Citation: Hancock v. Intact Insurance Company, 2025 ONLAT 23-005780/AABS

Licence Appeal Tribunal File Number: 23-005780/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:

Carol Hancock

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

Lane Foster, Counsel

Kenneth Ciupka, Counsel

For the Respondent:

Lori J. Sprott, Counsel

HEARD:

by way of Written Submissions for substantive issues and by way of Videoconference on May 27, 2024 for the preliminary issue.

OVERVIEW

1Carol Hancock, the applicant, was involved in an automobile accident on December 17, 2020, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The applicant withdrew a number of issues in dispute at the videoconference hearing and advised it would not be calling any witnesses.

3The respondent brought a motion seeking to bar issues #30, 33 and #36 from proceeding pursuant to s. 55 of the Schedule. The motion was granted at the start of the videoconference hearing.

4Given the reduction in the issues in dispute and the absence of any witnesses the Tribunal ordered the hearing to be converted form a videoconference to written submissions.

PROCEDURAL ISSUES

5The applicant brought a motion subsequent to the close of the hearing for an order confirming what issues in dispute were withdrawn by the applicant and an order permitting the applicant to withdraw issues number: 1, 2, 3, 4, 9, 10, 11, 12, 13, 14, 18, 20, 21, 22, 23, 24, 26, 28, 29, 32, 34, 35 as set out in the Case Conference Report and Order dated December 23, 2023; and that the applicant was barred from proceeding to a hearing for issues 30, 33 and 36 by order of May 27, 2024 as prescribed by s.55 of the Schedule.

6The Tribunal orders that the motion is improper as it seeks an order that is not a remedy but a declaration as the issues to be decided are already known to the parties.

7The Tribunal notes that the applicant has an unfettered right to withdraw any issue(s) in dispute at any time. The applicant has clearly communicated that it wishes only to proceed on the issues in dispute described herein below. Any legal arguments as to res judicata or abuse of process with respect to withdrawn issues in dispute are not within the jurisdiction of the Tribunal in this matter, but are procedural issues to be determined by the Tribunal in any subsequent proceedings that may be brought. The Tribunal cannot fetter itself by issuing an order that would prejudice a subsequent or unknown proceeding. Further, there is no "apt analogy" reasoning applicable as the Licence Appeal Tribunal Rules, 2023 ("Rules") are in effect; "apt analogy' may only be applied in circumstances of a complete absence of Tribunal rules.

PRELIMINARY ISSUE

8The preliminary issue in dispute is:

i. Is the applicant barred from proceeding to a hearing for issues 30, 33 and 36 as set out below because the applicant failed to attend an insurer's examination under s.44 and s.55 of the Schedule.

SUBSTANTIVE ISSUES

9The substantive issues in dispute as identified in the case conference summary and order of December 17, 2023 are as follows:

i. Issue #5. Is the applicant entitled to $798.53 ($2,095.28 less $1,296.75 approved) for physiotherapy services, proposed by Bergin Motion (BM) in an OCF-18/treatment plan ("treatment plan") submitted February 28, 2023?

ii. Issue # 6. Is the applicant entitled to $898.29 ($2,594.04 less $1,695.75 approved) for physiotherapy services, proposed by BM in a treatment plan submitted April 18, 2023?

iii. Issue #7. Is the applicant entitled to $6,125.70 for occupational therapy services, proposed by Rehab First Inc.(" RFI") in a treatment plan submitted March 9, 2022?

iv. Issue #8. Is the applicant entitled to $798.53 ($2,095.28 less $1,296.75) for physiotherapy services, proposed by BM in a treatment plan submitted January 10, 2023?

v. Issue #15. Is the applicant entitled to $1,923.49 ($5,479.68 less $3,556.19 approved) for occupational therapy services, proposed by RFI in a treatment plan submitted June 24, 2022?

vi. Issue #16. Is the applicant entitled to $1,390.43 ($3,974.99 less $2,584.56 approved) for physiotherapy services, proposed by BM in a treatment plan submitted September 29, 2022?

vii. Issue #17. Is the applicant entitled to $698.78 ($2,321.28 less $1,622.50 approved) for physiotherapy services, proposed by BM in a treatment plan submitted November 3, 2022?

viii. Issue #19. Is the applicant entitled to $798.53 ($2,095.28 less $1,296.75 approved) for physiotherapy services, proposed by BM in a treatment plan submitted July 17, 2023?

ix. Issue #25. Is the applicant entitled $1,097.81 ($3,591.56 less $2,493.75 approved) for physiotherapy services, proposed by BM in a treatment plan submitted September 20, 2023?

x. Issue #27. Is the applicant entitled to $2,170.50 for occupational therapy services, proposed by RFI in a treatment plan submitted October 10, 2023?

xi. Issue #31. Is the applicant entitled to $1,383.05 ($2,639.90 less $1,256.85 approved) for occupational therapy services, proposed by RFI in a treatment plan submitted November 20, 2023?

xii. Issue #37. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

xiii. Issue #38. Is the applicant entitled to interest on any overdue payment of benefits?

10The applicant withdrew issue #35 at the start of the hearing.

RESULT

11On the preliminary issues, I find the applicant is barred from proceeding with Issues #30, #33 and #36 as the applicant failed to attend a properly scheduled insurer's examination.

12On the substantive issues, I grant the application in part as I find the applicant is entitled to the disputed treatment plans identified as issues #7 and 27. The applicant is also entitled to interest for any overdue payment of those benefits (issue #38).

13However, I find the applicant is not entitled to disputed treatment plans in issues #5, 6, 8, 15, 16, 17, 19, 25, or 31. I also find the applicant is not entitled to an award under Reg. 664 (issue #37).

ANALYSIS

Preliminary Issue relating to Issues #30, 33 and 36

Legal Test for the Statute Bar for Noncompliance with s. 44

14Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to evoke its rights to an IE.

15The requirements for a Notice of Examination are set out in section 44(5) of the Schedule:

i. If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

a. the medical and any other reasons for the examination;

b. whether the attendance of the insured person is required at the examination;

c. the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

d. if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

16Pursuant to s. 55(1)2 of the Schedule, an applicant shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. However, even if there is noncompliance, the Tribunal may permit the application to proceed with terms, pursuant to ss. 55(2) and (3).

Application and Evidence

17I find the applicant is barred from proceeding with Issues #30, #33 and #36 because of their failure to attend a properly scheduled insurer's examination pursuant to s.44 and s.55 of the Schedule.

18It was not contested by either party that the applicant failed to attend an insurer examination relating to issues #30, #33 and #36. However, the applicant submitted that she had attended sufficient examinations and the insurer may not require her to attend endless or repetitive examination, and therefore these examinations were not reasonably necessary. Nor did the applicant request I exercise discretion pursuant to s.55(2), and absence any basis to do so I declined the discretion. The respondent submitted that while the applicant had attended a number of previous examinations, the required orthopedic examination with Dr. Yee of December 13, 2023 was not repetitive or unnecessary as the applicant had not been previously examined in regard to issues #30, #33 and #36.

19I find that the examination required by the insurer was a novel examination specifically in relation to issues #33, #33 and #36. I find the applicant was not subjected to a repetitive examination and was required to attend the insurer examination pursuant to s.44 of the Schedule. I find the applicant's failure to attend the insurer examination in relation to issues #30, #33 and #36 is a bar from allowing the applicant to proceed with those issues in dispute.

Substantive Issues

Legal Test for Entitlement to a Treatment Plan

20To 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.

Issues #5, 6, 8, 16, 17, 19, and 25. The applicant is not entitled to the unapproved amounts for these physiotherapy treatment plans

21I find the applicant did not meet her onus to establish that the unapproved amount of each of these treatment plans is reasonable and necessary.

22The applicant submitted that each treatment plan was reasonable and necessary by the support of ongoing physiotherapy by Dr. Khaled, general practitioner, Dr. Williams, chronic pain specialist, Dr. McKenzie, orthopaedic surgeon, Dr. Tanaka, general practitioner and physiotherapist Katja Bergin. The respondent partially approved each treatment plan but submitted that the cost was too great and outside the Professional Service Guidelines ("PSG"). The applicant led no evidence in respect to the unapproved cost of each treatment plan.

