Licence Appeal Tribunal File Number: 24-006797/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:
Shane Squire
Applicant
and
Motor Vehicle Accident Claims Fund (MVACF)
Respondent
DECISION
VICE-CHAIR:
Robert Maich
APPEARANCES:
For the Applicant:
Brent McQuestion, Counsel
For the Respondent:
Davis Bowers, Counsel
Heather Kawaguchi, Counsel
HEARD: In Writing
OVERVIEW
1Shane Squire, the applicant, was involved in an automobile accident on December 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, Motor Vehicle Accident Claims Fund, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was involved in a single car accident. On November 23, 2023 the respondent agreed the applicant had sustained a catastrophic impairment under criterions 2, 6 and 7 of the Schedule.
ISSUES
3The issues in dispute are:
Is the applicant entitled to $559.11 ($3,771.12 less $3,212.01 approved) for occupational therapy services, proposed by Entwistle Power Solutions for Living in a treatment plan/OCF-18 (“plan”) dated May 29, 2023?
Is the applicant entitled to $6,216.18 for other goods and services, proposed by Apollo Applied Research Inc. in a plan dated July 6, 2023?
Is the applicant entitled to $80.07 ($1,237.90 less $1,157.83 approved) for occupational therapy services, proposed by Entwistle Power Solutions for Living in a plan dated July 6, 2023?
Is the applicant entitled to $80.08 ($4,277.28 less $4,197.20 approved) for occupational therapy services, proposed by Entwistle Power Solutions for Living in a plan dated February 21, 2024?
Is the applicant entitled to $4,177.26 ($5,256.54 less $1,079.28 approved) for physiotherapy services, proposed by S. Rajah Physiotherapy Professional Corporation in a plan dated March 11, 2024?
Is the applicant entitled to $343.20 ($5,547.76 less $5,204.56 approved) for occupational therapy services, proposed by Kindree Occupational Therapy Professional Corporation in a plan dated March 27, 2024?
Is the applicant entitled to $3,500.00 for occupational therapy services, proposed by Cheryl Hendry and Cole Fawcett in a plan dated March 28, 2024?
Is the applicant entitled to $90.76 ($3,477.20 less $3,386.44 approved) for occupational therapy services, proposed by Cheryl Hendry and Allison Clark in a plan dated April 24, 2024?
Is the applicant entitled to $80.08 ($1,889.32 less $1,809.24 approved) for occupational therapy services, proposed by Kindree Occupational Therapy Professional Corporation in a plan dated April 29, 2024?
Is the applicant entitled to $645.08 ($5,104.61 less $4,459.53 approved) for occupational therapy services, proposed by Bartimaeus Rehabilitation Services Inc. in a plan dated May 3, 2024?
Is the applicant entitled to $579.49 ($5,054.61 less $4,475.12 approved) for rehabilitation therapy services, proposed by Bartimaeus Rehabilitation Services Inc. in a plan dated September 6, 2024?
Is the applicant entitled to $640.00 for Cannabis from Buddha Boys, submitted on a claim form (OCF-6) dated June 25, 2024?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to $559.11 ($3,771.12 less $3,212.01 approved) for occupational therapy services, proposed in a plan dated May 29, 2023.
5The applicant is entitled to $6,216.18 for other goods and services, proposed in a plan dated July 6, 2023.
6The applicant is not entitled to $80.07 ($1,237.90 less $1,157.83 approved) for occupational therapy services, proposed in a plan dated July 6, 2023.
7The applicant is not entitled to $80.08 ($4,277.28 less $4,197.20 approved) for occupational therapy services, proposed in a plan dated February 21, 2024.
8The applicant is not entitled to $4,177.26 ($5,256.54 less $1,079.28 approved) for physiotherapy services, proposed in a plan dated March 11, 2024.
9The applicant is entitled to $343.20 ($5,547.76 less $5,204.56 approved) for occupational therapy services, proposed in a plan dated March 27, 2024.
