[SS] v. Jevco Insurance, 2025 CanLII 72392

Citation: [SS] v. Jevco Insurance, 2025 ONLAT 23-010440/AABS

Licence Appeal Tribunal File Number: 23-010440/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:

[SS] (A minor by their litigation guardian, [MS)

Applicant

and

Jevco Insurance

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Georgiana Masgras, Counsel

For the Respondent: Theomarcus Giannou, Counsel

HEARD: By way of written submissions

OVERVIEW

1[SS], the applicant, was involved in an automobile accident on July 24, 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, Jevco Insurance, 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 $3,591.50 for chiropractic services, proposed by Mohannad Bakri in a treatment plan/OCF-18 (“plan”) dated December 14, 2021?

ii. Is the applicant entitled to $3,791.00 for physiotherapy services, proposed by Mohannad Bakri in a plan dated December 30, 2022?

iii. Is the applicant entitled to $8,441.10 for a neurological assessment, proposed by Meditecs HM IME in a treatment plan dated January 21, 2023?

iv. Is the applicant entitled to $4,373.10 for a chronic pain assessment, proposed by Meditecs HM IME in a treatment plan dated January 21, 2023?

v. Is the applicant entitled to $2,867.95 for an attendant care assessment, proposed by Meditecs HM IME in a treatment plan dated January 21, 2023?

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

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

3In their written response, the respondent indicates that the issue regarding the Minor Injury Guideline (MIG) determination has been resolved, as the applicant has been removed from the MIG. Therefore, I have not included it as an issue in dispute.

RESULT

4The applicant has not proven on a balance of probabilities that they are entitled to the treatment plans at issue.

5As there are no overdue benefit payments, no interest is owing.

6As no benefit payments have been unreasonably withheld or delayed, no award is owing.

ANALYSIS

7To 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.

Chiropractic Services

8The applicant has not proven on a balance of probabilities that the proposed chiropractic services are reasonable and necessary.

9The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, and return to activities of normal living.

10The treatment plan includes 24 physical rehabilitation sessions, 10 acupuncture sessions, assessment, and documentation.

11The applicant has not directed me to any medical evidence outside of the treatment plan itself to demonstrate that the treatment plan is reasonable and necessary.

12The respondent argues that the treatment plan is not reasonable and necessary based on an independent assessment by Dr. Kopyto, family physician, and Medical Evaluator, completed on January 10, 2022 (“Dr. Kopyto’s assessment).

13I find that the assessment completed by Dr. Kopyto does not support the applicant’s claim that chiropractic services are reasonable and necessary. Dr. Kopyto found that the applicant sustained uncomplicated musculoligamentous strains based on his document review, physical examination, and clinical findings. Based on these findings, Dr. Kopyto concludes that with no evidence of any conditions that would preclude recovery from her injuries, the applicant can be treated within the MIG.

14I find that the applicant has not proven on a balance of probabilities that the chiropractic treatment plan is reasonable and necessary. The applicant has not directed me to any compelling medical evidence that this treatment plan is reasonable and necessary. The applicant has not met their onus to substantiate this treatment plan as reasonable and necessary. The report by Dr. Kopyto provided a clinical finding that this treatment plan was not reasonable and necessary base on his assessment.

15The applicant is not entitled to chiropractic services.

Physiotherapy Services

16The applicant has not proven on a balance of probabilities that the proposed physiotherapy services are reasonable and necessary.

17The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, and return to activities of normal living.

18The treatment plan includes 24 physical rehabilitation sessions, 12 therapy, back NEC sessions, assessment, and documentation.

19The applicant has not directed me to any medical evidence outside of the treatment plan itself to demonstrate that the treatment plan is reasonable and necessary.

20The respondent argues that the treatment plan is not reasonable and necessary based on Dr. Koptyo’s, assessment.

21I find that the assessment completed by Dr. Koptyo does not support the applicant’s claim that physiotherapy services are reasonable and necessary. The analysis is the same as that provided above.

22I find that the applicant has not proven on a balance of probabilities that the physiotherapy treatment plan is reasonable and necessary. The applicant has not directed me to any compelling medical evidence that this treatment plan is reasonable and necessary. The applicant has not met their onus to substantiate this treatment plan as reasonable and necessary. The report by Dr. Kopyto, provided a clinical finding that this treatment plan was not reasonable and necessary base on his assessment.

23The applicant is not entitled to physiotherapy services.

Neurological Assessment

24The applicant has not proven on a balance of probabilities that the proposed neurological assessment is reasonable and necessary.

25The OCF-18 was not submitted as evidence to review their goals or what these plans would consist of.

26The applicant has not directed me to any medical evidence outside of the treatment plan itself to demonstrate that the treatment plan is reasonable and necessary.

27The respondent argues that the treatment plan is not reasonable and necessary based on an independent general practitioner assessment by Dr. Kopyto, family physician, and Medical Evaluator, completed on February 2, 2023.

28I find that the assessment completed by Dr. Kopyto does not support the applicant’s claim that a neurological assessment is reasonable and necessary. The analysis is the same as that provided above.

