Mauricio v. Primmum Insurance Company, 2026 CanLII 26832

Licence Appeal Tribunal

Citation: Mauricio v. Primmum Insurance Company, 2026 ONLAT 24-006339/AABS Licence Appeal Tribunal File Number: 24-006339/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:

Paula Mauricio Applicant

and

Primmum Insurance Company Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Christian Genova, Counsel For the Respondent: Andrew Cottreau, Counsel

HEARD: By way of written submissions

OVERVIEW

1Paula Mauricio, the applicant, was involved in an automobile accident on July 21, 2019, 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, Primmum Insurance Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was deemed catastrophically impaired in December 2020 pursuant to Criterion 4 based on sustaining a traumatic brain injury.

PRELIMINARY ISSUE

3The preliminary issue in dispute is:

i. Is the applicant barred from proceeding to a hearing for the following benefits: $1,988.33 for other goods and services, proposed by Mind Connections Inc. in a plan dated September 12, 2023 and $1,649.04 for other goods and services, proposed by Mind Connections Inc. in a plan dated January 8, 2024 because the applicant failed to attend an insurer’s examination under section 44 of the Schedule?

SUBSTANTIVE ISSUES

4The issues in dispute are:

i. Is the applicant entitled to $11,325.99 for other assistive devices, proposed by Access Rehab Inc. in a treatment plan/OCF-18 (“plan”) dated May 18, 2022?

ii. Is the applicant entitled to $8,276.26 for other assistive devices, proposed by Access Rehab Inc. in a plan dated January 4, 2023?

iii. Is the applicant entitled to $1,453.17 for other goods and services, proposed by Access Rehab Inc. in a plan dated August 15, 2022?

iv. Is the applicant entitled to $1,988.33 for other goods and services, proposed by Mind Connections Inc. in a plan dated September 12, 2023?

v. Is the applicant entitled to $1,649.04 for other goods and services, proposed by Mind Connections Inc. in a plan dated January 8, 2024?

vi. Is the applicant entitled to $6,482.81 for physiotherapy services, proposed by First Care Centre in a plan dated May 11, 2022?

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

viii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

5On the preliminary issue I find that:

i. The applicant is barred from proceeding to a hearing before the Tribunal with respect to the September 12, 2023 and January 8, 2024 treatment plans.

6On the substantive issues, I find that:

i. The applicant is not entitled to the treatment plans for assistive devices, other goods and services, or physiotherapy services.

ii. As there are no overdue benefits, the applicant is not entitled to interest.

iii. The applicant is not entitled to an award under section 10 of Regulation 664 because no payments were unreasonably withheld or delayed.

PRELIMINARY ISSUE ANALYSIS

7The preliminary issue is whether the applicant is barred from proceeding with her dispute regarding the September 12, 2023 treatment plan for other goods and services in the amount of $1,988.83, and the January 8, 2024 treatment plan for other goods and services in the amount of $1,649.04, due to her failure to attend insurer examinations (“IEs”) requested under section 44 of the Schedule.

8For the reasons that follow, I find that the applicant is barred from proceeding with her dispute regarding the September 12, 2023 and January 8, 2024 treatment plans due to her failure to attended IEs requested under section 44 of the Schedule.

9Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation. Section 55(1)2 further provides that an insured person may not apply to the Tribunal in respect of a benefit if they fail to attend a section 44 IE, unless they can demonstrate a reasonable explanation for missing the examination.

10The applicant’s submission is silent on the preliminary issue.

11The respondent submits the applicant did not attend for multiple IEs for the September 12, 2023 treatment plan for safety equipment, and for the January 8, 2024 treatment plan for a small engine course. The respondent arranged an occupational therapy IE and orthopaedic IE for the treatment plan for safety equipment and argues the applicant did not attend these IEs and did not provide a reasonable explanation for non-attendance. The respondent relies on the notice of examination dated November 6, 2023, and the letters dated December 13, 2023, and January 23, 2024. The January 23, 2024 letter includes the treatment plan for a small engines course, and that letter also confirms the applicant’s non-attendance for the IEs.

12The respondent further submits that the applicant withdrew the September 12, 2023 treatment plan for safety equipment in an email dated May 22 2024. The applicant did not submit a reply submission in response to this and her submissions are silent on the withdrawal of the treatment plan in the email dated May 22, 2024. In my view, the applicant withdrew this treatment plan by email dated May 22, 2024, however, if I am wrong, I will consider whether the applicant is barred from proceeding with her dispute due to her failure to attend the scheduled IEs.

