Tribunal File Number: 17-000851/AABS & 17-000911/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

R.D.

Applicant

And

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: S.F. Mather

APPEARANCES:

R. Seredynski and M. Barber, Counsel for the Applicant

L. Furukawa, Counsel for the Respondent

Heard in Person: April 10, 11, June 4, 5, 7, 2018, at Toronto

Heard in Writing: July 9, 2018

OVERVIEW

1R. D. (the applicant) was involved in motor vehicle accidents on October 21, 2014 (Accident #1) and October 29, 2014 (Accident #2) and sought various benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the Schedule) from Aviva Insurance Company (Aviva).

2Application 17-000851 pertains to benefits claimed for Accident #1 and Application 17-000911 pertains to benefit claims for Accident #2. The parties agreed that the applications be heard together and that the evidence submitted applies to both applications.

3Aviva denies all of the treatment and assessment plans (“treatment plans”) in dispute on the basis that they are not reasonable and necessary. The applicant accuses the respondent of unreasonably withholding and delaying payment of the benefits and asks me to order the respondent to pay a lump sum award for its improper conduct.

4Following two case conferences² and a written preliminary issue hearing the parties were unable to resolve their dispute and the applications were scheduled for a two day in-person hearing commencing on April 10, 2018.

Three days were added to the hearing schedule on April 10, 2018. At the request of the parties and due to hearing time constraints final submissions were made in writing after the evidence was heard.

ISSUES

5The issues before me are:

Accident #1

1. Is the applicant entitled to payment in the amount of $2,000.00 for psychological services as set out in a treatment and assessment plan by Dr. Levinson of Canadian Active Rehabilitation dated February 23, 2015, denied by the respondent on March 6, 2015?

2. Is the applicant entitled to payment in the amount of $1,014.35 for occupational therapy services as set out in a treatment and assessment plan dated March 9, 2015 by Carol Bierbrier & Associates, denied by the respondent on March 20, 2015?

3. Is the applicant entitled to payment in the amount of $2,230.58 for a work hardening program as set out in a treatment and assessment plan dated April 13, 2016 by Canadian Active Rehabilitation, denied by the respondent on April 21, 2016?

4. Is the applicant entitled to payment in the amount of $1,496.75 for an occupational therapy assessment, as set out in a treatment and assessment plan dated February 9, 2015, denied by the respondent on February 23, 2015?

Accident #2

1. Is the applicant entitled to payment for the following assessments recommended by Dr. H. Lad:

a. $2,200.00 for a vocational assessment as set out in a treatment and assessment plan dated July 26, 2016, denied by the respondent on August 29, 2016;

b. $2,070.00 for a neurocognitive assessment as set out in a treatment and assessment plan dated July 26, 2016, denied by the respondent on August 29, 2016; and

c. $2,070.00 for a psychological assessment as set out in a treatment and assessment plan dated July 26, 2016, denied by the respondent on August 29, 2016?

2. Is the applicant entitled to payment for chiropractic treatment by Dr. Sachedina and Dr. Bourassa as set out in a treatment plan dated August 11, 2016 in the amount of $4, 391.12, denied by the respondent on October 28, 2016?

3. Is the applicant entitled to payment in the amount of $14, 141.80 for chiropractic services as set out in a treatment and assessment plan by Dr. Goldhawk of Ontario Independent Medical Evaluation Centre, denied by the respondent on December 28, 2016?

4. Is the applicant entitled to payment for the following assessments recommended by Dr. Goldhawk of Ontario Independent Medical Evaluation Centre:

a. $2,200.00 for a psychological assessment as set out in a treatment and assessment plan dated December 15, 2016, denied by the respondent on December 28, 2016;

b. $2,200.00 for a functional abilities evaluation as set out in a treatment and assessment plan dated December 15, 2016, denied by the respondent on December 28, 2016; and

c. $2,200.00 for a chronic pain assessment as set out in a treatment and assessment plan dated December 15, 2016, denied by the respondent on December 28, 2016?

Both Accidents

1. Is the applicant entitled to interest for the overdue payment of benefits?

2. Is the respondent liable to pay an award pursuant to s.10 RRO 1990 Reg.664, because it unreasonably withheld or delayed payments to the applicant?

3. Is the applicant entitled to costs?

RESULT

6I find that:

1. Aviva shall pay the following benefits:

Accident #1

a. $1,496.75 for an occupational therapy assessment, as set out in a treatment and assessment plan³ dated February 9, 2015, denied by the respondent on February 23, 2015.

b. $1,014.35 for occupational therapy services as set out in a treatment and assessment plan dated March 9, 2015 by Carol Bierbrier & Associates, denied by the respondent on March 20, 2015.

Accident #2

a. $2,070.00 for a psychological assessment as set out in a treatment and assessment plan by Dr. Lad dated July 26, 2016, denied by the respondent on August 29, 2016

2. Aviva shall pay interest on the benefits payable in accordance with the

Schedule.

3. All other benefits claimed by the applicant in these applications are denied.

4. The applicant’s claim for a lump sum award on the benefits I have found payable is denied.

5. The applicant’s claim for Costs is denied.

PRELIMINARY MATTERS

7A motion filed by the applicant on March 29, 2018 was scheduled to be heard by me on April 10, 2018 before the start of the hearing. Several preliminary procedural issues were also raised by the parties.

