Mitchell v. TD General Insurance Company, 2026 CanLII 59514

Licence Appeal Tribunal

Citation: Mitchell v. TD General Insurance Company, 2026 CanLII 59514

Licence Appeal Tribunal File Number: 24-014892/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:

Tracey Mitchell

Applicant

and

TD General Insurance Company

Respondent

DECISION

VICE-CHAIR: Robert Maich

APPEARANCES:

For the Applicant: Anna Szczurko, Counsel

For the Respondent: Deedra-Ann Lake, Counsel

HEARD: In Writing

OVERVIEW

1Tracey Mitchell, the applicant, was involved in an automobile accident on January 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant’s vehicle was stopped in a line of vehicles waiting for a school bus to proceed through a railway crossing. The third vehicle struck another vehicle at near highway speed, forcing that vehicle into the rear of applicant’s car. The applicant attended at St. Mary’s Memorial Hospital where medical testing was conducted on the day of the accident.

PRELIMINARY ISSUES

3Preliminary Issues: The preliminary issue to be decided is:

1. Is the applicant barred from proceeding to a hearing for issues 1 and 2 by the doctrine of res judicata?

4The respondent submits the applicant previously brought the treatment plans in dispute described as issues [8]1 and 2 before the Tribunal in matter No. 23-002192/AABS. The respondent submits the Tribunal found the applicant was entitled to the treatment plans in dispute and confirmed the decision on reconsideration. The respondent subsequently appealed to the Ontario Superior Court of Justice, Divisional Court on limited grounds in respect to the permitted hourly rates of the services providers for the treatment plans in dispute.

5The respondent submits that because the treatment plans in dispute were previously before the Tribunal and decided upon, res judicata applies.

6The applicant made no specific written submissions in respect to the treatment plans in dispute described as issues [8]1 and 2, nor a rebuttal in her reply submissions. I note the applicant describes the issues in dispute by reference to the case conference report and order (“CCRO”) dated April 10, 2025 however only specifically lists the OCF-6’s listed as issues [8]3, 4 and 5.

7I find that the issues in dispute described in paragraphs [8]1 and 2 were previously before the Tribunal and res judicata applies. The applicant may not proceed on issues [8]1 and 2.

SUBSTANTIVE ISSUES

8The substantive issues in dispute are:

1. Is the applicant entitled to $1,796.00 for physiotherapy services, proposed by Peter Hartley in a treatment plan/OCF-18 (“plan”) dated December 7, 2023?

2. Is the applicant entitled to $1,515.17 for physiotherapy services, proposed by Brenda Enns in a treatment plan dated December 22, 2023?

3. Is the applicant entitled to $1,910.00 for massage treatment, submitted on a claim form (OCF-6) dated November 14, 2024?

4. Is the applicant entitled to $1,640.00 for osteopathic services, massage and personal training, submitted on a claim form (OCF-6) dated November 21, 2024?

5. Is the applicant entitled to $140.00 for osteopathic services, submitted on a claim form (OCF-6) dated December 5, 2024?

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

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

RESULT

9The applicant may not proceed on $1,796.00 for physiotherapy services, proposed by Peter Hartley in a treatment plan dated December 7, 2023, by the doctrine of res judicata.

10The applicant may not proceed on $1,515.17 for physiotherapy services, proposed by Brenda Enns in a treatment plan dated December 22, 2023, by the doctrine of res judicata.

11The applicant is entitled to $1,571.13 pursuant to the OCF-6 dated November 14, 2024.

12The applicant is entitled to $346.20 pursuant to the OCF-6 dated November 21, 2024.

13The applicant is not entitled to $140.00 pursuant to the OCF-6 dated December 5, 2024.

14The respondent is liable to pay an award under s. 10 of Reg. 664 in the amount of $86.55 plus interest pursuant to s. 51 of the Schedule and interest in accordance with interest under s.10 of Reg. 664 as prescribed, because it unreasonably withheld or delayed payments to the applicant due pursuant to the OCF-6 dated November 21, 2024.

15The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

Legal Test

16Pursuant to section 15 of the Schedule, the respondent is liable to pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident. It is the applicant’s responsibility to prove the medical benefits claimed are reasonable and necessary on a balance of probabilities.

OCF-6s Relating to Massage, Osteopathic and Personal Training Services

17The applicant is entitled to the following benefits claim on an OCF-6:

(a) $1,571.13 of $1,910.00 submitted for massage treatment dated November 14, 2024;

(b) $346.20 of $1,640.00 submitted for osteopathic services, massage and personal training, dated November 21, 2024.

(a) $1,571.13 of $1,910.00 submitted for massage treatment dated November 14, 2024

18The OCF-6 dated November 14, 2024 in the amount of $1910.00 comprises of personal training services of $600.00 osteopathic treatment of $680.00, and massage therapy services of $620.00. The applicant submits that massage therapy is reasonable and necessary and relies upon the recommendations of Miriam Mclean, physiotherapist, as detailed in the OCF-18 dated November 26, 2020. In addition the applicant submits the types of treatments included are reasonable and necessary as per the recommendations for osteopathic services and massage by her physician Dr. Papukna in his clinical notes and records and the recommendation of Cassandra Colley, registered massage therapist who opined consistency of treatment was critical for the applicant’s recovery as detailed in her progress report dated February 10, 2024.

19The respondent submits the OCF-6 for $1910.00 comprises of medical benefits that were not submitted pursuant to any OCF-18 and the applicant is not in compliance with s. 38(2) of the Schedule. Accordingly, the respondent submits it is not a payable benefit as there is no prior approval of the expense, nor does it fit within an exemption identified pursuant to s. 38(2). In the further alternative the respondent submits that the compensated rate must be capped at $58.19 per hour as per the Professional Services Guideline (“PSG”).

20In reply, the applicant submits that the Tribunal has the discretion to require insurers to pay expenses submitted in an OCF-6 without evidence of an associated OCF-18. The applicant relies upon Cargnelli v Aviva Insurance Company, 2021 CanLII 55275 (ON LAT) at paras 16-17, where the Tribunal found that it would have been reasonable and necessary to address an applicant’s ongoing pain complaints during period of the denial as pain reduction is a legitimate goal for treatment, consequently the OCF-6 was sufficient without an approved OCF-18. I note that the applicant made this submission specifically in respect to the OCF-6 dated November 14, 2024 for $1910.00 comprising of massage therapy services of $620.00, personal training services of $600.00 and osteopathic treatment of $680.00, at varying rates over 27 sessions of approximately one hour duration.

21I find the applicant’s submissions to be persuasive that the treatments contained in the OCF-6 for symptoms relief are payable during the period of treatment denial despite the absence of a corresponding OCF-18 as found in Cargnelli v Aviva Insurance Company. I also find the respondent’s submissions that the treatments contained in the OCF-6 were not approved and subject to the PSG prescribed rate of $58.19 per hour. Given my previous finding that the OCF-6 was for approximately 27 hours of services, I calculate the amount payable under the OCF-6 dated November 14, 2024 to be 27 hours x $58.19 for the sum of $1,571.13.

22I find the applicant is entitled to $1571.13 pursuant to the OCF-6 dated November 14, 2024.

(b) $346.20 of $1,640.00 submitted for osteopathic services, massage and personal training, dated November 21, 2024

23The applicant submits that the OCF-6 for $1,640 dated November 21, 2024 was submitted under an earlier approved treatment plan for $1,700.00 dated November 26, 2020, some four years earlier. The applicant submits the types of treatments included are reasonable and necessary as per the recommendations for osteopathic services and massage by her physician Dr. Papukna in his clinical notes and records (“CNR”) dated January 22, 2020, and the recommendation of Cassandra Colley, registered massage therapist who opined consistency of treatment was critical for the applicant’s recovery as detailed in her progress report dated February 10, 2024, as well as personal training recommended by Emman Vaillancourt, registered physical therapist, for the goals of improving her overall strength and function.

24The applicant also submits the approved treatment plan dated November 26, 2020 was for $1700.00 with only $713.80 expended. Further the applicant submits the approved treatment plan was broadly worded with the term “physician rehabilitation” at approved rates between $80.00/hr and $99.75/hr. Accordingly, the applicant submits funding for the OCF-6 is available from the balance remaining available under the OCF-18 dated November 26, 2020.

25The respondent submits that the applicant failed to disclose the OCF-18 dated November 26, 2020 related to the OCF-6 no later than 45 days after the case conference as provided for by the CCRO; accordingly, the applicant should be barred from relying upon the OCF-18 of November 26, 2020. In the alternative the respondent submits that $640 for 8 sessions of osteopathy was paid to the applicant on July 18, 2024 of the benefit claimed in the OCF-6. In the further alternative, the respondent submits that the rate quoted within the OCF-18 exceeds the maximum amount as prescribed under s.15(2)(b) of the Schedule.