23The onus is on the applicant to prove the overall cost of the treatment plan is reasonable and necessary; however, the applicant did not offer any evidence or submissions in this regard. Accordingly, I find the applicant did not meet her burden of proof and is not entitled to the unapproved amounts of each treatment plan.

Issues #7 and 27. The applicant is entitled to these treatment plans for occupational therapy services

24I find the applicant met her onus to establish that each of these treatment plans is reasonable and necessary.

25Each treatment plan was recommended by Angela Hubbard with the goals of pain management and sleep hygiene through occupational therapy services.

26The applicant submitted that each treatment plan was reasonable and necessary, relying on ongoing occupational therapy by Dr. Valentin, neuropsychologist, Dr. Williams, chronic pain specialist, Dr. Chiodo, psychologist and occupational therapist Angela Hubbard. Dr. Valentin recommended occupational therapy in his report of July 26, 2022. Dr. Chiodo stated in her report of December 17, 2020 that she believed the applicant would benefit from occupational therapy. In her report of October 23, 2023, Ms. Hubbard recommended occupational therapy to promote pain management and sleep hygiene.

27The respondent submitted the examination of the applicant by of Andy Beecroft, occupational therapist, as reviewed by Dr. Khalid, indicated that the applicant is completing personal care tasks independently with modification for pain with functional strength and motion, and therefore each of these treatment plans is not reasonable and necessary.

28I find the submissions of the applicant to be persuasive particularly in the treatment goals articulated by Angela Hubbard. The ability of the applicant to complete personal care tasks with medication for pain is not a sufficient reason to deny a treatment plan with a stated goal of pain reduction. Ms. Hubbard describe partial functionality in almost all tasks save for the areas of reaching lifting carrying kneeling and bending Where no function is found. Ms. Hubbard specifically outlines pain in right neck, lower back, bilateral knees and sacroiliac joints and categorizes pain for each of these injuries as severe. Further, Ms. Hubbard recommends on going occupational therapy to gain improvement in these areas.

29I find the applicant has met her onus to establish each of these treatment plans to be reasonable and necessary for the above stated reasons.

Issue #15 and 31. The applicant is not entitled to the unapproved amounts for these treatment plans for occupational therapy services

30I find the applicant did not meet her onus to establish that the unapproved amounts of each of these treatment plans is reasonable and necessary.

31The applicant submitted that each treatment plan was reasonable and necessary by the support of ongoing occupational therapy by Dr. Valentin, Dr. Williams, Dr. Chiodo and occupational therapist Angela Hubbard. The respondent partially approved each treatment plan but submitted that the cost was too great and outside the PSG. The applicant led no evidence in respect to the cost of each treatment plan.

32The onus is on the applicant to prove the overall cost of the treatment plan is reasonable; however, the applicant did not offer any evidence or submissions in this regard. I find the applicant did not meet her burden of proof and therefore she is not entitled to the unapproved amounts of each of these treatment plans.

Issue #38. The applicant is entitled to interest on overdue payment of benefits

33The applicant is entitled to interest on overdue payment of benefits pursuant to s. 51 of the Schedule.

Issue #37. The applicant is not entitled to an award under Reg. 664

34The 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.

35The applicant submitted the respondent "shopped" for an expert opinion that suited its position by changing its examiner, Dr. Khaled, to another assessor because the respondent did not like Dr. Khaled's conclusion on a particular issue. There is no evidence to support this proposition other than the submission by the applicant. An insurer is free to select its own assessors under the Schedule.

36I find there is no basis for an award in this matter.

ORDER

37I order the applicant is barred from proceeding on issues 30, 33 and 35 for failure to attend an insurer examination pursuant to s.55 of the Schedule.

38On the substantive Issues, I grant the application in part, as follows.

i. The applicant is entitled to:

a. The occupational therapy services treatment plans identified as issues #7 and 27.

b. Interest in accordance with s. 51 of the Schedule (issue #38)

ii. The applicant is not entitled to:

a. Any of the physiotherapy treatment plans identified as issues #5, 6, 8, 16, 17, 19, and 25.

b. Any of the unapproved amounts in the occupational therapy services treatment plans identified as issues #15 and 31.

c. An award under s. 10 of Reg. 664 (issue #37).