8I heard the motion and the arguments of the parties with respect to the preliminary procedural issues and delivered my decision orally. The preliminary matters took up the first morning of the hearing.

Motion

9The Notice of Motion filed by the applicant asked for an order that:

1. Any and all Aviva adjusters who handled the applicant’s file be made available at the hearing for the purposes of cross-examination in order to prove his claim award for a lump sum award.

2. Two denied treatment and assessment plans (treatment plans) be added to the issues to be determine at the hearing.

Summonses to Adjusters

10Rule 9.1(b) of the Licence Appeal Tribunal Rules of Practice and Procedure (“LAT Rules”)⁴ requires a party to disclose a list of witnesses whom the party may call to give evidence at the hearing at least ten days before the hearing, or at any other time ordered by the Tribunal or undertaken by the party.

11Rule 9.4 provides that if a party fails to comply with the LAT Rules or Orders with respect to lists of witnesses that party may not call the witnesses to give evidence, without the consent of the Tribunal.

12Rule 8.1 allows the Tribunal to issue a summons to a witness on its own initiative or at the request of a party. Rule 9.4

13Aviva objected to the request by the applicant for a summons for the adjuster, Andrew Ferguson arguing that Mr. Ferguson’s name was absent from the witness lists set out in letters to Aviva dated November 9, 2017 and March 12,

2018.⁵ Aviva submits that the applicant did not provide any notice of its intention to call Mr. Ferguson prior to writing him on March 22, 2018⁶. Aviva also argued that the voluminous correspondent on the file and the log notes disclosed by Aviva were adequate for the applicant to prove its claim for a lump sum award.

14I allowed the applicant to summons the Aviva adjuster, Andrew Ferguson to give evidence at the hearing being satisfied that it would be extremely prejudicial to the applicant to proceed with its claim for a lump sum award without the evidence of the adjuster.

15Aviva was well aware of the applicant’s desire to examine the adjuster. While the witness lists set out in the November 9, 2017 and March 12, 2018 letters do not specifically include the adjuster the applicant made it clear in both letters that it wanted to examine the adjuster and asked Aviva if it was intending to call the adjuster. I find Aviva’s statement in its response that the applicant did not provide any notice of its intention to call Mr. Ferguson until March 22, 2018 to be misleading because Aviva does not recognize the inquiries made by the applicant in both the November 9, 2017 and March 12, 2018 letters.

16The applicant’s motion material demonstrates to me that the applicant did not know how to go about ensuring that the adjuster was available to be examined at the hearing. The proper course of action would have been for the applicant to have included the adjuster on its witness list at the case conference so that the applicant did not have to rely on Aviva to produce him.

17I was satisfied that any prejudice to Aviva would be cured by the adjournment of the hearing after the first two days to a date when the adjuster would be available. These applications were scheduled for a full in-person hearing and in my view it would be a denial of natural justice to deny the applicant the opportunity to examine the adjuster whose actions/decisions are central to the claim for a lump sum award.

18I was not satisfied that it was necessary for the applicant to summons more than one representative from Aviva to provide evidence at the hearing.

19The Notice of Motion was not specific with respect to the adjuster(s) that the applicant was asking for summonses for. At the hearing the applicant requested summonses for Karen Brandt and Andrew Ferguson. The position of Aviva was that Mr. Ferguson was not available and the applicant had not shown that Ms. Brandt (who was in attendance at the hearing) had any involvement in the adjustment of the file. The LAT Rules require that a Notice of Motion shall provide evidence in support of the motion. The applicant provided no evidence to support an order that a summons be issued for Ms.

Brandt.

Treatment Plans

20The Notice of Motion asks me to add two denied treatment plans to the issues in dispute to be heard at the hearing. Aviva’s response to the motion points out that the plan by Alyssa Bierbrier was already an issue in the hearing.

21At the hearing the applicant amended his motion and asked to me add the following treatment places to the issues in dispute:

i. Treatment plan dated January 1, 2018, denied by Aviva on March 13, 2018 by Farnaz Suleman for Physical Rehabilitation in amount of

$4243.17 ⁷

ii. Treatment plan dated March 8, 2018⁸ denied by Aviva on March 20, 2019 by Dr. Maneet Bhatia in the amount of $3,491.48.⁹

iii. Treatment plan dated August 11, 2016 denied by Aviva on October 28, 2016 by Asif Sachedina of Canadian Active Rehabilitation Centre in the amount of $ 4,391.12.¹⁰

22I agreed with Aviva that it was premature to add the treatment plans denied on March 13 and March 20, 2018 as Aviva requested Insurer’s Examinations (IEs) which had not yet taken place.

23I ordered that the treatment plan dated August 11, 2016 be added to the hearing being satisfied that it was cost effective and expedient to do so. Other treatment plans from the same provider and for the same time period (2016) were included in the hearing and the applicant was intending to call a chiropractor from CARC to give evidence. The applicant had sent a letter to Aviva following the July 28, 2018 case conference asking to add this issue. I could see no reason to require the applicant to go to the expense of bringing a separate application to resolve this issue.

24Aviva did not argue that the applicant was barred by s. 55 of the Schedule from filing his application for this benefit with the Tribunal. It subsequently raised this issue its written submissions. Section 55 bars an applicant from filing an application with the Tribunal if the insurer has provided the insured with notice that it requires an IE and the insured has not complied. I have dealt with this issue below.