13I find that the notice of examination for the IEs issued on November 6, 2023, is compliant with the Schedule. The notice was provided in response to the safety equipment in the treatment plan dated September 12, 2023, in the amount of $1,988.33. The notice includes the reason for denial is because other goods and services in sections 15(1)(h) and 16(1)(1) must have the agreement of the insurer as being essential to her treatment. The notice includes the reason for the examination, the name of the orthopaedic surgeon and the occupational therapist who will conduct the examination as well as their credentials. The notice also includes the date, time and location of the assessment, and that the applicant’s attendance is required. The notice was issued more than five business days prior to the IE. This satisfies the notice component in section 44 of the Schedule and therefore is a valid notice.

14The Tribunal has consistently held that the onus rests with the applicant to provide a reasonable explanation for failing to attend a properly scheduled IE. However, the applicant has not provided submissions regarding a reasonable explanation for non-attendance.

15I find the applicant has failed to establish a reasonable explanation for her non-attendance at the scheduled IEs. Pursuant to section 55(1)2 of the Schedule, she is barred from proceeding to a hearing before the Tribunal with respect to the September 12, 2023 and the January 8, 2024 treatment plans.

SUBSTANTIVE ISSUE ANALYSIS

16To receive payment for a treatment and assessment plan under section 15 and16 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 the treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Is the applicant entitled to $11,325.99 for other assistive devices?

17I find the applicant has not met her onus to demonstrate that the treatment plan for assistive devices is reasonable and necessary.

18The applicant made no submissions on what this plan is meant to address, or how the assistive devices would benefit her recovery. The applicant did not direct me to any evidence in support of this treatment plan.

19Given the lack of submissions on this plan, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that this plan is reasonable and necessary as a result of the accident.

Is the applicant entitled to $8,276.26 for other assistive devices?

20I find the applicant is not entitled to the disputed assistive device for $8,276.26.

21The treatment plan dated January 4, 2023 for $8,276.26 for a hot tub was submitted by Meeta Gugnani, occupational therapist. The stated goals include pain reduction, cope with stress from the accident, return to activities of normal living, increase independence in activities of daily living. Progress will be evaluated through subjective and objective reporting. The plan features a hot tub and documentation, support activity. In the Additional Comments the occupational therapist notes “A hot tub is being recommended for … pain management” and that the applicant is experiencing chronic pain in her bilateral ankles, back and neck.

22The applicant submits her occupational therapy team has recommended aqua therapy since 2021, and she benefits from the use of hot tubs for pain management in her left shoulder and neck. The applicant relies on the clinical notes and records (“CNRs”) of Access Rehab that note the “hot tub was approved by the adjuster” and “a treatment plan for the same was sent to the insurer and subsequently declined by the adjuster”. The applicant did not direct me to evidence in support of these notes. The applicant also relies on the Attendant Care Needs Report, dated June 6, 2024, prepared by Melania Parente, occupational therapist. In the Attendant Care Needs Report, under the section titled Assistive Devices and Equipment, the recommended devices include filing system, grab bars, handheld showerhead, and incontinence supplies. The applicant did not direct me to a recommendation for a hot tub.

23The applicant relies on the CNRs of the occupational therapist and the Attendant Care Needs Report. I am not persuaded by the Attendant Care Needs Report because the reference to a hot tub dated June 6, 2024 states she could “re-explore hot tub/pool for therapeutic reasons”, while the CNRs of the occupational therapist state the pool and hot tub at the gym can be used for pain management. In my view, the evidence does not demonstrate that the proposed assistive device is reasonable and necessary or essential for her rehabilitation, and I am not directed to a recommendation for the hot tub.

24The respondent submits the hot tub was denied in a letter dated June 2, 2022 because it is not essential to her ongoing treatment/rehabilitation as contemplated in sections 15(1)(h) and 16(3)(1).

25I find the applicant has not met the burden to show that the proposed assistive device is reasonable and necessary under the Schedule. Also, the applicant did not address whether the cost of the hot tub is reasonable in consideration of the expected benefit and her occupational therapist recommending she utilize the pool and hot tub at the gym for her pain management.

26Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the disputed assistive device.

Is the applicant entitled to $1,453.17 for other goods and services?

27I find the applicant is not entitled to a family gym membership.

