Citation: Mitchell v. TD General Insurance Company, 2025 ONLAT 23-002192/AABS

Licence Appeal Tribunal File Number: 23-002192/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:

Tracey Mitchell

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Mariana Peres Toledo, Counsel

For the Respondent: Deedra-Ann Lake, Counsel

HEARD: By way of written submissions

1Tracey Mitchell, the applicant, was involved in an automobile accident on January 16, 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, TD General 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 $2,393.40 for physiotherapy services, proposed by Physiohaus Wellness Centre in a treatment plan/OCF-18 (“treatment plan”) submitted April 27, 2021?

ii. Is the applicant entitled to $1,515.17 for massage therapy, proposed by Brenda Enns in a treatment plan dated December 22, 2023?

iii. Is the applicant entitled to $1,796.00 for physiotherapy services, proposed by Peter Hartley in a treatment plan dated December 7, 2023?

iv. Is the applicant entitled to $160.00 for osteopathy, submitted on a claim form (OCF-6) May 14, 2021?

v. Is the applicant entitled to $757.66 for massage therapy, physiotherapy and social work, submitted on a claim form (OCF-6) dated August 9, 2022?

vi. Is the applicant entitled to $1,660.00 for osteopathy and massage therapy, submitted on a claim form (OCF-6) dated July 21, 2023?

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

viii. Is the applicant entitled to interest on any overdue payment of benefits?

3The issues at paragraphs 2(ii) and (iii) were added pursuant to the Tribunal’s motion order dated February 16, 2024.

RESULT

4I find that:

i. the applicant is entitled to the April 27, 2021 treatment plan for physiotherapy and massage therapy;

ii. the applicant is entitled to the December 22, 2023 treatment plan for massage therapy;

iii. the applicant is entitled to the December 7, 2023 treatment plan for physiotherapy;

iv. the applicant is entitled to $520.00 for osteopathy expenses claimed by OCF-6;

v. the applicant is not entitled to expenses for social work counselling claimed by OCF-6;

vi. the applicant is entitled to reimbursement for the massage therapy and physiotherapy expenses submitted by OCF-6 that fall under the treatment plans listed above, to which I have found the applicant is entitled;

vii. the respondent is not liable to pay an award under s. 10 of Reg. 664; and

viii. the applicant is entitled to interest on overdue benefits under s. 51 of the Schedule.

ANALYSIS

Entitlement to treatment and assessment plans

5To 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.

6The applicant submits that she sustained whiplash, a concussion and soft tissue injures as a result of the accident.

The applicant is entitled to the April 28, 2021 treatment plan for physiotherapy and massage

7I find that the applicant is entitled to the April 28, 2021 treatment plan for physiotherapy and massage therapy services.

8The treatment plan, submitted April 28, 2021, was completed by Miriam McLean, physiotherapist and sought funding of $2,383.40 for 16 sessions of physiotherapy and 10 sessions of massage therapy. The goals of the treatment plan are: pain reduction; increase in strength; increased range of motion; return to activities of normal living; and return to pre-accident work activities.

9The applicant submits that the treatment plan is reasonable and necessary. The applicant relies on the treatment plan, the clinical notes and records (CNRs) of Miriam McLean dated January 11, 2021 and April 14, 2021 and the CNRs of Dr. Vasailiki Papukna, the applicant’s family doctor, dated February 8, 2021.

10The respondent submits that the applicant has not proven that the treatment plan is reasonable and necessary. In support of its position, the respondent relies on the insurer’s examination report of Dr. Mohammed Abdul Whab Khan, dated May 17, 2023, who opines that the applicant has already received adequate facility-based therapy and that further treatment is not expected to provide any subjective or objective improvement.

11I find that the applicant has provided corroborating contemporaneous medical evidence to support the proposed treatment plan because I find that:

i. Dr. Papukna recommended that she continue to receive massage therapy and physiotherapy for ongoing management of her injuries from the accident. This recommendation was made on February 8, 2021, which was less than three months prior to the submission of the treatment plan;

ii. The applicant’s treating physiotherapist recorded in January 2021 that the applicant reported feeling better after both a previous physiotherapy appointment and after massage therapy; and

iii. The applicant’s treating physiotherapist recorded in April 2021, shortly before the submission of the treatment plan, that the applicant continued to experience pain from her injuries.

12I prefer the recommendation of Dr. Papukna to the opinion of Dr. Khan, and give it more weight, because it was made contemporaneously to the submission of the treatment plan. Dr. Khan’s report is dated two years after the submission of the disputed treatment plan.