10The applicant is not entitled to $3,500.00 for occupational therapy services, proposed in a plan dated March 28, 2024.
11The applicant is not entitled to $90.76 ($3,477.20 less $3,386.44 approved) for occupational therapy services, proposed in a plan dated April 24, 2024.
12The applicant is not entitled to $80.08 ($1,889.32 less $1,809.24 approved) for occupational therapy services, proposed in a plan dated April 29, 2024.
13The applicant is entitled to $645.08 ($5,104.61 less $4,459.53 approved) for occupational therapy services, proposed by Bartimaeus Rehabilitation Services Inc. in a plan dated May 3, 2024?
14The applicant is entitled to $579.49 ($5,054.61 less $4,475.12 approved) for rehabilitation therapy services, proposed in a plan dated September 6, 2024?
15The applicant is entitled to $640.00 for Cannabis, submitted on a claim form dated June 25, 2024.
16The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
Legal Test
17To 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.
18The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
Is the applicant entitled to $559.11 ($3,771.12 less $3,212.01 approved) for occupational therapy services?
19I find the applicant is not entitled to $559.11 ($3,771.12 less $3,212.01 approved) for occupational therapy services.
20The applicant submitted the respondent reduced the amount submitted for the OCF-18 without legal justification or reason in regard to document fees and travel expenses The applicant also submitted that the respondent did not provide a basis or authority to support its refusal to pay. The applicant relies upon H.R. v Intact Insurance Company, 2023 CanLII 56030 (ON LAT) wherein an insurer was held liable for brokerage fees and documentation where the respondent failed to provide a basis or authority to support why the expenses were not reasonable and necessary.
21The respondent submitted the applicant is not automatically entitled to the maximum benefit for filling out an OCF-18 of $200.00 under the Schedule. The respondent submitted that one hour is sufficient time for an occupational therapist (“OT”) to fill out the form at $99.75. The respondent also relied upon H.R. v Intact Insurance Company, 2023 CanLII 56030 (ON LAT) where this Tribunal held that an applicant is not necessarily entitled to the full $200.00 documentation fee. Similarly in Rhooms v. Wawanesa Mutual Insurance Company, 2022 CanLII 98061 (ON LAT) at para 54, this Tribunal found that time spent on completing the OCF-18 was denied where there was no hourly rate detailed. Further the respondent submitted that travel time for 6 sessions was claimed when only 4 sessions were outlined in the plan to held in-home.
22I find the submissions of the respondent to be persuasive; although it is open to the applicant to claim up to $200.00 for form completion, it is not unreasonable to permit one hour for its completion unless the applicant can demonstrate why the amount is insufficient. Although a $200.00 OCF-18 form fee is permitted under the Professional Services Guideline (“PSG”), it does not create an automatic entitlement to the full amount. I find one hour for form completion is reasonable and I have not been provided with any other reason why it is not. I also find 6 travel times claimed for 4 sessions has not been substantiated as no submissions were made to speak to it.
23I find the applicant is not entitled to $559.11 ($3,771.12 less $3,212.01 approved) for occupational therapy services for the above stated reasons.
Is the applicant entitled to $6,216.18 for other goods and services?
24I find the applicant is entitled to $6,216.18 for other goods and services, specifically medical cannabis proposed by Apollo Applied Research.
25The applicant submitted that the test for whether a respondent is liable to pay prescription medication claimed by an applicant is found at 17-006850 v. Royal Sun Alliance Insurance, 2018 CanLII 132555 (ON LAT), at para. 18 outlining the 3 factors to be considered:
a. the motor vehicle accident caused the impairment that necessitates the prescription medication;
b. the prescription medication is reasonable and necessary; and
c. a regulated health professional provides the prescription.
