Licence Appeal Tribunal File Number: 24-008299/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:
Sarah Harmer
Applicant
and
Traders General Insurance Company*
Respondent
DECISION
ADJUDICATOR: Gary Marshall
APPEARANCES:
For the Applicant: Sherilyn Pickering, Counsel
For the Respondent: Natalie Spinelli, Paralegal
HEARD: By way of written submissions
OVERVIEW
1Sarah Harmer, the applicant, was involved in an automobile accident on March 20, 2022, 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, Traders 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 $280.52 for osteopathic services, proposed by Health Partners Professionals in a treatment plan/OCF-18 (“plan”) submitted November 3, 2022? Note: The applicant withdrew its appeal of the rate for the massage therapist and therefore I have adjusted the amount in dispute in the list of issues.
ii. Is the applicant entitled to $2,110.05 for chiropractic services, proposed by Health Partners Professionals in a plan submitted November 9, 2023?
iii. Is the applicant entitled to $3,509.99 for chiropractic services, proposed by Health Partners Professionals in a plan submitted May 31, 2024?
iv. Is the applicant entitled to $1,796.02 for occupational therapy services, proposed by Functionability Rehabilitation Services in a plan submitted June 3, 2023?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to $280.52 for osteopathic services, proposed by Health Partners Professionals in a treatment plan submitted November 3, 2022.
4The applicant is not entitled to $2,110.05 for chiropractic services, proposed by Health Partners Professionals in a plan submitted November 9, 2023.
5The applicant is not entitled to $3,509.99 for chiropractic services, proposed by Health Partners Professionals in a plan submitted May 31, 2024.
6The applicant is not entitled to $1,796.02 for occupational therapy services, proposed by Functionability Rehabilitation Services in a plan submitted June 3, 2023.
7The respondent is not required to pay an award.
8The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
Is the applicant entitled to massage therapy in the amount of $280.52, submitted in an OCF-18 by Health Partners Professional dated November 3, 2022.
9I find that the applicant is entitled to an $80.00 per hour rate for the four sessions of osteopathic therapy recommended in the treatment plan dated November 3, 2022.
10The applicant submits that the respondent denied the hourly rate sought of $128.32 per hour and alleged that the maximum payable rate for osteopathic treatment is $58.19 per hour. She submits that this is false. The Professional Service Guideline sets out maximum rates for specific types of providers, including physiotherapists, massage therapists, psychometrists, case managers, etcetera. It does not provide a maximum rate for osteopaths. Any services provided by health care professionals/providers, unregulated providers, and other occupations not listed in the Guideline are not covered by the Guideline and the rate payable are to be determined by the parties involved or by the Tribunal.
11The applicant also referenced Ossipova v BelairDirect Insurance Company, 2023 CanLII 40135 (ON LAT), where Vice Chair Todd held that simply because osteopaths are not on the list set out by the Guideline does not necessitate that it be relegated to the lowest rate of compensation and that osteopaths ought to receive a higher hourly rate akin to chiropractors and physiotherapists. In Ossipova, the evidence was that the National Academy of Osteopathy (Canada) recommended an hourly rate of $80.00 per hour. The applicant further submits that The National Academy of Osteopathy website indicates that the majority of osteopaths are charging $140.00 per hour in Canada and acknowledges the issue of the $59.18 per hour as prohibitive to osteopaths actually treating patients who were in motor vehicle accidents. Thus, the applicant argues that this misinterpretation and misapplication of the Guidelines is in fact preventing insureds from receiving treatment that is in fact reasonable and necessary, contrary to the consumer protection principles of the Schedule.
12The applicant also highlighted the qualifications of the treating osteopath Byron Curtis. He has multiple designations, including a Certified Athletic Specialist, Registered Massage Therapist, and Osteopathic Manual Practitioner. He has a degree in kinesiology before undertaking a 5-year program at the Canadian College of Osteopathy, which included a thesis. If he were a massage therapist or only a kinesiologist, he would be entitled to $58.19 per hour; however, he has additional training and credentials of also being an osteopath. He has a total level of education in excess of that required for a chiropractor or a physiotherapist (an undergraduate plus a 4-year Doctor of Chiropractor program or a 2-year Master of Science in Physical Therapy), and he uses treatment modalities akin to a physiotherapist or chiropractor to treat his patients. The applicant argues that the rate sought is reasonable in light of the recommendation by the National Academy of Osteopath, the caselaw, and the experience of Byron Curtis.
