Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Caley Howard, Adjudicator
Licence Appeal Tribunal File Number: 23-002192/AABS
Case Name: Tracey Mitchell v. TD General Insurance Company
Written Submissions by:
For the Applicant: Anna Szczurko, Counsel
For the Respondent: Jennifer Kiss, Counsel; Deedra-Ann Lake, Counsel
OVERVIEW
1On February 14, 2025, the respondent requested reconsideration of the Tribunal’s decision dated January 27, 2025 (“decision”).
2In the decision, I found that the applicant was entitled to three treatment plans for physiotherapy and massage therapy and to some, but not all, of the expenses claimed on OCF-6 forms. I also found that the respondent was not liable to pay an award under s. 10 of Reg. 664.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The respondent is requesting reconsideration under Rule 18.2(b). It is requesting that amendments be made to three paragraphs of the decision. In the alternative, the respondent requests a rehearing limited to the issues of the hourly rate of the massage therapy proposed in the treatment plan, dated December 22, 2023, and the applicant’s entitlement to the massage therapy and physiotherapy expenses claimed by the OCF-6 forms.
5The applicant asks that the request for reconsideration be dismissed.
RESULT
6The respondent’s request for reconsideration is granted, in part.
ANALYSIS
7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
Error of law - hourly rate for massage therapy proposed in treatment plan
8I find that the respondent has not established grounds for reconsideration with respect to the cost of the massage therapy proposed in the treatment plan dated December 22, 2023.
9The respondent submits that I erred in law by approving a treatment plan that proposed massage therapy at an hourly rate of $87.29, which is greater than the maximum hourly rate payable for massage therapy pursuant to the Professional Services Guideline (“PSG”). The respondent seeks an amendment to the decision to partially approve the treatment plan dated December 22, 2023 in the amount of $698.28 plus tax, which it submits conforms to the maximum hourly rate of $58.19 for massage therapy.
10The applicant submits that the respondent did not take issue with the hourly rate set out in the treatment plan in either its denial letter of January 5, 2024 or in its submissions for the written hearing. According to the applicant, it would be prejudicial to consider this argument for the first time on reconsideration.
11At paragraph 24 of the decision, I determined that “the cost of $1,515.17 for the proposed 12 massage therapy procedures” set out in the treatment plan was “reasonable.” I find that the respondent has not established that I made an error of law with this finding because the request for reconsideration is based on the premise that the massage therapy treatment was proposed at a rate of $87.29 per hour. I did not make this finding in the decision.
12Rather, I have reviewed the submissions for the written hearing and I find that neither party made any submissions relating to the hourly rate attributed to the proposed massage therapy services. I find that I was directed to the treatment plan of December 22, 2023, which indicates a cost for massage therapy of $87.29 per procedure. The length of the treatment per procedure is not indicated.
13I agree with the applicant that if the respondent intended to direct the Tribunal to evidence and make submissions in support of its position that the massage therapy in the treatment plan was charged at an excessive rate, it was incumbent on it to do so in its written hearing submissions.
14Reconsideration is a limited, error correcting exercise. It is not an appeal or a new hearing of the issues in dispute. I find that the respondent has not met its onus to establish grounds for reconsideration. Therefore, the respondent’s request for reconsideration in respect of the cost of the massage therapy proposed in the treatment plan of December 22, 2023 is dismissed.
Error of law - physiotherapy and massage therapy expenses claimed by OCF-6
15I find that the respondent has established grounds for reconsideration with respect to the physiotherapy and massage therapy expenses claimed by the OCF-6 forms, pursuant to Rule 18.2(b).
16In the decision, I found that the applicant was entitled to $520.00 for osteopathy expenses claimed by the OCF-6 forms. I found that the applicant was not entitled to expenses for social work counselling claimed by the OCF-6 forms. I further found that the applicant was entitled to reimbursement for the massage therapy and physiotherapy expenses submitted by the OCF-6 forms that fell under one of the treatment plans submitted April 27, 2021, December 22, 2023 or December 7, 2023, to which I found, in the decision, that the applicant was entitled.
17The respondent submits that I made an error of law respecting reimbursement of the physiotherapy or massage therapy expenses submitted by the OCF-6 forms. The respondent submits that this order violates s. 38(2) of the Schedule because the treatment expenses submitted by OCF-6 were incurred prior to the submission of the treatment plans of April 27, 2021, December 22, 2023 and December 7, 2023. The respondent further submits that even if the treatment expenses had been incurred after the treatment plans were submitted, it would still be an error of law to find the applicant was entitled these expenses because the treatment providers and hourly rates charged on the invoices are different than those proposed in the treatment plans. The respondent requests that the decision be varied to specify that the applicant is not entitled to the cost of the massage therapy or physiotherapy submitted by OCF-6 as the applicant failed to submit a treatment plan prior to incurring this treatment.
18The applicant submits that I made no error in the decision. The applicant submits that the physiotherapy expenses submitted by the OCF-6 form dated August 9, 2022 were incurred after submission of a treatment plan for physiotherapy and osteopathy dated November 26, 2020, which was approved by the respondent on December 2, 2020. The applicant submits that the $298.00 for physiotherapy claimed by the OCF-6 form can be covered by the unused portion of this treatment plan.