26The applicant submitted the OCF-18 of Dr. Stinson, physician, dated July 6, 2023 provided medical support for the applicant’s need for cannabis as follows:
Secondary to the continuing effects of chronic post-traumatic pain, Mr. Squire also suffers from chronic neuropathic pain. Cannabis therapy will effectively manage his pain and psycho-emotional symptoms therefore increasing his functionality... The patient previously tried standard first and second line treatment options but an inadequate response was achieved. The client [the Applicant] shared his absolute preference for natural remedies, including cannabis for pain management, and his efforts to stay away from Western medicine, preferring to use food and natural practices as his primary source of health and wellness.
27The applicant also submitted as an indigenous individual he has cultural preference for natural remedies such as cannabis over opioids or other pain medication. Further, the applicant submitted the respondent ignored the applicant’s cultural reasoning for healthcare preferences.
28The respondent submitted the use of medical cannabis was not recommended in the report of Dr. Maser, physician, dated January 15, 2024 and its use is not reasonable and necessary. Further, the respondent stated the criteria for medical prescription was not met as it lacks information about classification (indica/sativa), or consumption method (flower. oil, vape, edible), or THC content and duration of course. Further, the respondent submitted the applicant previously grew cannabis plants suggestive of recreational use prior to the accident. The respondent also submitted the applicant consumed substantial amounts of recreational cannabis at high THC levels with minimal benefit and was at risk of developing cannabis use disorder.
29Further, the respondent submitted there is little scientific evidence supporting the benefit of cannabis and that an insurer is not liable to pay medical benefits that are experimental in nature as per s.15(2)(a) of the Schedule.
30I find the submissions of the applicant to be persuasive; the treatment plan meets the test outlined in at 17-006850 v. Royal Sun Alliance Insurance. I find that the cause of the impairment was the accident, the prescription is reasonable and necessary as documented by the evidence of Dr. Stinson, who was clear and unequivocal that the applicant suffered from chronic post-traumatic and neuropathic pain which is effectively treated by cannabis for these types of pain; further the cannabis was prescribed by a regulated health professional, namely Dr. Stinson.
31I find that the respondent’s submission that the applicate previously used cannabis recreationally is not relevant to the legal test in 17-006850 v. Royal Sun Alliance Insurance. I find the respondent’s submission that little scientific research indicates a benefit to cannabis use is unpersuasive, as it is approved for medical use in Canada. I also find that the respondent’s concern for the applicant’s risk of developing cannabis use disorder is a matter between the applicant and his health care provider, nor it is not relevant to the legal test.
32Further, I acknowledge the applicant’s submissions that as an indigenous person, he prefers a natural remedy over pharmaceutical solutions; this is a cultural feature that is important to recognize. Although, in this circumstance it does not impact the reasonable and necessary test, cultural considerations must be taken into account. It is important to note the applicant produced evidence from a regulated health care professional that the treatment course is of some benefit to the applicant.
33I find the applicant is entitled to $6,216.18 for other goods and services, specifically medical cannabis, proposed by Apollo Applied Research.
Is the applicant entitled to $80.07 ($1,237.90 less $1,157.83 approved) for occupational therapy services?
34I find the applicant is not entitled to $80.07 documentation fee ($1,237.90 less $1,157.83 approved) for occupational therapy services.
35The applicant submitted the respondent reduced the amount payable for the OCF-18 form completion without legal justification or reason, I note that the applicant did not make substantive submissions as to why the outstanding amount were reasonable and necessary.
36The respondent submitted it reduced the OCF-18 form completion fee to one hour and requested explanation why more time should be approved for the form completion cost; the respondent submitted it did not receive an explanation from the applicant.
37I find the submissions of the respondent to be persuasive; although it is open to the applicant to claim up to $200.00 for form completion, it is not unreasonable to permit one hour for its completion unless the applicant can demonstrate why the amount is insufficient. I find that because a $200.00 OCF-18 form fee is permitted under the PSG, it is not an automatic entitlement to the full amount. One hour for form completion is reasonable and I have not been provided with any other reason by the applicant why it is not. I find the applicant has not met its onus to support its claim.
38I find the applicant is not entitled to $80.07 ($1,237.90 less $1,157.83 approved) for occupational therapy services.
Is the applicant entitled to $80.08 ($4,277.28 less $4,197.20 approved) for occupational therapy services?
39I find the applicant is not entitled to $80.08 documentation fee ($4,277.28 less $4,197.20 approved) for occupational therapy services.
40The applicant submitted the respondent reduced the amount payable for the OCF-18 form completion without legal justification or reason, I note that the applicant did not make substantive submissions as to why the outstanding amount were reasonable and necessary.
41The respondent submitted it reduced the OCF-18 form completion fee to one hour and requested explanation why more time should be approved for the form completion cost; the respondent submitted it did not receive an explanation from the applicant.
42I find the submissions of the respondent to be persuasive; although it is open to the applicant to claim up to $200.00 for form completion, it is not unreasonable to permit one hour for its completion unless the applicant can demonstrate why the amount is insufficient. Although a $200.00 OCF-18 form fee is permitted under the PSG, I find the PSG does not create an automatic entitlement to the full amount. One hour for form completion is reasonable and I have not been provided with any other reason by the applicant why it is not. I find the applicant has not met its onus to support its claim.
43I find the applicant is not entitled to $80.08 ($4,277.28 less $4,197.20 approved) for occupational therapy services.
Is the applicant entitled to $4,177.26 ($5,256.54 less $1,079.28 approved) for physiotherapy services?
44I find the applicant is not entitled to $4,177.26 ($5,256.54 less $1,079.28 approved) for physiotherapy services, specifically, 6 of 24 physiotherapy sessions were approved with the balance denied.
45The applicant submitted the respondent had previously approved similar treatment plans as reasonable and necessary; however, the respondent adopted a recommendation from a report dated December 28, 2022 by Dr. Safir, orthopedic surgeon, that the applicant’s right should range of motion issues should be dressed by an at-home exercise program. I note the applicant made no specific submissions as to why the subject treatment plan is reasonable and necessary and chose to rely upon previous approvals from similar plans to meet its onus.
46The respondent submitted the applicant did not make any submissions as to why the denied sessions were reasonable and necessary and did not meet its onus.
47I find the previously approved sessions are not proof that further sessions are reasonable and necessary.
48The onus rests with the applicant to provide sufficient evidence that the proposed treatment is reasonable and necessary. Particularly in the case of ongoing treatment, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable. I find the applicant has not met his onus and did not present any compelling evidence that the treatment plan was reasonable and necessary. The Tribunal cannot construct submissions on behalf on any party should it fail to make a discernable submission to further its case.
49I find the applicant is not entitled to $4,177.26 ($5,256.54 less $1,079.28 approved) for physiotherapy services.
Is the applicant entitled to $343.20 ($5,547.76 less $5,204.56 approved) for occupational therapy services?
50I find the applicant is entitled to $343.20 milage expenses ($5,547.76 less $5,204.56 approved) for occupational therapy services.
51The applicant submitted that as a consequence of his accident-related injuries and ensuing amputation, he requires non-facility based rehabilitation in a community and situational based approaches; these facts are not contested between the parties and it is understood the applicant lives on an underserviced reservation. The applicant submitted that travel expenses for such treatment is reasonable and relies upon Maude v. State Farm Mutual Automobile Insurance Company, 2014 CarswellOnt 14043 where an indigenous person was required to travel off site from his reservation as it was under-serviced.
52The respondent submitted that it previously approved the service provider’s expenses and travel time; the sum denied was mileage expense for the provider and approval of both mileage and travel time would be duplicative.
53I do not find the respondent’s submission to be persuasive; travel time and mileage are completely separate matters as the former addresses the time consumed by the service provider to travel, while the latter addresses the physical cost of transportation, specifically fuel, wear and tear on the vehicle and insurance/maintenance costs.
54I find the applicant’s submissions and the reasoning in upon Maude v. State Farm Mutual Automobile Insurance Company, 2014 CarswellOnt 14043, to be persuasive. I find the remote nature of a reservation may involve travel time and travel costs that are not incurred in the ordinary course of treatment. I find the remote nature of an underserviced reservation may not serve as a reason to effectively deny medical services that have been found to be reasonable and necessary.
55I find the applicant is entitled to $343.20 ($5,547.76 less $5,204.56 approved) for occupational therapy services.
Is the applicant entitled to $3,500.00 for occupational therapy services (social work counselling)?
56I find the applicant is not entitled to $3,500.00 for occupational therapy services.
57The applicant made no submissions as to why the treatment plan was reasonable and necessary, and limited his submissions to criticism of the insurer’s examiner as having an “obvious disconnect” in his reasoning. The applicant submitted that a nurse case worker wrote to the insurer asking for reconsideration of the plan.
58The respondent submitted the applicant underwent three IE examinations with a psychiatrist, and none of the examiners found the applicant had symptoms to warrant a DSM-5 diagnosis. Further, the respondent submitted the applicant did not present any qualified medical evidence that the social work counselling was reasonable and necessary.
59I find the applicant has not met his onus and did not present any compelling evidence that the treatment plan was reasonable and necessary. The Tribunal cannot construct submissions on behalf on any party should it fail to make a discernable submission to further its case.
60I find the applicant is not entitled to $3,500.00 for occupational therapy services.
Is the applicant entitled to $90.76 ($3,477.20 less $3,386.44 approved) for occupational therapy services?
61I find the applicant is not entitled to $90.76 document fee ($3,477.20 less $3,386.44 approved) for occupational therapy services.
62The applicant submitted the respondent reduced the amount payable for the OCF-18 form completion without legal justification or reason, I note that the applicant did not make substantive submissions as to why the outstanding amount was reasonable and necessary
63The respondent submitted it reduced the OCF-18 form completion fee to one hour and requested explanation why more time should be approved for the form completion cost; the respondent submitted it did not receive an explanation from the applicant.
64I find the submissions of the respondent to be persuasive; although it is open to the applicant to claim up to $200.00 for form completion, it is not unreasonable to permit one hour for its completion unless the applicant can demonstrate why the amount is insufficient. Although up to $200.00 OCF-18 form fee is permitted under the PSG, the PSG does not create an automatic entitlement to the full amount. One hour for form completion is reasonable and I have not been provided with any other reason by the applicant why it is not. I find the applicant has not met its onus to support its claim.
65I find the applicant is not entitled to $90.76 ($3,477.20 less $3,386.44 approved) for occupational therapy services.
Is the applicant entitled to $80.08 ($1,889.32 less $1,809.24 approved) for occupational therapy services?
66I find the applicant is not entitled to $80.08 document fee ($1,889.32 less $1,809.24 approved) for occupational therapy services.
67The applicant submitted the respondent reduced the amount payable for the OCF-18 form completion without legal justification or reason, I note that the applicant did not make substantive submissions as to why the outstanding amount were reasonable and necessary.
68The respondent submitted it reduced the OCF-18 form completion fee to one hour and requested explanation why more time should be approved for the form completion cost; the respondent submitted it did not receive an explanation from the applicant.
69I find the submissions of the respondent to be persuasive; although it is open to the applicant to claim up to $200.00 for form completion, it is not unreasonable to permit one hour for its completion unless the applicant can demonstrate why the amount is insufficient. Although the PSG permits up to a $200.00 OCF-18 form fee, the PSG does not create an automatic entitlement to the full amount. One hour for form completion is reasonable and I have not been provided with any other reason by the applicant why it is not. I find the applicant has not met its onus to support its claim.