13The respondent argues that Mr. Curtis is an unregulated health professional which would fall under the unregulated health professional under the Professional Services Guideline, which states that the maximum hourly rate unregistered health professional can charge for treatment of non-catastrophic impairments is $58.19. The respondent further submits that Section 15(2) of the Schedule states that an insurer is not liable to pay for any medical benefits that exceed the maximum rate or amount, or expenses established under the Guidelines. As Osteopaths are not indicated in the Guidelines, it is the respondent’s position that the hourly rate of this type of healthcare provider is negotiable. Finally, the respondent argues that the background information of Bryon Curtis is used in Canada for practitioners who are not medical doctors but are trained in manual osteopathic techniques.
14I agree with the applicant. I am persuaded by the rationale in Ossipova, that the National Academy of Osteopathy (Canada) recommended an hourly rate of $80.00 per hour. I agree with the assertion in Ossipova that while Osteopaths are not included in the list of medical service providers in the Guideline, that does necessitate that they be relegated to the lowest rate of hourly compensation. The applicant is entitled to an $80.00 per hour rate, or $280.52, for the four sessions of osteopathic therapy recommended in this treatment plan dated November 3, 2022. The total that the applicant is entitled to is $280.52. plus, taxes and interest as applicable.
Is the applicant entitled to the chiropractic treatments in the amount of $2,110.05, submitted in an OCF-18 by Health Partners Professional dated November 9, 2023; and $3,509.99, submitted May 31, 2024.
15I find that the applicant is not entitled to the chiropractic treatment in the amount of $2,110.05 submitted on November 9, 2023, and $3,509.99 submitted on May 31, 2024.
16The applicant submits that the OCF-18 dated November 9, 2023, was for 16 sessions of chiropractic treatment and 12 sessions of massage therapy. The goals of treatment were to reduce pain, increase range of motion, and increase strength so as to achieve a return to activities of normal living and pre-MVA work activities. The OCF-18 dated May 31, 2024, was for 12 sessions of chiropractic treatment, 12 sessions of massage therapy, and a king size mattress. The goals of treatment were to reduce pain, increase strength, and increase range of motion so as to achieve a return to activities of normal living and return to pre-MVA work activities. It was noted that the applicant had demonstrated improvement with ongoing care but regressed without treatment.
17The disability questionnaires demonstrate that while the applicant was undergoing regular treatment, she was improving in select areas. In February 2023, she had moderate impairment (4) of vision problems and moderate impairments (3) of headaches, balance, and fatigue; mild impairments (2) of sleeping less. By July 2023, she had improved in respect of vision problems (moderate score of 4 reduced to mild score of 2), headaches (moderate score of 3 reduced to mild score of 2), balance (moderate score of 3 reduced to mild score of 1), and fatigue (moderate score of 3 reduced to 2). In February 2023, the applicant scored a 5 out of 24 on the Roland-Morris Low Back Pain and Disability Questionnaire, receiving points for frequently changing position to get her back comfortable, needing other people to do things for her, hurting almost all of the time, sleeping less well because of her back, and avoiding heavy jobs around the house due to her back. Her pain was rated as a 6.5 out of 10. By July 2023, she scores a 3, showing improvement in her need to change positions, need for other people to do things for her, and her sleep.
18The applicant submits that all of the questionnaires and clinical notes demonstrated that the applicant has sleep impairments arising from the MVA. An assistive device in the form of a mattress would help to reduce her pain while sleeping and the impact of her impairments on her sleep. The OCF-18’s goals were reasonable and necessary. The progress that was being made is reasonable. The pause in treatment showed deterioration. There is no reasonable alternative.
19The respondent submits that the applicant is not entitled to the treatment plans in dispute on the basis that they were all properly assessed and denied as being not reasonable and necessary for treatment of the applicant’s accident-related injuries. The respondent relies on the section 44 Insurer’s Musculoskeletal Assessment by Family Physician, Dr. Pankaj Bansal, dated March 12, 2024, where Dr. Bansal concluded that the applicant had sustained uncomplicated self-resolving soft tissue type injuries involving her neck and back. It was noted the applicant’s examination contained no valid signs of a musculoskeletal, orthopedic or neurological injury. As such, the applicant does not suffer from a physical impairment in relation to the subject accident. Further, Dr. Bansal noted that these injuries would have long since healed as the accident was two years prior.
20The respondent further relies on the Musculoskeletal Paper Review of Dr. Bansal dated July 4, 2024, which addressed the treatment plan in the amount of $3,509.99. Dr. Bansal based his opinion on the medical documentation supplied by the applicant and his direct assessment of the applicant which took place in February 2024. In this report, Dr. Bansal reiterated his findings made previously concluding the treatment plan was not reasonable and necessary as the applicant does not suffer from a functional impairment and maximum medical improvement had been reached. It is the respondent’s position that the applicant has not provided any medical evidence to support that a king size bed is reasonably required for her accident-related injuries.
21Given the evidence before me, I am persuaded by the medical evidence presented by the respondent that the above treatment plans are not reasonable or necessary. I put weight on the opinion of Dr. Bansal that the injuries would have long since healed as the accident was two years prior because Dr. Bansal conducted a thorough examination two years post accident and found that the applicant had sustained uncomplicated self-resolving soft tissue injuries involving her neck and back. Furthermore, the Musculoskeletal Paper Review of Dr. Bansal dated July 4, 2024, further reiterated his previous findings that the applicant does not suffer from a functional impairment and MMI had been reached. I find that the applicant has not presented contemporaneous objective corroborating medical evidence to support that the treatment plans and the mattress as reasonable and necessary.
22Therefore, on a balance of probabilities I find that the applicant is not entitled to the disputed $2,110.05 and $3,509.99 for chiropractic treatments and a king-sized mattress.
Is the applicant entitled to the occupational therapy assessment in the amount of $1,796.02, submitted in an OCF-18 by FunctionAbility Rehabilitation Services dated June 3, 2023?
23I find that the applicant is not entitled to the occupational therapy assessment in the amount of $1,796.02 submitted on June 3, 2023.
24The applicant submits that the OCF-18 dated June 3, 2023, was for an in-home assessment to evaluate the applicant’s safety; her physical, psychosocial, and cognitive functioning; and her functioning in self-care, productivity, and leisure. The initial assessment was required to initiate an occupational therapy program, with future treatment addressing functional goals, increasing the applicant’s safety, and increasing her activity levels and participation in the community. An initial screening telephone call with the applicant revealed that she was continuing to struggle with back pain increasing with activity, constant neck pain, tense muscles, noise and light sensitivity, hearing issues, poor balance, headaches, vision changes affecting her ability to use screens or read, blurry vision, cognitive changes, social isolation, nervousness in vehicles, low mood, and mood changes. As a result, she had pain when lifting and carrying. She had problems with sleep. She had returned to work, but had to modify many of her job duties, including avoiding reading, taking frequent breaks from the screen, and taking rest breaks. The assessment was to determine the applicant’s level of participation in daily activities pre- and post-MVA, identify the equipment and supports required to ensure her safety, identify barriers to return to activities, identify occupational therapy specific goals related to function (i.e. education on symptoms, recovery, and self-management techniques, safe and gradual return to activities, and cognitive assessment and rehabilitation). Finally, the applicant submits that the OCF-18 warned that if she does not receive occupational therapy, she is at risk of delayed recovery, further injury and deterioration, inactivity, weakness, and the development of chronic symptoms.