13The respondent submits that because Dr. Papukna notes no physical complaints after February 2021, that the applicant has not met her onus of proving that the disputed treatment plan is reasonable and necessary. I find, however, that the February 2021 note from Dr. Papukna is evidence that supports the applicant’s entitlement because it was written within three months of the treatment plan and because the applicant was receiving treatment between February and April 2021, as recommended by Dr. Papukna, and was reporting the pain she experienced during that period to her treating physiotherapist. I find that Dr. Papukna’s recommendation supports the applicant’s position that physiotherapy and massage therapy treatment are likely to help achieve the goals set out in the treatment plan.

14I also find that the cost of the proposed treatment is reasonable given the hourly rates for the physiotherapy and massage therapy proposed therein fall within the limits set out in the Professional Services Guideline.

15For the reasons set out above, I find that the applicant has proven, on a balance of probabilities, that the disputed treatment plan is reasonable and necessary. The applicant is entitled to the treatment plan for physiotherapy and massage therapy.

The applicant is entitled to the December 22, 2023 treatment plan for massage therapy services

16I find that the applicant is entitled to the December 22, 2023 treatment plan for massage therapy services.

17The treatment plan, dated December 22, 2023, and completed by Brenda Enns, physiotherapist, sought funding for $1,575.17 for massage therapy. The plan proposes 12 sessions of massage therapy. The goals of the treatment plan are: pain reduction; increase in strength; soft tissue release of injured muscles, relaxation and mindfulness; and return to activities of normal living.

18The applicant submits that the treatment plan is reasonable and necessary because the elevated muscle tension and myofascial pain in her shoulder contributes to decreased shoulder strength and range of motion, decreased grip strength, interrupted sleep and a decreased capacity to complete her pre-accident daily activities, including work. In support of her position, she relies on the treatment plan, the April 8, 2022 CNR of Cassandra Colley, registered massage therapist, and the February 10, 2024 clinical report of Carol Corry, registered massage therapist.

19The applicant further submits that pain relief and temporary relief of symptoms are legitimate goals of treatment and such treatments can be reasonable and necessary even if they will not lead to a full recovery. In support of this position, the applicant relies on the Tribunal decision of Thomas v. Aviva General Insurance, 2021 CanLII 19428 (ON LAT). While I am not required to follow Tribunal decisions, I agree with the principle set out therein, that ongoing treatment may be reasonable and necessary where it is found to alleviate an insured person’s pain and assist their ability to function.

20The respondent submits that the applicant has not proven that the treatment plan is reasonable and necessary and relies on the May 17, 2023 opinion of Dr. Khan that “further facility based treatment beyond what has already been provided is not expected to provide any subjective or objective improvement.”

21I find that the notes from the applicant’s treating massage therapists, Ms. Colley and Ms. Corry, confirm that the applicant reported that she felt relief from pain, increased comfort and increased concentration from her massage therapy treatments. I give the CNR of Ms. Colley little weight, however, as they were dated over one year prior to the treatment plan. I give more weight to the clinical report of Ms. Corry, which is dated less than two months after the treatment plan. I find that Ms. Corry’s report recommends ongoing massage therapy treatment for relief of the applicant’s symptoms of pain, headaches and range of motion restrictions, which in turn assists her in maintaining her level of employment and her ability to function in daily activities, at about the time the treatment plan was submitted. I find that Ms. Corry’s opinion is that long-term, consistent massage therapy treatment has been helping, and will continue to help, the applicant in this manner.

22Further, I prefer the report of Ms. Corry to that of Dr. Khan because Dr. Khan’s conclusion that “further facility based treatment beyond what has already been provided is not expected to provide any subjective or objective improvement” does not address whether the applicant is expected to obtain temporary pain relief or other symptomatic relief from further facility-based treatment. This is despite the applicant reporting to Dr. Khan that her previous massage therapy and physiotherapy treatments provided “relief for one to two days.” I find that Dr. Khan’s report does not consider the short-term and long-term benefits to the applicant of the pain and symptom relief that she has reported receiving from her ongoing massage therapy treatment.

23Therefore, I find that the applicant is likely to experience pain relief and increased range of motion from the proposed treatments, which are likely to help the applicant maintain her current level of functioning.

24I find that pain relief and relief of other symptoms, such as headaches and range of motion restrictions, even if temporary, and the maintenance of the applicant’s current levels of functioning, are reasonable goals for the proposed treatment. I also find that the cost of $1,515.17 for the proposed 12 massage therapy procedures is reasonable.

