Citation: Myllymaa v. Wawanesa Insurance, 2025 ONLAT 23-011344/AABS

Licence Appeal Tribunal File Number: 23-011344/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:

Katia Myllymaa

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Raymond Selbie

APPEARANCES:

For the Applicant:

Kristen Hamilton, Counsel

For the Respondent:

Priyanka Monpara, Counsel

HEARD:

In Writing

OVERVIEW

1Katia Myllymaa, the applicant, was involved in an automobile accident on December 11, 2022 (incorrectly noted as December 12, 2022, in the Application and Case Conference Report and Order), and sought benefits pursuant to the Statutory Accident Benefits Schedule (SABS) - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties attended a case conference on March 13, 2024, but were unable to resolve the issues in dispute.

ISSUES

3The issue(s) in dispute are:

i. Is the applicant entitled to $800.00 for physiotherapy services, proposed by Jennifer Bull Physiotherapy in a treatment plan/OCF-18 (plan) submitted May 5, 2023?

ii. Is the applicant entitled to $350.00 for physiotherapy services, proposed by Jennifer Bull Physiotherapy in a plan submitted July 7, 2023?

iii. Is the applicant entitled to $240.00 for physiotherapy services, proposed by Jennifer Bull Physiotherapy in a plan submitted May 5, 2023?

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

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

RESULT

4I find that the applicant is not entitled to the disputed benefits described in paragraphs [3] i., [3] ii., and [3] iii. and as the result the claim for the disputed benefits together with an award as in paragraph [3] iv. and interest as in in paragraphs [3] v. are dismissed.

ANALYSIS

5The applicant was injured in a motor vehicle accident December 11, 2022, and asserts that she suffered injuries to her back, neck, hip as well as cognitive and psychological injuries and impairments.

6The applicant proceeded to obtain physiotherapy services proposed by Jennifer Bull Physiotherapy as set forth in section [3] i., [3] ii., and [3] iii. of the issues.

7The applicant acknowledges that Jennifer Bull Physiotherapy is a health care facility; however, neither the facility nor Jennifer Bull are registered with the Health Claim for Auto Insurance (HCAI) and that the treatment plans were not submitted to the Central Processing Agency (CPA).

8Pursuant to sections 14 and 15 of the Schedule, an insurer ‘shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is reasonable and necessary’.

9The October 2018 HCAI Guideline, Superintendent’s Guideline No. 02/18 (HCAI Guideline) is issued pursuant to s. 268.3(1) of the Insurance Act and, following s. 268.3(2), it shall be considered in interpreting the Schedule.

10The HCAI Guideline states that it ‘applies only to transactions between Participating Facilities and Participating Insurer…in respect to any claim for [Schedule] benefits,’ that it ‘applies to all insurers licensed in Ontario in respect of all claims for [Schedule] benefits,’ that ‘each such insurer is a Participating Insurer for the purposes of this Guideline, and that ‘a health care provider is unable to submit to CPA unless they are enrolled’. In general, the HCAI Guideline elaborates communications requirements for Schedule benefits claims for the purposes of ss. 64(7) through 64(14) of the Schedule.

11The HCAI Guideline and s. 66 of the Schedule identify the forms that must be communicated in accordance with the HCAI Guideline and ss. 64(7) through 64(14) of the Schedule. They include a treatment and assessment plan form (OCF-18), which is relevant to this dispute. They also require that communications be done through the CPA.

12Notably, the HCAI Guideline states that an OCF-18 must be submitted through the CPA ‘regardless of whether or not the Participating Facility is a Service Provider.’

13Section 64(15) of the Schedule states that ‘Subsections (7) to (14) do not apply to a document if the insurer waived the requirement that the document be submitted to the insurer in the circumstances permitted by this regulation’.

None of the treatment plans are payable because none of them were submitted to the respondent in accordance with the Schedule and the HCAI Guideline

14The applicant submitted that the Guideline should not apply to this application as it relates only to the relationship between a participating facility and a participating insurer.

15The applicant submitted that the treatment plans were reasonable and necessary to assist the applicant in reducing or eliminating the effects of her injuries/disabilities and as such, the requirement for the provider to be registered with HCAI and submit the claims through CPA do not apply or should be waived by the respondent.

16The respondent submitted that each of the disputed plans was submitted to the insurer by a provider not registered under HCAI and to the respondent directly rather than to CPA as required. Further, the respondent submitted that s. 64(15) of the Schedule is permissive rather than mandatory and as a waiver was not provided, the respondent is not required to approve the plan.

17I find that neither the health care provider Jennifer Bull nor the facility Jennifer Bull Physiotherapy are registered under HCAI and the plan was not submitted through CPA. The HCAI Guideline states that all insurers in Ontario are Participating Insurers, while ss. 64(7) through 64(14) express mandatory language (e.g. “shall be delivered” for communicating Schedule benefits claims, including each OCF-18 that is in this dispute). The HCAI Guideline also requires that an OCF-18 be submitted to the respondent via the CPA, ‘regardless of whether or not the Participating Facility is a Service Provider.’ I therefore find that the applicant has not demonstrated that the HCAI Guideline does not apply to the plans in dispute. Further, the respondent has not provided a waiver of these requirements pursuant to s. 64(15).

18Accordingly, I find that the applicant is not entitlement to payment to any of the plans in dispute, as none were submitted to the respondent in accordance with the Schedule and the HCAI Guideline.

There is no award under s. 10 of O. Reg 664 because the respondent unreasonably withheld or delayed payment to the applicant

19Considering that the applicant is not entitled to payment for any of the plans set forth in issues [3] i., [3] ii., and [3] iii., it follows that there is no unreasonable withholding or delay of payments to the applicant, and therefore the applicant is not entitled to an award under O. Reg. 664.

Interest

20Considering that the applicant is not entitled to the plans set forth in issues 3 i, ii, and iii, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

21I FIND AND ORDER THAT

i. The applicant is not entitled to $800.00 for outstanding physiotherapy services proposed by Jennifer Bull Physiotherapy in a plan submitted May 5, 2023.

ii. The applicant is not entitled to $350.00 for outstanding physiotherapy services proposed by Jennifer Bull Physiotherapy in a plan submitted July 7, 2023.

iii. The applicant is not entitled to $240.00 for outstanding physiotherapy services proposed by Jennifer Bull Physiotherapy in a plan submitted May 5, 2023.

iv. The respondent is not liable to pay an award under s. 10 of O Reg. 664.

v. The applicant is not entitled to interest on any overdue payments of benefits.

vi. The application is dismissed.