25The applicant also argues that the respondent denied the OCF-18 and conducted their own in-home occupational therapy assessment by Occupational Therapist Shoabana Kugathasan. The applicant submits that based upon the totality of the impairments, it was possible that the applicant had impairments in the areas that the proposed assessment sought to assess and that it ought to be examined further. The applicant further submits that even the respondent thought it was reasonable and necessary to assess these areas of impairments, conducting their own in-home assessment. Finally, the applicant submits that the caselaw is clear that the fact that the respondent conducted their own matching assessment demonstrated its belief that such as assessment was warranted.
26The respondent relies on the section 44 Insurer’s Occupational Therapy Assessment report by Shoabana Kugathasan dated August 17, 2023. During this assessment, the applicant demonstrated functional range of motion and physical abilities to complete her daily tasks despite her reported bodily pain. With respect to cognitive functioning, the applicant was observed to attend, follow instructions, listen and respond to questions appropriately. The applicant was administered a MOCA test where she scored 28/30 indicating normal cognitive function. Ms. Kugathasan concluded that the applicant does not require an occupational therapy assessment as she has resumed the majority of her daily tasks and there was no safety concerns identified during the assessment that would warrant any occupational therapy intervention.
27The respondent further submits that while the applicant reported pain and post-concussive symptoms, these were not corroborated by functional limitations during the assessment. The assessor noted that the applicant was able to complete all physical tasks, including squatting, kneeling and lifting light objects, her reported pain did not prevent her from completing these tasks. It is the respondent’s position that the applicant’s use of pacing, rest breaks, and task modification is not unusual in post-accident recovery and does not justify an OT assessment. These strategies demonstrate self-management and adaptation, not dysfunction. It is the respondent’s position that the applicant has not met her onus that she requires occupational therapy assistance in any capacity which would warrant an assessment for treatment planning. Finally, the respondent submits that the presence of subjective pain complaints alone, without corresponding functional impairment, does not meet the threshold for a reasonable and necessary assessment per the Schedule.
28Given the evidence before me, I am more persuaded by the evidence of the respondent’s section 44 occupational therapy assessment report conducted by occupational therapist Shoabana Kugathasan as it involved objective medical testing that found normal cognitive functioning. I am persuaded by the prognosis of Ms. Kugathasan which concluded that the applicant does not require an occupational therapy assessment as she has resumed the majority of her daily tasks and there was no safety concerns identified during the assessment that would warrant any occupational therapy intervention. I do not find that the applicant has produced contemporaneous medical evidence that supported a finding that there are grounds to conclude the applicant has an accident-related condition that warrants further investigation by way of an occupational therapy assessment.
29Therefore, on a balance of probabilities I find that the applicant is not entitled to the disputed $1,796.02 for an occupational therapy assessment.
Interest
30The applicant is entitled to interest on the reduced rate for osteopath pursuant to s. 51 of the Schedule.
Award
31The 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 applicant must prove, on a balance of probabilities, that the respondent’s conduct was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” to justify and award under s. 10. While there was a dispute over the rate for the osteopathic treatments, I do find that the respondent was flexible and agreed to the $80.00 per hour rate as stated by The National Academy of Osteopathy (Canada). The applicant is not entitled to an award, because I find the insurer has not unreasonably withheld or delayed the payment of benefits.
ORDER
32For the reasons outlined above, I find:
i. The applicant is entitled to $280.52 for osteopathic services for osteopathic services, proposed by Health Partners Professionals in a treatment plan submitted November 3, 2022.
ii. The applicant is not entitled to $2,110.05 for chiropractic services, proposed by Health Partners Professionals in a plan submitted November 9, 2023?
iii. The applicant is not entitled to $3,509.99 for chiropractic services, proposed by Health Partners Professionals in a plan submitted May 31, 2024.
iv. The applicant is not entitled to $1,796.02 for occupational therapy services, proposed by Functionability Rehabilitation Services in a plan submitted June 3, 2023.
v. The respondent is not required to pay an award.
vi. The applicant is entitled to interest on the reduced rate for osteopath benefits.
Released: April 14, 2026
Gary Marshall
Adjudicator