25As a result, I find that the applicant has proven, on a balance of probabilities, that the disputed treatment plan is reasonable and necessary. The applicant is entitled to the treatment plan for massage therapy treatment.

The applicant is entitled to the December 7, 2023 treatment plan for physiotherapy

26I find that the applicant is entitled to the December 7, 2023 treatment plan for physiotherapy treatment.

27The treatment plan, dated December 7, 2023, and completed by Peter Hartley, physiotherapist, sought funding for 16 sessions of physiotherapy at a cost of $1,796.00. The goals of the treatment plan are: pain reduction; increase in strength; increased range of motion; return to activities of normal living; and increase adherence to exercise program with trainer.

28The applicant submits that the treatment plan is reasonable and necessary. She relies on the treatment plan and the February 6, 2024 physiatry report of Dr. Macaluso, which recommended physiotherapy for her low back pain.

29The respondent submits that the applicant has not proven that the treatment plan is reasonable and necessary. It relies on the May 17, 2023 report of Dr. Khan, in which Dr. Khan opines that the applicant has received adequate facility-based therapy and further treatment is not expected to provide any subjective or objective improvement.

30I find that Dr. Macaluso assessed the applicant on December 15, 2023 and diagnosed the applicant with ongoing chronic neck and shoulder pain, which was attributed to both the accident and to a prior accident in 2013. I find that Dr. Macaluso also listed low back pain among the complaints that the applicant continued to have as of the date of the assessment. I find that Dr. Macaluso’s opinion largely concurred with the opinion of Dr. Khan, in that Dr. Macaluso found that the patient had reached maximal medical recovery from a soft tissue injury perspective. However, I find that Dr. Macaluso’s opinion differed in that he opined that there was a possibility of mild to modest further improvements in function by exploring several medical and rehabilitation recommendations, which included ongoing physiotherapy for the applicant’s low back pain.

31I find that the applicant reported to Dr. Macaluso that her left flank and lower back pain is reduced from 8/10 to 1/10 if she has had massage and mobilization of the lower back. I find that Dr. Macaluso recommended physiotherapy with a focus on active core stabilization, lower extremity flexibility and range of motion exercises, which he thought would reduce her lower back discomfort and pain.

32In contrast, Dr. Khan acknowledged that the applicant continued to experience pain, including an observation that the applicant reported tenderness in her lower back upon examination, but opined that additional physiotherapy was not reasonable and necessary because it would be unlikely to provide any improvement. Dr. Khan did not address whether additional physiotherapy would be likely to provide the applicant with pain relief or temporary relief of symptoms.

33I prefer Dr. Macaluso’s recommendations respecting physiotherapy over Dr. Khan’s opinion because it considers the validity of treatment that provides temporary pain relief. Further, I find that Dr. Macaluso’s report includes a number of medical and rehabilitative options that may provide the applicant with some relief and functional improvement, even though they are not expected to result in full recovery. As a result, I find that pain relief and mild to modest functional improvement of the applicant’s lower back can likely be accomplished through physiotherapy in the applicant’s case.

34I also find that the cost of the proposed treatment is reasonable given the hourly rates for the physiotherapy proposed therein fall within the limits set out in the Professional Services Guideline.

35I find that the applicant has proven, on a balance of probabilities, that the proposed treatment is reasonable and necessary. The applicant is entitled to the treatment plan for physiotherapy.

Osteopathy expenses claimed by OCF-6

36I find that the applicant is entitled to $540.00 for eight sessions of osteopathy services that were approved in the treatment plan dated November 26, 2020.

37The applicant submits that she incurred osteopathy expenses that are set out on two OCF-6 expense claim forms, with supporting invoices: the first, dated May 14, 2021, was for two sessions of osteopathy and totalled $160.00; the second, dated July 21, 2023, was for 8 sessions of osteopathy and totalled $480.00. The applicant submits that these expenses correspond to osteopathy services set out in a treatment plan dated November 26, 2020, which was approved by the respondent on December 2, 2020.

38The respondent accepts that it approved the treatment plan for 8 sessions of osteopathy services with Jorge Cota, totalling $640.00. However, the respondent submits that it approved this service at $80 per hour and that the applicant only received half-hour sessions. Therefore, the respondent submits that it should only be required to pay for half of the cost of osteopathy incurred by the applicant, or $320.00.