Other Preliminary Issues

Aviva’s Witnesses

25Aviva delivered its witness list to the applicant one day late and the applicant opposed Aviva calling either of its two proposed witnesses to give evidence at the hearing. Rule 9.4 gives me the discretion to allow a party to call witnesses when a witness statement is delivered late.

26I ruled that Aviva could call its witnesses because I was satisfied that there was no prejudice to the applicant if the witnesses were called. The applicant had been in receipt of the proposed witnesses’ expert reports since August 2017 and there was no element of surprise for the applicant.

Applicant’s Witness List

27The applicant asked to amend his witness list to add Dr. Bourassa a treating chiropractor to replace the physiotherapist and psychologist on his list. He also asked to have his wife and daughter added to the witness list.

28I allowed the applicant to substitute Dr. Bourassa for the physiotherapist and psychologist. I did not allow the applicant to add his wife and daughter to the witness list. I was satisfied that there was little if any prejudice to Aviva in substituting Dr. Bourassa as the applicant did not seek to introduce new documents in connection with Dr. Bourassa.

29Witness lists are established at case conference to allow parties to properly prepare for the hearing and to allow the Tribunal to set aside the appropriate amount of time for a hearing. At least ten days before the hearing a party is required to disclose its list of witnesses who it may call to give evidence and a brief description of the witness’ anticipated testimony. The applicant did not include his mother and daughter on the witness list he identified at the case conference of the lists he served on the applicant. The applicant’s counsel advised that the wife and daughter would testify as to the applicant’s condition following the accident.

30I refused to allow the applicant to add the wife and daughter to the witness list not being satisfied that they would provide evidence that the applicant could not provide himself. I was also concerned about the length of hearing and the costs that the parties would incur for the extra time required.

Length of Hearing

31I agreed to extend the hearing from two full days to five full days for the following reasons:

i. One-half day of the two days set aside for hearing was used for motion hearing and preliminary issues.

ii. The witness lists that were established at the May 8, 2017 case conferences and confirmed on July 28, 2017 allowed for seven witnesses to be called by the applicant and four witnesses to be called by the respondent for a total of 11 witnesses. In the end, the applicant’s witness list consisted of six witnesses and the respondent’s two witnesses for a total of eight potential witnesses plus the adjuster. I did not consider it to be fair to the applicant to require him to “trim” his witness list when the case conference order had permitted seven witnesses and he had prepared for the hearing on the basis of calling six witnesses.

iii. No portion of the hearing was ordered to be in writing. For an oral hearing the rules of natural justice and procedural fairness require that each party have the opportunity to call their own evidence and cross-examine the witnesses of the opposing party. Time must also be allowed for re- examination and reply evidence if required. I was prepared to consider that final submissions would be in writing in order to shorten the in-person hearing time.

iv. There are 12 treatment plans is issue. I anticipated that the examination and cross-examination of the adjuster with respect to the issue of the special award would require some time and that the examination and re- examination of up to three expert witnesses would require some time.

v. With a potential of 9 witnesses I determined that it was reasonable to add another three days of hearing to the hearing schedule for a total of four and one-half days – one half day having been taken up with preliminary matters.

32The parties agreed to June 4, 5 and 7th being added to the hearing schedule.

Background

33The applicant is a 54 year old gentleman who was born in India and moved to Canada in 1989 with his wife and two daughters. After arriving in Canada he completed a six month auto mechanic certificate program¹¹. At the time of the accident he was the owner/operator of an auto mechanics business he started in 1994. In February 2015 his business went bankrupt. His wife opened up an auto repair business under a new name and he now operates the auto repair business that is owned by his wife.

34In both accidents the vehicle the applicant was driving was rear-ended. He drove away from both accidents and the damage to the vehicles was minor.¹²

35The applicant evidence is that he was unable to return to the physical work of an auto mechanic after the accident. He testified that he returned to work doing customer service, phone calls, auto parts, invoices and helping with light work. His evidence is that he worked an hour or two per day for the first 6 to 8 weeks after the second accident and 20-25 hours per week for the first 3 or 4 months after the second accident.

36The applicant made no claim for Income Replacement Benefits and the evidence is contradictory as to how long it took him to return to full-time work. While he testified that he returned to full-time work by the end of 2016 he told the IE assessors in 2017¹³ (Drs. Goodfield¹⁴, Oshidari¹⁵, and Hope¹⁶ and Ms. Rutledge¹⁷) that he was working part-time in the neighborhood of 25 hours per week.

37There is no dispute that as a result of the accidents he suffered minor physical injuries and that his prior existing severe bilateral facet osteoarthritis¹⁸ and a disk bulge at L5/S1 level that causes sever central canal stenosis was exacerbated. Aviva initially took the position that the applicant’s injuries fell within the Minor Injury Guideline. The adjuster, Andrew Ferguson testified that the applicant was removed from the Minor Injury Guideline in July 2015.

38The treatment plan disputes arise over whether or not the accidents caused the applicant to have psychological, neurocognitive and chronic pain issues that affect the applicant’s ability to function and whether or not the applicant requires on going medical treatment and rehabilitation to manage his pain from the his prior existing conditions that were exacerbated by the accident.

39The relationship between the applicant and Aviva is acrimonious. On at least two occasions the applicant challenged the appropriateness of the IE assessors Aviva selected. The applicant also complains that Aviva demanded too many IE assessments and that the IE assessors lack impartiality because they work almost exclusively for insurance companies. The applicant seeks a lump sum award to compensate him for Aviva “unreasonably withholding or delaying payment of benefits”¹⁹.

40Aviva takes issue with the evidence of the applicant arguing that it is self- serving and lacking credibility. Aviva also accuses the applicant’s expert witness Dr. Lad and the health care practitioners who authored the treatment plans of being impartial because they stand to benefit financially if the treatment plans are approved.

41Aviva argues that the applicant is not entitled to a lump sum award on any benefits I find payable because any delay in the determination or payment of benefits is the fault of the applicant’s routine refusals to attend reasonable IE exams requested by Aviva.

42While the applicant is a pleasant gentleman and a co-operative witness I agree with Aviva that his evidence is contradictory and lacks credibility. I am particularly bothered by the fact that it was not until he gave oral testimony at the hearing that Aviva learned that after the accident he opened up a new auto repair business in his wife’s name which he continues to operate. I am also troubled by the fact that his reports of the details of the accident and his symptoms following the accident to the health care providers changed significantly approximately 18 months after the accident.

43The applicant argues that the rule (the Rule) in Browne v. Dunn²⁰ prevents Aviva from arguing that the applicant was not speaking the truth about the details and his symptoms from the accident. The Rule requires that if “in the course of a case it is intended to suggest a witness is not speaking the truth upon a particular point, his attention must be directed to the fact by cross- examination showing the imputation is intended to be made so he may have an opportunity of making any explanation which is open to him unless it would be otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility or his story or the story is of an incredible and romancing character”.

44Aviva has not offended the Rule. The evidence that Aviva relies on to impugn the applicant’s credibility in found in the his self-reports of the accident details and symptoms that the applicant made to the various health care practitioners/assessors/IEs who he met with following the accidents and in the hospital records. Aviva did not introduce any new evidence following the applicant’s cross-examination that would have been a surprise to the applicant.

45With respect to the applicant’s testimony that he lost consciousness in the accident Aviva’s counsel did point out to him that the family doctors notes have no mention of loss of consciousness with respect to the first accident. The applicant’s response was that Dr. Dar possibly forgot to write it down.

46With respect to the second accident the applicant testified that he also lost consciousness and that he could not remember if he told them he lost consciousness. The applicant was shown the hospital records²¹ and his response was that he told them he had a loss of consciousness. I do not think that there could be any doubt that Aviva would argue that the applicant’s evidence lacked credibility in its written submissions.

47In determining if the treatment plans are reasonable and necessary I give more weight to the clinical notes and records (CNRs) of the Family Medical Centre²² and physiatrist Dr. Kumbare²³. The reason for this is that neither the Family Medical Centre’s family physicians or Dr. Kumbare offer treatments from which they stand to benefit financially other than their OHIP billings and neither was retained by Aviva.

48I have referenced most of the documents I refer to in my decision using Aviva’s document books for the reason that Aviva’s documents are better organized and easier to follow. Where required I have referenced the applicant’s materials.

49I have categorized the 12 treatment plans in issue as follows:

(A) Cost of Assessments (7)

(B) Medical Benefits – chiropractic, psychological and physiotherapy and services (3)

(C) Medical Benefits – assistive devices (1)

(D) Rehabilitation Benefits – vocational assessment (1)

(A) Costs of Assessments

50Section 25 of the Schedule²⁴ requires an insurer to pay for certain expenses incurred by or on behalf of an insured person. An insurer is obligated to pay reasonable fees change by a health care practitioner for reviewing and approving a treatment plan under section 38 of the Schedule including any assessment or examination necessary for that purpose, if any one or more of the goods, services, assessment or examinations described in the treatment plan have been:

i. approved by the insurer

ii. deem by the Schedule to be payable by the insurer

iii. determine to be payable by the insurer on the resolution of a dispute by the Licence Appeal Tribunal

51Upon receipt of a treatment plan the Schedule²⁵ requires the insurer to give notice to an insured of the goods, services, assessments and examinations described in the plan that it agrees to pay for and any it does not agree to pay for. If the insurer does not agree to pay for an assessment it must provide medical reasons and all other reasons why it considers any goods, services, assessment and examinations or the proposed cost of them not to be reasonable and necessary.

52For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under the Schedule 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 rehabilitation²⁶.

53An insurer is not liable to pay for an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment plan that satisfies the requirements of the Schedule except in limited circumstances which do not apply to the medical and rehabilitation benefits in dispute²⁷ in this application.

54If I find that the applicant did not incur an expense because Aviva unreasonably withheld or delayed payment of a benefit in respect of the expense I may for the purpose of determining the applicant’s entitlement to the benefit deem the expense to have been incurred²⁸.

55Aviva requested an Insurer’s Examination (IE) for all seven treatment plans for the assessments in dispute. The applicant refused to attend at an IE for most of the treatment plans. Aviva brought a motion to bar the applicant from proceeding with his application for some of the benefits until he attended at the IEs. ²⁹. In response to the motion the applicant agreed to attend at the IEs. He subsequently reneged on attending an occupational therapy IE and was ordered³⁰ to do so after the motion was heard in writing.

56I have categorized the treatment plans for assessments chronologically by type of assessment.

Occupational Therapy Assessment

(1) $1,496.75 for an occupational therapy assessment, as set out in a treatment and assessment plan³¹ dated February 9, 2015, denied by the respondent on February 23, 2015

57The copies of treatment plan that both parties have provided with respect to this issue is a treatment plan by occupational therapist Alysa Bierbrier for an “attendant care assessment”. The Tribunal Order³², however, describes the treatment plan in issue to be for an occupational therapy assessment. I have made my decision based on the Tribunal Order for the reason that neither party argues that the issue was misstated in the Order.

58Aviva denied the benefit because at the time it took the position that the applicant’s injuries fell within the Minor Injury Guideline³³. Attendant care benefits are not available if an insured’s injuries fall within the Minor Injury Guidelines^{34 35}.

59Ms. Bierbrier is clear in her evidence that the applicant did not qualify for attendant care benefits and that her assessment was to determine the applicant’s level of functioning after the accident.

60I am satisfied that the applicant has met the burden of proof to show that the request for approval of this assessment three months after the accident was reasonable and necessary based on the following evidence:

i. The applicant was unable to return to the physical work of an automotive technician after the accident

ii. The CNRs³⁶ of Dr. Dar confirm that applicant reported lower back pain and numbness in his right leg. He reported experiencing pain while walking and difficulty getting out of bed.

iii. Dr. Dar referred the applicant for an MRI and a consultation with Dr. Kumbare, a physiatrist. The CNRs³⁷ of Dr. Kumbare 6 months after the accident confirm the applicant was still suffering from back pain and right leg numbness six months after the accident

iv. Ms. Bierbrier’s assessment found that the applicant would benefit from assistive devices to increase his safely while showering, toileting and dressing. ³⁸

61I give little weight to the IE³⁹ of occupational therapist Lynn Rutledge for the reason that it was that was conducted over three years after the accident.

While Ms. Rutledge recognizes the applicant still required an environmental support to transfer in and out of the bathtub she does not consider the applicant’s condition at the time the treatment plan was submitted.

62I also give little weight to the opinion of Dr. Oshidari⁴⁰ that the assessment was not reasonable because the applicant’s limitation was due to a pre-accident medical condition for the reason that I am satisfied that the accident exacerbated the applicant’s pre-existing condition and in February 2015 it was reasonable that he be assessed.

63Aviva submits⁴¹ that in deciding if a cost of examination is reasonable under the Schedule I must consider whether there is a necessary link between the expense and the advancement of a claim for the purpose of pursuing benefits available under the Schedule. In my view there is a link because the assessment was done to determine the applicant’s level of functioning and resulted in an application for assisted devices.

64For the reasons provided above and based on the evidence that the expense for this assessment was incurred by the applicant I order that the benefit in the amount of $1, 496.75 plus interest in accordance with the Schedule⁴² be paid.

Psychological Assessments

(2) $2,000.00 for psychological assessment as set out in a treatment and assessment plan by Dr. Levinson of Canadian Active Rehabilitation dated February 23, 2015, denied by the respondent on March 6, 2015

(3) $2,200.00 for a psychological assessment as set out in a treatment and assessment plan by Dr. Goldhawk dated December 15, 2016, denied by the respondent on December 28, 2016

(4) $2,070.00 for a psychological assessment as set out in a treatment and assessment plan by Dr. Lad dated July 26, 2016, denied by the respondent on August 29, 2016

65The applicant seeks approval of three treatment plans for psychological assessments. All three plans were initially denied on the basis that Aviva required an IE before making a decision. The applicant did not attend an IE for a psychological assessment until January 25, 2017 when he was assessed by psychologist Cindi Goodfield with respect to the December 15, 2016 treatment plan by Dr. Goldhawk. ⁴³ He also attended an IE with neuropsychologist Dr.

Christopher Hope⁴⁴ on July 17, 2017 with respect to the July 26, 2016 treatment plan by Dr. Lad.

66I am satisfied that the February 2015 treatment plan by Dr. Levinson⁴⁵ for a psychological assessment is reasonable and necessary.

67I find the plan to be reasonable and necessary based on the preliminary psychological screening by Dr. Levinson included in the treatment plan. The screening report identifies that since the accidents the applicant was experiencing anxiety while driving, had issues with sleeping, was impatient and became angry easily.

68Dr. Levinson’s request is also supported by the February 2017 IE report of psychologist Cindi Goodfield⁴⁶ and the July 2017 IE report of neuropsychologist Dr. Hope⁴⁷.

69The expense was not incurred and for that reason I find no benefit is payable. I do not find that the expense was not incurred because Aviva unreasonably withheld or delayed payment in respect of the expense. The applicant refused to attend the two IE exams that Aviva set up to have the applicant examined as provided for in the Schedule. ⁴⁸

70Aviva approved the treatment plan for a psychological assessment by Dr. Lad in full on August 18, 2017⁴⁹ based on the July 27, 2017 IE assessment⁵⁰ of Dr. Hope. This expense was incurred in October 2016 and I order that benefit in the amount of $2070 plus interest in accordance with the Schedule be paid.

71The treatment plan by Dr. Goldhawk for a psychological assessment was only partially approve by Aviva on the advice of Ms. Goodfield. Ms. Goodfield was of the view that the assessment could be completed for $1496.10 and Aviva accepted her recommendation and approved $1496.10.

72I am satisfied that the full amount claimed for the assessment is reasonable. I accept the evidence of Dr. Goldhawk who testified that Dr. Brooker was unwilling to do the assessment for the amount approved and that she could not find anyone willing to do the assessment for that amount.

73The statement by Ms. Goodfield that that the cost of a psychological assessment need not exceed $1496.10 is not supported by any other evidence. In fact, the psychological assessment by Dr. Hope⁵¹ finds the treatment plan by Dr. Lad for a $2000 psychological assessment to be reasonable and necessary and Aviva approved this plan.

74I am not prepared to deem this expense to have been incurred for the reason that at the time Dr. Goldhawk proposed the assessment the applicant had already incurred an expense with Dr. Lad for an assessment⁵². Aviva subsequently approved Dr. Lad’s treatment plan for $2070 and I have ordered that the benefit be paid.

Chronic Pain Assessment

(5) $2200 for a chronic pain assessment as set out in a treatment and assessment plan⁵³ dated December 15, 2016, denied by the respondent on December 28, 2016

75This treatment plan by chiropractor Dr. Goldhawk proposes a chronic pain assessment to be done by Dr. Goldhawk.

76I do not have to consider if this treatment plan is reasonable and necessary for the reason that Dr. Goldhawk conducted the chronic pain assessment the applicant’s seeks payment for on December 15, 2016 prior to submitting the treatment plan to Aviva on December 19, 2016.

77Aviva is not liable to pay for an expense incurred for an assessment before the insured person submits a treatment plan that satisfies the requirements of the Schedule⁵⁴.

Functional Abilities Assessment

(6) $2,200.00 for a functional abilities evaluation as set out in a treatment and assessment plan dated December 15, 2016, denied by the respondent on December 28, 2016

78This treatment plan by Dr. Goldhawk proposes a functional abilities assessment to be done by a kinesiologist. It is one of four treatment plans the Dr. Goldhawk proposed all dated December 15, 2016.

79Aviva denied the plan and required an IE. As previously stated the applicant initially refused to attend an IE with a physiatrist and only attended after the Aviva brought a motion to bar him from proceeding with his application for this benefit. The applicant attended an IE with physiatrist Dr. Oshidari 18 months after the treatment plan was submitted who provided the opinion that a kinesiology assessment was not reasonable or necessary.

80Aviva also argues that this benefit is not reasonable and necessary because there is no link between the assessment and a benefit claimed for the reason that the applicant made no claim for Income Replacement Benefits or Attendant Care benefits.

81The applicant argues that the written report of Dr. Oshidari lacks credibility because of a critical newspaper article⁵⁵ about investigations by the Ontario College of Physicians and Surgeons into his behaviour.

82I am not satisfied that the applicant has met his burden of proof with respect to this treatment plan for the following reasons:

i. In the treatment plan (dated over two years after the accident) Dr. Goldhawk does not recognize that prior to the accident the applicant had an existing condition that could affect his response to treatment.

ii. Dr. Goldhawk indicates that the applicant’s employer was not able to provide suitable modified employment for the applicant. This is contrary to the evidence of the applicant that he has modified his work tasks to accommodate his physical issues.

iii. Dr. Goldhawk testified that had she known that the applicant had returned to full-time work at the time of her assessment she would not have proposed this plan.

83In reaching this conclusion I do not rely on the IE of Dr. Oshidari which the applicant vehemently objects to arguing his report is not credible. I will add, however, that Dr. Oshidari was not called by either party as a witness and he has not been made aware that his credibility was going to be impugned and provided the opportunity to respond.

Neurocognitive Assessment

(7) $2,070.00 for a neurocognitive assessment as set out in a treatment and assessment plan⁵⁶ dated July 26, 2016, denied by the respondent on August 29, 2016

84Aviva denied this assessment and requested an IE exam with a neuropsychologist. The applicant did not attend an IE for this treatment plan until July 27, 2017 when he agreed to attend as a condition of Aviva withdrawing its motion to bar the applicant from proceeding with his Tribunal applications because he failed to attend IE examinations.

85I hear evidence from both of Dr. Lad the applicant’s neuropsychologist and Dr. Hope, Aviva’s neuropsychologist.

86Dr. Lad conducted the neurocognitive assessment he proposes in the treatment plan and diagnosed the applicant with mild neurocognitive disorder due to Traumatic Brain Injury (mild).

87Dr. Hope also did a neurocognitive assessment. He did not make a diagnosis because he found the applicant’s test results to be invalid. He concludes that it is highly unlikely that the applicant suffered neurocognitive impairment as a result of the accident. He also provides the opinion that if applicant did suffer a mild traumatic brain injury it is highly unlikely that he continued to suffer from it almost two years after the accident. Dr. Hope challenges the validity of Dr. Lad’s test results.

88Dr. Lad’s opinion differs from Dr. Hope’s with respect to the length of time it takes to resolve a mild traumatic brain injury. Dr. Lad is of the view that while individuals who suffer from a mild traumatic brain injury typically experience a resolution of symptoms within a few weeks following their injury there is a small population for whom symptom persist. His opinion is that the applicant is in this category.

89For the reasons provided below I am not satisfied that the applicant has shown why two and one-half years after the accident a neurocognitive assessment was reasonable and necessary.

90Dr. Lad’s proposal and his subsequent diagnosis is based on his understanding that the applicant hit the left side of his head on the car window in the first accident and that immediately following the impact he experienced dizziness, headaches, blurred vision and feeling dazed. He also had the understanding that in the second accident the applicant struck his head against the door pillar and experience a brief loss of consciousness. Dr. Lad was told by the applicant that his symptoms immediately following the second accident included headache, back pain, dizziness and feeling dazed.

91The applicant’s description of the two accidents that he provided to the various health care providers has changed overtime as have his reports of the symptoms that he experienced following the accident.

92I give more weight to applicant’s account of the accident and his reports of his symptoms immediately following the accident for the reason that they were made closer to the date and are reasonably consistent. These reports do not support a neuro cognitive assessment for the following reasons:

Accident Details

i. The CNRs of Dr. Dar include a description of the both accidents and the physical complaints that the applicant made to her. The CNRs make no mention of the applicant striking his head or losing consciousness in either accident and no mention of the applicant feeling dizzy, having blurry vision or feeling dazed.

ii. Following the second accident⁵⁷ the applicant told the CARC assessor that he did not black out and was able to drive away from the scene of the accident.

iii. The medical records of the applicant’s visit to the emergency room at East York General⁵⁸ on the day of the second accident indicate that the applicant did not experience a loss of consciousness and was not experiencing headaches.

iv. Dr. Hui, the applicant’s family physician, testified that he would expect that a person who suffered concussion symptoms to report this symptoms to his family physician and that the CNRs of the doctor would record these symptoms. He also testified that he was surprised that the notes of Dr. Dar did not report any concussive symptoms. Dr. Hui agreed that from the May 5, 2016 CNR of his office he would not have thought the applicant required a neurocognitive assessment.

v. The applicant denied⁵⁹ any external injuries, bruising, head injury or neck pain from the second accident when he saw Dr. Kumbare on April 28, 2015.

vi. On May 19, 2016 the applicant told Dr. Mascarenas that he suffered no loss of consciousness in the accident.

vii. The first report of him striking his head and losing consciousness in either accident was made to Dr. Lad eighteen months after the accident during his interview with the applicant with respect to this July 2016 treatment plan.

viii. The details the of the accident the applicant provided to Dr. Lad not only differ from the accident details he provided to Dr. Dar, CARC, and Dr. Kumbare they differ from the accident details he subsequently provided to Aviva’s IE examiners.

a. He told Ms. Goodfield that he did not lose consciousness in the first accident. He reported that he struck the left side of his head against the door frame and lost consciousness for a few seconds in the second accident.

b. He told Dr. Oshidari that in the first accident he hit his head on the steering and lost consciousness. He reported to Dr. Oshidari that in the second accident he his head hit the headrest and he believes he lost consciousness for two minutes.

c. He told Dr. Hope that in the first accident he hit his head on the steering wheel and consciousness for 5 minutes or more. For the second accident he reported to Dr. Hope that he hit his head on the side bar and believes he lost consciousness for 5 minutes or more

d. He told Ms. Rutledge in the both accidents he hit head on the left side impact beam and lost consciousness.

ix. I find the applicant’s evidence while under cross-examination that he reported loss of consciousness or headaches to Dr. Dar, Dr. Levinson, Dr. Kumbare and the staff at East York General and lacks credibility because it seems unlikely that all of the early heath care practitioners would have neglected to document a loss of consciousness in their notes.

x. I also give little weight to the applicant’s testimony under cross- examination that he did not understand the meaning of the term “loss of consciousness” until he “Googled” the meaning three months before the hearing or that he did not understand the meaning until possibly Dr. Goodfield explained it to him in 2017. I agree with Aviva that this evidence is inconsistent with his report of loss of consciousness to Dr. Lad in and the fact that in 2013 he fainted and experienced a loss of consciousness⁶⁰. I find the applicant’s testimony with respect to his understanding of the term “loss of consciousness” is evasive and self-serving.

Applicant’s Symptoms

i. The CNR’s of Dr. Dar do not indicate that the applicant reported any symptoms of headaches, blurred vision or dizziness to Dr. Dar at any time after the accident.

ii. While the Treatment Confirmation form (OCF-23) for the first accident⁶¹ indicates dizziness the Disability Certificate (OCF-3)⁶² for the first accident indicates that dizziness was resolved. The OCF-3⁶³ for the second accident indicates that dizziness and giddiness was resolved.

iii. While the applicant complained to the adjuster that he had pain on the right side of his hear and his eye following the second accident he did not report this complaint to Dr. Dar.

iv. While the February 18, 2015 report of occupational therapist Alysa Bierbrier⁶⁴ states that the applicant reported he was confused for 5 minutes after Accident#1 there is no mention of confusion after Accident#2. He also reported that his headaches resolved 3 days post motor vehicle accident. Ms. Bierbrier notes that the applicant reported no cognitive changes.

v. While the initial assessment done at CARC on October 14, 2014 indicates that the applicant reported some dizziness a January 2015 physiotherapy assessment indicates that the applicant was not suffering from dizziness or blurred vision. There are February 2015 and June 2015⁶⁵ CARC chiropractic assessments where the assessor has ticked the boxes for blurred vision and dizziness. By March 2016 the CARC assessments no longer indicate any issues with headaches, blurred vision or dizziness. The March 29, 2016 chiropractic re-assessment specifically states that the applicant denied any headaches and indicates that the applicant was not complaining of dizziness or blurred vision. The March 30, 2017 and August 03, 2017 and January 03, 2018 physiotherapy reassessments also indicate that the applicant was not complaining of these symptoms.

vi. The applicant’s written submission⁶⁶ that on March 29, 2016 the applicant had ongoing dizziness is not correct. As stated above this reassessment does not report dizziness.

vii. The headache reports the applicant made to Dr. Goldhawk in December 2016 and Dr. Hope in July 2017 are contradictory. He told Ms. Goldhawk that he experience a frontal lobe headache every morning while he told Dr. Hope that he has a headache when he wakes up about three times per week.

viii. I place no weight on the report that the applicant made to Dr. Hope that he wakes up dizzy in the morning buts feels better after breakfast. The applicant is diabetic and there is no evidence that his morning dizziness before breakfast in 2017 is related to his 2014 accident.