26I find that the respondent had possession of the OCF-18 dated November 26, 2020 for approximately 5 years and it would be an absurdity to order its exclusion on the basis of non-disclosure. I further find that the respondent had paid $640.00 on July 18, 2024 for services under the OCF-18 dated November 26, 2020. I also find that the respondent previously approved the OCF-18 dated November 26, 2020 and may not, years later, rescind its approval of the quoted rate.

27I find that of the $1700.00 approved in the OCF-18 dated November 26, 2020, that a previous sum of $713.80 had been paid by the respondent under the plan; in addition I find that $640.00 paid July 18, 2024 was also paid out the available funds in the OCF-18 dated November 26, 2020 leaving a balance of $346.20 available in the plan.

28I also find that the OCF-6 for $1640.00 dated November 21, 2024 is payable for services submitted under the OCF-18 dated November 26, 2020; however, I also find the balance available under the OCF-18 dated November 26, 2020 is only $346.20. I find the OCF-6 for $1640.00 dated November 21, 2024 can only be funded up to the available balance of $346.20 in the OCF-18 dated November 26, 2020. Accordingly, I conclude $346.20 is due to the applicant from the respondent in respect to the claimed OCF-6 for $1640.00 dated November 21, 2024.

OCF-6 of $140.00 for osteopathic services dated December 5, 2024

29I find as the OCF-18 dated November 26, 2020 has now been exhausted, it is not necessary to consider the OCF-6 dated December 5, 2024 also claimed pursuant to the OCF-18 dated November 26, 2020.

Interest

30The applicant is entitled to interest on the payment of any overdue benefits 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.

32The applicant submits that the respondent withheld the payment of benefits in dispute despite the medical evidence supported the claimed expenses and the respondent was aware that the applicant’s family doctor recommended that she continue to receive physiotherapy and massage therapy for her accident-related injuries; her treating physiotherapist reported improvements in her pain symptoms with physiotherapy and massage therapy supports; she continues to experience pain from her injuries; and she reported improvement in her pain symptoms following osteopathy adjustments.

33In addition, the applicant submits the respondent’s experts opined that the applicant required continued physical therapy, massage therapy, osteopathy, and other interventions supporting the reasonableness and necessity of the benefits demonstrating rigidity as an aggravating factor. The applicant submits the award should be at the upper range.

34The respondent submits that its conduct does not warrant an award as it cannot be described as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate; nor should an insurer be held to a standard of perfection, but rather, it should be held to a standard of reasonableness.

35I find that the respondent’s conduct cannot be found to be unreasonable in respect to the OCF-6 dated November 14, 2024 as the finding was made payable upon application of Cargnelli v Aviva Insurance Company and the respondent had relied upon the exception of s.38(2) of the Schedule. I find an insurer cannot be liable for an award in circumstances where it had a reasonable legal position for the denial.

36I find that the respondent’s conduct was unreasonable, stubborn and inflexible in its adjusting of the OCF-6 dated November 21, 2024 as it was in possession of medical evidence confirming it was reasonable and necessary since the date it was submitted, yet the insurer refused to re-adjust the file and breached its duty to do so. Accordingly, I find the insurer liable for a sum representing 25% of the amount awarded pursuant to the OCF-6 dated November 21, 2024. I find the lower end of award is appropriate given the corresponding OCF-18 was filed November 21, 2020 and may not have been readily apparent to the respondent.

37I find the respondent liable to pay an award under s. 10 of Reg. 664 in the amount of $86.55 plus interest pursuant to s. 51 of the Schedule and interest under s.10 of Reg. 664 as prescribed, because it unreasonably withheld or delayed payments to the applicant due pursuant to the OCF-6 dated November 21, 2024.

ORDER

38The Tribunal’s final Orders:

i. The applicant may not proceed on $1,796.00 for physiotherapy services, proposed by Peter Hartley in a treatment plan dated December 7, 2023, by the doctrine of res judicata.

ii. The applicant may not proceed on $1,515.17 for physiotherapy services, proposed by Brenda Enns in a treatment plan dated December 22, 2023, by the doctrine of res judicata.

iii. The applicant is entitled to $1,571.13 pursuant to the OCF-6 dated November 14, 2024.

iv. The applicant is entitled to $346.20 pursuant to the OCF-6 dated November 21, 2024.

v. The applicant is not entitled to $140.00 pursuant to the OCF-6 dated December 5, 2024.

vi. The respondent is liable to pay an award under s. 10 of Reg. 664 in the amount of $86.55 plus interest pursuant to s. 51 of the Schedule and interest in accordance with s.10 of Reg. 664 as prescribed, because it unreasonably withheld or delayed payments to the applicant due pursuant to the OCF-6 dated November 21, 2024.