39Upon review of the treatment plan and the letter from the respondent approving the treatment plan, I find there is no indication therein that the osteopathy treatment approved was intended to be charged at $80.00 per hour. The treatment plan specifies that the cost is $80 per session. I have not been directed to any evidence that the sessions were required or intended to be an hour long.

40I find that the applicant received ten sessions of osteopathy: two at $80.00 per session and eight at $60.00 per session. The respondent only approved eight sessions of osteopathy. Despite some sessions being charged at a reduced cost, I find that the applicant is only entitled to the eight sessions that the respondent approved in the treatment plan. Therefore, I find that the applicant is entitled to two sessions at $80.00 per session, which were incurred first, and six sessions at $60.00 per session, for a total of $520.00.

41I find on a balance of probabilities, that the applicant is entitled to $520.00 for osteopathy expenses submitted by OCF-6.

Remaining expenses claimed by OCF-6

42I find that the applicant is not entitled to the amounts for social worker counselling claimed by OCF-6 dated August 9, 2022. However, the applicant is entitled to such amounts for massage therapy and physiotherapy, claimed by OCF-6 dated August 9, 2022 or July 21, 2023, as are covered by the treatment plans to which I have found the applicant is entitled above.

43The applicant submits that she is entitled to $757.66 for massage therapy, physiotherapy and social worker counselling as set out in the OCF-6 dated August 9, 2022, with supporting invoices, and $1,180.00 for massage therapy, as set out in the OCF-6 dated July 21, 2023, with supporting invoices. The applicant submits that she is entitled to payment for the treatments because she incurred them and they ought to have been approved. In support of this position, the applicant relies on a summary of extended health care benefits paid from September 3, 2020 to August 5, 2022, and various correspondence between the applicant and the respondent dated September 20, 2022, September 23, 2022, October 18, 2022 and March 16, 2023, which state that the applicant’s extended health coverage through her husband’s employer was terminated as of the end of July 2022.

44The respondent submits that the applicant is not entitled to these amounts as they are not part of an approved treatment plan. The respondent submits that requests for medical and rehabilitation benefits must be submitted through a treatment and assessment plan.

45I find that the applicant is not entitled to the expenses for medical and rehabilitation benefits simply because they were incurred. They must be part of a treatment plan that has been approved by the respondent or fall within one of the exceptions contained in s. 38(2) of the Schedule, none of which apply in this situation. I find that none of the documents relied on by the applicant included an approved treatment plan relating to the services listed in the OCF-6s.

46Therefore, I find that the applicant is not entitled to the amounts for social worker counselling claimed by OCF-6 dated August 9, 2022.

47However, given my findings above respecting the disputed treatment plans, the applicant is entitled to be reimbursed for the massage therapy and physiotherapy expenses submitted by OCF-6 under the treatment plans that I have found to be reasonable and necessary, up to the limits set out in those treatment plans. For clarity, the applicant is not entitled to the amounts of $757.66 or $1,180.00 claimed by OCF-6 in addition to the treatment plans.

48I find that the applicant is entitled to such amounts for massage therapy and physiotherapy, claimed by OCF-6 dated August 9, 2022 or July 21, 2023, as are covered by the treatment plans to which I have found the applicant is entitled above.

Interest

49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

50The applicant is entitled to interest on the three treatment plans for physiotherapy and massage therapy and on $520.00 of osteopathy expenses, as set out above.

Award

51The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.

52The applicant submits that the respondent is liable to pay an award as the respondent unreasonably withheld benefits despite the medical evidence supporting the reasonableness and necessity of those benefits. In addition, the applicant submits that the overall delay since the submission of the treatment plans in 2021 and 2023 is an aggravating factor in favour of an award.

53The respondent submits that certain delays in its adjusting of the applicant’s claims were caused when the applicant did not attend an insurer’s examination, when the applicant did not respond to the respondent’s request that she confirm in writing that she would attend a rescheduled insurer’s examination, and when the applicant did not provide the requested proof that her extended health care benefits were terminated. The respondent submits that it relied on the insurer’s examination of Dr. Khan and did not deny benefits unreasonably.

54I find that the applicant has not directed me to any evidence that the respondent acted unreasonably. I find that the respondent’s denial of benefits was based, initially, on the applicant’s non-attendance at a scheduled insurer’s examination and then, later, on the report of Dr. Khan. The presence of medical evidence supporting the applicant’s claim does not make the respondent’s denial of benefits unreasonable in these circumstances.

55I find that the applicant has not demonstrated, on a balance of probabilities, that the respondent is liable to pay an award under s. 10 of Reg. 664.

ORDER

56I find that: