant the respondent’s motion for additional pages. I will consider the new issues raised by the applicant and the entirety of the respondent’s responding submissions in this hearing, which include the granted additional pages where the respondent was able to provide comprehensive submissions on the new issues.
ISSUES
12The issues in dispute are:
i. Is the applicant entitled to an NEB of $185.00 per week from July 28, 2021, to date and ongoing?
ii. Is the applicant entitled to the services proposed by Community Physio Communautaire, as follows:
(i) $200.00 ($1,297.50 less $1,097.50 approved) for physiotherapy services, in a treatment plan/OCF-18 (“treatment plan”) dated November 9, 2021; and
(ii) $200.25 ($2,095.75 less $1,895.50 approved) for physiotherapy services, in a treatment plan dated May 5, 2022?
iii. Is the applicant entitled to $1,596.50 for physiotherapy services, proposed by Martell & Mitchell Rehabilitation Inc., in a treatment plan dated April 25, 2023?
iv. Is the applicant entitled to out-of-pocket expenses for physiotherapy treatments, from May 2, 2023 to September 4, 2024?
v. Is the applicant entitled costs pursuant to Rule 19?
vi. Is the respondent liable for an award pursuant to s. 10 of R.R.O. 1990, Reg. 64?
vii. Is the applicant entitled to interest on any overdue payment of benefits in accordance with s. 51 of the Schedule?
RESULT
13I find that:
i. the applicant is not entitled to a non-earner benefit (“NEB”) of $185.00 per week from July 28, 2021, to date and ongoing.
ii. the applicant is entitled to $200.00 ($1,297.50 less $1,097.50 approved) for physiotherapy services, proposed by Community Physio Communautaire in a treatment plan dated November 9, 2021.
iii. the applicant is not entitled to $200.25 ($2,095.75 less $1,895.50 approved) for physiotherapy services, proposed by Community Physio Communautaire in a treatment plan dated May 5, 2022.
iv. the applicant is entitled to $1,596.50 for physiotherapy services, proposed by Martell & Mitchell Rehabilitation Inc., in a treatment plan dated April 25, 2023.
v. the applicant is not entitled to out-of-pocket expenses for physiotherapy treatments, from May 2, 2023 to September 4, 2024.
vi. the applicant is not entitled costs pursuant to Rule 19.
vii. the respondent is not liable for an award pursuant to s. 10 of R.R.O. 1990, Reg. 64.
viii. The applicant is entitled to interest on any overdue payment in accordance with s. 51 of the Schedule.
ANALYSIS
The applicant is not entitled to an NEB
14I find that the applicant has not established on a balance of probabilities that he is entitled to an NEB.
15Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident” (the “NEB Test”). The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
16The applicant’s submissions on his entitlement to an NEB are brief. In respect of his pre-accident functions, the applicant states that he was unemployed and in 2007 suffered a workplace injury that resulted in limitations to his physical activities and required him to stop employment. The applicant does not identify what physical or other activities he engaged in during any pre-accident period.
17In terms of post-accident function, the applicant relies on a report, dated December 29, 2023, and a letter, dated April 25, 2024, of Dr. Breton-Fortin, his family physician. Dr. Breton-Fortin’s statements in these documents are to the effect that the applicant’s neck pain “affect[ ] his quality of life and ability to perform his daily activities.” Dr. Breton-Fortin’s letter and report do not detail what activities are affected or how significantly they are impacted. They also state that it is unclear if some of the complaints reported by the applicant, namely headaches, are the result of the motor vehicle accident.
18The applicant’s submissions and evidence do not establish that the applicant is entitled to an NEB. In Heath at paragraph 50, the Court of Appeal emphasized:
Consideration of a claimant's activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant's life in the time frame immediately preceding the accident. It involves an assessment of the appellant's activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.
In order to determine whether the claimant's ability to continue engaging in "substantially all" of his or her pre- accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered.
It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities.
19In Heath, the plaintiff provided virtually no evidence concerning his pre-accident activities or concerning the extent to which he was prevented from engaging in those activities within the two-year period following the accident. He failed to establish a change to his activities after the accident. The dearth of evidence relating to his pre-accident activities precluded a finding that he qualified for non-earner benefits.