19The applicant further submits that the $1,180.00 of massage therapy expenses claimed by the OCF-6 form dated July 21, 2023 were incurred after the submission of the treatment plan dated July 21, 2021. The applicant submits that she is entitled to be reimbursed under the treatment plan for the total amount claimed on the OCF-6 form despite the higher hourly rates charged for the services on the invoices than were proposed on the treatment plan.
20Contrary to the applicant’s submissions, I did not find that the applicant was entitled to reimbursement of the physiotherapy expenses under the November 26, 2020 approved treatment plan.
21I have reviewed paragraphs 45 to 48 of the decision and I agree that, despite addressing s. 38(2) of the Schedule at paragraph 45, I did not consider the timing of the submission of the treatment plans when I determined that certain massage therapy and physiotherapy invoices submitted by OCF-6 forms would be payable under those treatment plans. This oversight violates s. 38(2), which provides that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before the insured person submits a treatment plan relating to that benefit. This constitutes an error of law, pursuant to Rule 18(b).
22I have reviewed the submissions for the written hearing and I find that the invoices for massage therapy and physiotherapy submitted by OCF-6 dated August 9, 2022 were all incurred between September 2020 and April 14, 2021. These expenses were incurred prior to the earliest treatment plan at issue in the decision, which was submitted April 27, 2021. Therefore, pursuant to s. 38(2), none of those invoices are payable under the treatment plans.
23I further find that the applicant is correct that the invoices for massage therapy submitted by OCF-6 dated July 21, 2023 were incurred between January and June 2023, which was after the treatment plan of April 17, 2021. However, contrary to the applicant’s submissions, I did not find in the decision that the applicant was entitled to claim the entire amount of $1,180.00 incurred for massage therapy and claimed by the OCF-6 form under this treatment plan. Rather, I found, at paragraph 47, that the applicant was entitled to reimbursement “up to the limits set out in those treatment plans.”
24In the decision, I found that the applicant is entitled to the treatment plan of April 17, 2021. I have reviewed the submissions for the written hearing and I find that the treatment plan of April 17, 2021 proposes 10 sessions of massage therapy at an hourly rate of $58.19. Therefore, I find that 10 sessions of massage therapy submitted by OCF-6 dated July 21, 2023 are payable under the treatment plan of April 17, 2021, up to a maximum hourly rate of $58.19, for a total of $581.90 plus tax. I find that this amount was payable pursuant to the decision.
25However, pursuant to the decision, additional expenses for physiotherapy and massage therapy claimed by the OCF-6 forms would be payable under the treatment plans dated December 22, 2023 and December 7, 2023. I therefore find that I would likely have reached a different result had the error of law not been made and the respondent has established grounds for reconsideration.
26Pursuant to Rule 18.4, I am varying the decision to find that no invoices submitted by OCF-6 dated August 9, 2022 are payable and that 10 invoices for massage therapy submitted by the OCF-6, dated July 21, 2023, are payable under the treatment plan of April 17, 2021, up to a maximum hourly rate of $58.19, for a total of $581.90 plus tax. The remaining invoices for massage therapy submitted by OCF-6 dated July 21, 2023 are not payable under the treatment plans.
CONCLUSION & ORDER
27The respondent’s request for reconsideration is granted in part.
28For the reasons set out above, I find the respondent:
i) has not established grounds for reconsideration with respect to the massage therapy proposed in the treatment plan dated December 22, 2023; and
ii) has established grounds for reconsideration with respect to the order that certain physiotherapy and massage therapy expenses submitted by the OCF-6 forms were payable under the three treatment plans to which I decided the applicant was entitled.
29I am varying the decision with respect to the applicant’s entitlement to the expenses submitted by OCF-6 as follows:
i. Paragraph 42 will be replaced with:
I find that the applicant is not entitled to the amounts claimed by the OCF-6 dated August 9, 2022. However, the applicant is entitled to reimbursement of $581.90 for massage therapy expenses claimed by the OCF-6 form, dated July 21, 2023, pursuant to the treatment plan of April 17, 2021.
ii. Paragraph 46 will be replaced with:
Therefore, I find that the applicant is not entitled to the amounts claimed by OCF-6 dated August 9, 2022.
iii. Paragraphs 47 and 48 will collectively be replaced with:
However, given my findings above respecting the disputed treatment plans, the applicant is entitled to be reimbursed for 10 invoices for massage therapy submitted by the OCF-6 form dated July 21, 2023 under the treatment plan of April 17, 2021, up to a maximum hourly rate of $58.19, for a total of $581.90 plus tax. The remaining invoices for massage therapy submitted by the OCF-6 form dated July 21, 2023 are not payable under the treatment plans.
iv. Paragraphs 4(v) and 56(v) will each be replaced with:
The applicant is not entitled to expenses for social work counselling or physiotherapy claimed by OCF-6;
v. Paragraphs 4(vi) and 56(vi) will each be replaced with:
The applicant is entitled to reimbursement for $581.90 for massage therapy claimed by OCF-6 under the treatment plan dated April 17, 2021.
Caley Howard Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: May 13, 2025