28The treatment plan dated August 15, 2022 for $1,453.17 for a family gym membership was submitted by Meeta Gugnani, occupational therapist. The stated goals include pain reduction, increased range of motion, aid in facilitating independence with activities of daily living, return to activities of normal living, return to pre-accident activities of daily living. Progress will be evaluated through a review of proper body mechanics. The plan features a gym membership and documentation, support activity. In the Additional Comments the occupational therapist notes a gym membership is “to work on strengthening and working on her endurance … and we are requesting gym membership for her common law partner because he can assist her in the pool with exercises.”

29The applicant submits she suffered traumatic subarachnoid hemorrhage, injury of carotid artery, multiple fractures of ribs, traumatic pneumothorax, fracture of clavicle, fracture of lower tibia, mild congestive disorder, expressive language disorder, and symptoms of emotional state. The applicant also submits the gym membership is reasonable and necessary and she requires assistance for completing her exercise program. The applicant relies on the OCF-19 dated June 9, 2020, prepared by Dr. Roselynn Krantz, physician, the psychometric report of Dr. Konstantine Zakzanis, neuropsychologist, dated December 3, 2020, and the occupational therapist’s notes.

30The applicant did not direct me to how this benefit is essential to her treatment. While the applicant may benefit from a gym membership for physical activity and the use of a pool and hot tub, I am not persuaded that a gym membership for her family member is reasonable and necessary because the occupational therapists notes the recommendations are not based on specific clinical findings that demonstrate an additional gym membership for her common law partner is essential to her recovery.

31The respondent submits the proposed treatment plan is not reasonable and necessary, and a gym membership for a family member that is not a qualified treatment provider is not a specified medical benefit under section 15(1)(h).

32Accordingly, on a balance of probabilities, I find the applicant is not entitled to a family gym membership.

Is the applicant entitled to $6,482.81 for physiotherapy services?

33I find that the applicant is not entitled to the physiotherapy services.

34The treatment plan dated May 11, 2022 for $6,482.81 includes 25 counts of physical rehabilitation, 12 counts for therapy, multiple body sites, 1 count of Cryoff – cold compression, and 1 assessment. In a letter dated July 25, 2022, the respondent partially approved 12 counts of physical rehabilitation for $1,197.00 and 12 counts of therapy for $698.28.

At issue are the unapproved remaining services that includes the:

Assessment for $200.00

Cryoff cold compression for $3,000.00, and

13 counts of physical rehabilitation for $51.87

35The applicant submits the unapproved physiotherapy services are reasonable and necessary in the circumstances. The applicant relies on the CNRs of First Care Centre; however, I am not directed to entries in the CNRs demonstrating noticeable improvement as a result of the incurred treatment.

36The applicant did not make any submissions about the goals of the physiotherapy treatment, how the progress would be measured, or what benefits the unapproved treatment provides the applicant. The CNRs of First Care Centre reveal the applicant attended physiotherapy sessions between July 12, 2021 and May 18, 2022 and her primary complaints include her neck, back and shoulder pains, with limited complaints of bilateral ankle swelling.

37The respondent submits that the treatment plan was partially approved based on the section 44 orthopaedic assessment dated July 9, 2022, completed by Dr. Oleg Safir, orthopaedic surgeon. Dr. Safir notes the applicant is “advised to engage in a self-directed and at-home exercise program for general maintenance and conditioning purposes as opposed to passive modalities of treatment.”

38I find the applicant has not met her burden to demonstrate the unapproved treatment plan is reasonable and necessary.

39Accordingly, on a balance of probabilities, I find that the applicant is not entitled to the disputed amount of the treatment plan for physiotherapy services.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found no benefits payable, it follows that no benefits were overdue, and no interest is payable.

Award

41The applicant seeks an award under section 10 of Regulation 664. Under section 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 threshold.

42I find no benefits were unreasonably withheld or delayed and therefore an award is not appropriate. As a result, no award is payable.

ORDER

43For the above reasons, it is ordered that:

i. The applicant is barred from proceeding to a hearing before the Tribunal with respect to the September 12, 2023 treatment plan for $1,988.83 and the January 8, 2024 treatment plan for $1,649.04.

ii. The applicant is not entitled to the treatment plans for other assistive devices in the amount of $11,325.99 and $8,276.26, other goods and services in the amount of $1,453.17, or physiotherapy services in the amount of $6,482.81.

iii. The applicant is not entitled to interest or an award.

44The application is dismissed.