20This case is similar to Heath. The applicant’s submissions do not identify any pre-accident activities, only stating that he was unemployed. His submissions do not describe the extent to which he is prevented from engaging in any specific pre-accident activities as a result of his accident-related impairments.
21I find that the applicant’s submissions do not establish that he has met the NEB test on a balance of probabilities, and he has not established that he is entitled to an NEB.
The applicant is entitled to $200 for the physiotherapy treatment plan dated November 9, 2021 proposed by Community Physio Communautaire
22I find that the applicant has established on a balance of probabilities that he is entitled to $200.00 ($1,297.50 less $1,097.50 approved) for physiotherapy services in the treatment plan dated November 9, 2021.
23Generally, to 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. However, a treatment plan may also be found to be payable if an insurer’s denials do not comply with the Schedule’s requirements for providing proper notice to an insured person.
24The applicant argues that the denial of this treatment plan contravenes the Schedule’s requirements for providing proper notice to an insured person in contravention of s. 38, and it is payable pursuant to s. 38(11). The respondent’s denial dated November 12, 2021, only listed the MIG funding limit as a reason for not paying the disputed portion of the treatment plan. When the respondent subsequently removed the applicant from the MIG five months later on April 29, 2022, it was obligated to revisit its initial denial and either pay for the services or provide the medical and other reasons that form the basis of its denial.
25The respondent does not dispute that its denial contravenes s. 38(8). However, it argues that it is not liable for this amount because the applicant has not demonstrated that the expense has been incurred, a requirement per the Divisional Court’s ruling in Aviva General Insurance Company v Catic, 2022 ONSC 6000 at paragraph 18 (“Catic”).
26In Catic, the Divisional Court held that “s. 38(11)(2) operates so to compel an insurer who fails to provide the statutory notice called for in s. 38(8) to pay for all of the items listed in the subject treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding.” With respect to the period during which the denial notice remains outstanding, the Divisional Court has ruled that an insurer cannot take remedial action to issue a compliant denial after an adverse determination by the Tribunal to escape the consequences of s. 38(11). See Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 at para 36.
27In this case the respondent’s denial contravenes s. 38(8). The respondent has not provided any evidence that it subsequently issued a compliant denial notice and as such, the respondent’s failure to comply with s. 38(8) cannot be cured now. The treatment plan is payable pursuant to s. 38(11)(2) of the Schedule, starting on the 11th business after the treatment plan was submitted. Payment is due when incurred as defined in the Schedule and interest is payable once the treatment plan has been incurred and payment is overdue in accordance with s. 51 of the Schedule.
The applicant is not entitled to $200 for the physiotherapy treatment plan dated May 5, 2022 proposed by Community Physio Communautaire
28I find that the applicant has not established on a balance of probabilities that he is entitled to $200.00 ($2,095.75 less $1,895.50 approved) for physiotherapy services, in a treatment plan dated May 5, 2022?
29To 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.
30The disputed portion of the treatment plan pertains to two of three proposed discharge reports. As the respondent only required one report, it denied the reasonableness and necessity of two additional reports.
31The applicant’s argument for the reasonableness and necessity of this treatment plan focus on the benefits of the physiotherapy treatment to his injuries. The applicant’s submissions do not speak to the reasonableness and necessity of three discharge reports instead of one, the basis of the respondent’s denial for that particular service in the disputed treatment plan. As such, the applicant has not satisfied his burden to establish on a balance of probabilities that the denied goods and services are reasonable and necessary.
The applicant is entitled to the physiotherapy treatment plan proposed by Martell & Mitchell Rehabilitation Inc.
32I find that the applicant has established on a balance of probabilities that the disputed treatment plan is reasonable and necessary.
33The applicant argues that the disputed treatment plan is reasonable and necessary because the evidence demonstrates that he continues to experience pain and reduced neck mobility, both of which are relieved by physiotherapy treatment. In this regard, the applicant references the clinical notes and records of his family doctor Dr. Breton-Fortin, as well as the records of two physiotherapy clinics he has attended, Community Physio Communautaire and Martel and Mitchell Rehabilitation Inc. The applicant also notes his family doctor’s recommendation for continued physiotherapy treatment.
34The respondent argues that the applicant has not established that the further physiotherapy proposed in in the disputed treatment is reasonable and necessary. The respondent notes that this treatment provider was given very little information regarding the applicant’s overall course of treatment, despite such information being available. The respondent also focuses on the discharge report of the applicant’s first physiotherapist, Dr. Rondeau, physiotherapist at Community Physio Communautaire. The respondent argues that Dr. Rondeau’s assessment that physiotherapy provides temporary pain relief, and that the applicant should explore other forms of treatment, establishes that this disputed treatment plan is not reasonable and necessary.
35I find that the applicant has established on a balance of probabilities that the disputed treatment plan is reasonable and necessary. The evidentiary record is clear that the applicant continues to experience pain and reduced mobility in his neck. The record is also clear that these impairments are improved by physiotherapy treatment and that his family doctor has recommended continued physiotherapy treatment. I am also alive to the fact that the applicant has incurred out-of-pocket costs to continue to receive physiotherapy treatment. The issue of the applicant’s entitlement to those out-of-pocket costs is addressed below, but the fact they were incurred strongly supports the benefit of these treatments. I also do not agree with the respondent’s argument that because the applicant’s improvements after physiotherapy treatment are temporary and the impairments worsen without treatment, the disputed treatment plan is not reasonable and necessary.
The applicant is not entitled to out-of-pocket costs for physiotherapy treatment
36The applicant has not established that he is entitled to his out-of-pocket costs for physiotherapy treatment.
37The applicant argues that he is entitled to these out-of-pocket expenses because these physiotherapy treatments are reasonable and necessary to treat his accident-related injuries. The applicant also argues that because the Tribunal is the only forum that can grant this relief, that relief must be ordered.
38The respondent submits that section 38(2) of the Schedule applies. This section states that an insurer is not liable to pay a medical or rehabilitation benefit that was incurred before the insured person submits a treatment and assessment plan unless the claim meets an exception. The applicant never submitted treatment plans for any of these disputed services. As such, the respondent argues that the applicant cannot be entitled to the invoiced services.
39Section 38(2) is a complete bar to the applicant’s entitlement to these out-of-pocket expenses. His submissions’ focus on the reasonableness and necessity of the treatment but do not address the procedural requirements of the Schedule for an insured to be entitled to medical benefits or identify any relevant exception that would make these expenses payable. The applicant’s other argument is that the Tribunal is the only forum where these costs may be recovered. While that may be true, the applicant’s entitlement to any accident benefits is constrained by the requirements of the Schedule and the applicant has not identified any authority that would establish these out-of-pocket costs are payable.
40Based on the foregoing, the applicant has not established on a balance of probabilities that he is entitled to his out-of-pocket costs for physiotherapy treatment.
The applicant is not entitled to costs
41The applicant’s request for costs pursuant to Rule 19 is denied. His submissions do not identify any specific conduct of the respondent in this proceeding that was unreasonable, frivolous, vexatious, or in bad faith. Absent such conduct, costs are not warranted.
Interest
42I find that interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
43I find that the applicant has not established that he is entitled to an award.
44The applicant sought an award under s. 10 of Reg. 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.
45The applicant’s written submissions do not point to any specific facts or make any specific arguments as to why an award is warranted in this application. As a result, I find that the applicant has not established that he is entitled to an award.
ORDER
46It is ordered that:
i. the applicant is not entitled to a non-earner benefit of $185.00 per week from July 28, 2021, to date and ongoing.
ii. the applicant is entitled to $200.00 ($1,297.50 less $1,097.50 approved) for physiotherapy services, proposed by Community Physio Communautaire in a treatment plan dated November 9, 2021.
iii. the applicant is not entitled to $200.25 ($2,095.75 less $1,895.50 approved) for physiotherapy services, proposed by Community Physio Communautaire in a treatment plan dated May 5, 2022.
iv. the applicant is entitled to $1,596.50 for physiotherapy services, proposed by Martell & Mitchell Rehabilitation Inc., in a treatment plan dated April 25, 2023.
v. the applicant is not entitled to out-of-pocket expenses for physiotherapy treatments, from May 2, 2023, to September 4, 2024.
vi. the applicant is not entitled costs pursuant to Rule 19.
vii. the respondent is not liable for an award pursuant to s. 10 of R.R.O. 1990, Reg. 64.
viii. The applicant is entitled to interest on any overdue payment in accordance with s. 51 of the Schedule.
Released: May 12, 2025
Matthew Frontini
Adjudicator