70I find the applicant is not entitled to $80.08 ($1,889.32 less $1,809.24 approved) for occupational therapy services.
Is the applicant entitled to $645.08 ($5,104.61 less $4,459.53 approved) for occupational therapy services?
71I find the applicant entitled to $645.08 ($5,104.61 less $4,459.53 approved) for occupational therapy services.
72The parties repeat their submission as outlined in paragraphs [51] and [52] above.
73I adopt my findings as outlined in paragraphs [53] and [54] above, and find the applicant is entitled to $645.08 ($5,104.61 less $4,459.53 approved) for occupational therapy services.
Is the applicant entitled to $579.49 ($5,054.61 less $4,475.12 approved) for rehabilitation therapy services?
74I find the applicant entitled to $579.49 ($5,054.61 less $4,475.12 approved) for rehabilitation therapy services.
75The parties repeat their submission as outlined in paragraphs [51] and [52] above, with respect to mileage expenses.
76I reiterate my findings as outlined in paragraphs [53] and [54] above, and find the applicant is entitled to $579.49 ($5,054.61 less $4,475.12 approved) for rehabilitation therapy services.
Is the applicant entitled to $640.00 for Cannabis?
77The applicant is entitled to $640.00 for cannabis.
78The applicant and respondent adopted the same position as outlined in paragraphs [25] through [29] above.
79I reiterate the same findings as outlined in paragraphs [30] and [32] above and find the applicant is entitled to $640.00 for cannabis.
Interest
80Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find the applicant is entitled to interest on the overdue benefits pursuant to s. 51 of the Schedule.
ORDER
81The Tribunal’s final Orders:
The applicant is not entitled to $559.11 ($3,771.12 less $3,212.01 approved) for occupational therapy services, proposed by Entwistle Power Solutions for Living in a plan dated May 29, 2023.
The applicant is entitled to $6,216.18 for other goods and services, proposed by Apollo Applied Research Inc. in a plan dated July 6, 2023.
The applicant is not entitled to $80.07 ($1,237.90 less $1,157.83 approved) for occupational therapy services, proposed by Entwistle Power Solutions for Living in a plan dated July 6, 2023.
The applicant is not entitled to $80.08 ($4,277.28 less $4,197.20 approved) for occupational therapy services, proposed by Entwistle Power Solutions for Living in a plan dated February 21, 2024.
The applicant is not entitled to $4,177.26 ($5,256.54 less $1,079.28 approved) for physiotherapy services, proposed by S. Rajah Physiotherapy Professional Corporation in a plan dated March 11, 2024.
The applicant is entitled to $343.20 ($5,547.76 less $5,204.56 approved) for occupational therapy services, proposed by Kindree Occupational Therapy Professional Corporation in a plan dated March 27, 2024.
The applicant is not entitled to $3,500.00 for occupational therapy services, proposed by Cheryl Hendry and Cole Fawcett in a plan dated March 28, 2024.
The applicant is not entitled to $90.76 ($3,477.20 less $3,386.44 approved) for occupational therapy services, proposed by Cheryl Hendry and Allison Clark in a plan dated April 24, 2024.
The applicant is not entitled to $80.08 ($1,889.32 less $1,809.24 approved) for occupational therapy services, proposed by Kindree Occupational Therapy Professional Corporation in a plan dated April 29, 2024.
The applicant is entitled to $645.08 ($5,104.61 less $4,459.53 approved) for occupational therapy services, proposed by Bartimaeus Rehabilitation Services Inc. in a plan dated May 3, 2024?
The applicant is entitled to $579.49 ($5,054.61 less $4,475.12 approved) for rehabilitation therapy services, proposed by Bartimaeus Rehabilitation Services Inc. in a plan dated September 6, 2024?
The applicant is entitled to $640.00 for Cannabis from Buddha Boys, submitted on a claim form (OCF-6) dated June 25, 2024.
Released: March 9, 2026
__________________________
Robert Maich
Vice-Chair