29I find that the applicant has not proven on a balance of probabilities that the neurological assessment treatment plan is reasonable and necessary. The applicant has not directed me to any compelling medical evidence that this treatment plan is reasonable and necessary. The applicant has not met their onus to substantiate this treatment plan as reasonable and necessary. The report by Dr. Kopyto, provided a clinical finding that this treatment plan was not reasonable and necessary based on his assessment.

30The applicant is not entitled to the neurological assessment.

Attendant Care Assessment

31The applicant has not proven on a balance of probabilities that the proposed attendant care assessment is reasonable and necessary.

32The OCF-18 was not submitted as evidence to review their goals or what these plans would consist of.

33The applicant has not directed me to any medical evidence outside of the treatment plan itself to demonstrate that the treatment plan is reasonable and necessary.

34The respondent argues that the treatment plan is not reasonable and necessary based on an independent general practitioner assessment by Dr. Kopyto, family physician, and Medical Evaluator, completed on February 2, 2023 and an occupational therapy in-home assessment by Ms. Woods, occupational therapist, completed on June 26, 2024.

35I find that the assessment completed by Dr. Kopyto does not support the applicant’s claim that an attendant care assessment is reasonable and necessary. The analysis is the same as that provided above.

36I find that the in-home assessment by Ms. Woods does not support the applicant’s claim that an attendant care assessment is reasonable and necessary. Ms. Woods found no functional impairment through her assessment. During the assessment the applicant reported being independent with her personal care, had resumed her household chores, and is attending school full time.

37I find that the applicant has not proven on a balance of probabilities that the physiotherapy treatment plan is reasonable and necessary. The applicant has not directed me to any compelling medical evidence that this treatment plan is reasonable and necessary. The report by Dr. Koptyo, and the assessment by Ms. Woods both agree that this treatment plan was not reasonable and necessary base on their assessments.

38The applicant is not entitled to the attendant care assessment.

Chronic Pain Assessment

39The applicant has not proven on a balance of probabilities that the proposed chronic pain assessment is reasonable and necessary.

40The OCF-18 was not submitted as evidence to review their goals or what these plans would consist of.

41The applicant believes that her injuries as a result of the accident have become chronic. The applicant relies on the clinical notes and records (CNRs) of [a doctor].

42I find that the CNRs of [a doctor] do not support the applicant’s claim that a chronic pain assessment is reasonable and necessary. In [a doctor’s] CNRs there is no mention of SI joint pain after November 12, 2020. In the CNRs where there is reporting, [a doctor] instructed the applicant to complete her home exercise program. The applicant was not referred to any pain specialist or testing. On May 3, 2024, that applicant attempted to book an online appointment with [a doctor] with the reason for the visit listed as, “I complain of pain in my back a lot”. There is no attribution to the source or cause of the pain.

43The respondent argues that the treatment plan is not reasonable and necessary based on an independent general practitioner assessment by Dr. Koptyo, family physician, and Medical Evaluator, completed on February 2, 2023.

44I find that the assessment completed by Dr. Kopyto does not support the applicant’s claim that an attendant care assessment is reasonable and necessary. The analysis is the same as that provided above.

45I find that the applicant has not proven on a balance of probabilities that the chronic pain assessment is reasonable and necessary. The applicant has not directed me to any compelling medical evidence that this treatment plan is reasonable and necessary. The applicant has not met their onus to substantiate this treatment plan as reasonable and necessary.

46The applicant is not entitled to the chronic pain assessment.

Section 38 and the treatment plan denials

47I find that the applicant has not proven on a balance of probabilities that the respondent did not comply with the s. 38 requirements in their denials of the various treatment plans.

48Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

49If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

50The applicant argues that the denial letters suggest that the respondent refused to consider the medical evidence and did not provide medical reasons as to why they denied the submitted treatment plans. The respondent argues that they conformed to the requirements of s. 38(8).

51I have reviewed all of the denials provided by the respondent. Each of the denial letters identify the goods and services in the treatment plan, they refer to a s. 44 examination, and quote from the s. 44 examination, the doctor’s reasoning for why the various treatment plans are not considered reasonable and necessary. An example of this is “based on Dr. Kopyto’s assessment, the goods and services in the OCF-18 detailed above are not reasonable and necessary as there is no objective evidence of an accident related musculoskeletal impairment for which further physical rehabilitation is indicated”.

52Each of the denial letters also indicate that a copy of the denial letter, and the Insurer’s Examination report would be provided to the health practitioner who prepared the OCF-18 to ensure they understand the respondent’s position.

53I find that the respondent’s denial notices comply with the requirements of s. 38(8) because the denials provided specific details about the insured’s condition forming the basis for the insurer’s decision; and used language adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. In my review of the respondent’s denial letters, they adhered to the identified elements of s. 38(8).

54I find that the treatment plans are not payable pursuant to s. 38.

Interest

55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.

Award

56The 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. As no benefit payments have been unreasonably withheld or delayed, no award in owing.

ORDER

57I find that:

i. The applicant is not entitled to the treatment plans in dispute.

ii. No interest is owing.

iii. No award is owing.

iv. The application is dismissed.