Referrals for neurological assessments

i. I place little weight on the CARC referrals for neurological assessments signed by Dr. Dar because I am not satisfied that the Dr. Dar put her mind to the details of the referral. Dr. Hui testified that the referral forms would have been prepared by a CARC kinesiologist and sent to Dr. Dar for signature. Dr. Hui also testified that it was his practice not to question the recommendations from CARC.

ii. Dr. Dar’s CNRs from February 15, 2015 indicate that the neuro/psych referral was “per CARC”.

iii. There are three CARC referrals dated June 11, 2015. While one of these referrals indicates that an appointment was pending with a neurologist I have no evidence that a referral was made or the basis for the notation. The applicant received regular treatment at CARC and saw Dr. Dar on a regular basis following the accident. Although CARC submitted a treatment plan for a psychological assessment in 2015 there is no evidence that Dr. Dar referred the applicant to a neurologist and I am unable to tell from the evidence who referred the applicant to Dr. Lad.

Results of Neurocognitive Assessments

93The applicant relies on the assessment of Dr. Lad that concludes he suffers from a mild traumatic brain injury to support a finding that Dr. Lad’s treatment plan is reasonable and necessary.

94I am not satisfied on the balance of probabilities that the applicant is suffering from a mild traumatic brain injury two years after the accident. According to both Dr. Lad and Dr. Hope the diagnosis of neuropsychological impairment is based primarily on self-report and the assessment of neuropsychological impairments requires a genuine effort on the part of the client.

95Dr. Lad’s diagnosis is flawed because it is based on the applicant’s self-report of the accidents made almost two years after the accident are not credible.

96In his report Dr. Lad states that the applicant reported that in the first accident he lost consciousness for a few minutes and that he was diagnosed with whiplash injury and concussion. He also states that the applicant reported that he returned to the “doctor one week later because of blurred vision and pain on the left side of his head”. I am unable to find any diagnosis of concussion or any mention of blurred vision or head pain in the CNRs of Dr. Dar.

97With respect to the second accident the applicant reported to Dr. Lad a four to five minutes loss of consciousness. The CNRs of East York General Hospital from the day of the second accident indicate that there was no loss of consciousness. The applicant also told Dr. Lad that East York General Hospital diagnosed him with a concussion. There is nothing in the CNRs of East York General Hospital to show that he was diagnosed with a concussion.

98Dr. Lad’s diagnosis is clearly based on the applicant’s reports that he suffered a loss of consciousness in both accidents and was diagnosed with a concussion and for the reasons provided above I do not accept his diagnosis.

99The validity of Dr. Lad’s testing is also in issue and Dr. Lad himself found some tests results to be invalid. Dr. Hope discontinue his testing and did not make a diagnosis because he concluded that the applicant’s test result were invalid because of possible symptom over-reporting, variable responding (possibly related to comprehension difficulties) or negative response bias on cognitive testing.

100Even if the applicant did suffer a mild traumatic brain injury, according to both Dr. Lad and Dr. Hope individuals return to baseline cognitive functioning within three months. Dr. Lad however is of the opinion that the applicant falls into the 15% of persons who suffer mild brain injury who do not recover in 3 months.

101Dr. Hope and Dr. Lad disagree on whether there is evidence that some people who suffer mild brain injury having ongoing impairments attributable to the mild brain injury after three months. Dr. Hope recognizes that the applicant’s situation is complicated by his report that he suffered loss of consciousness on two accidents. He finds however that even if the applicant suffered a mild brain injury there are no indicators that would suggest a prolonged recovery would be indicated.

102Not being satisfied that the applicant suffered a mild traumatic brain injury there is no need for me to decide if the applicant had ongoing impairment three more than three months after the accident.

103Dr. Bourassa, the applicant’s chiropractor, testified that it is possible to have a concussion without blacking out and that post traumatic amnesia is also possible. I give little weight to this evidence for the reason that the treatment plan for the neurocognitive assessment and the neurocognitive assessment is based on the applicant’s recollection of losing consciousness after both accidents. Dr. Bourassa is a chiropractor and by his own admission is not qualified to diagnose a concussion.

(B) Medical Benefits - chiropractic and physiotherapy services

(1) Is the applicant entitled to payment in the amount of $2,230.58 for a work hardening program as set out in a treatment and assessment plan dated April 13, 2016 by Canadian Active Rehabilitation, denied by the respondent on April 21, 2016?

104The work hardening program plan proposes exercise instruction, spinal mobility, core stabilization, strengthening program, active exercise program, resistance training, patient education, chiropractic treatment, and chiro laser therapy.

(2) Is the applicant entitled to payment for chronic pain treatment by Dr. Sachedina and Dr. Bourassa as set out in a treatment plan dated August 11, 2016 in the amount of $4, 391.12, denied by the respondent on October 28, 2016?

105This plan proposes an 8 week chronic pain program including a chronic pain exercise program, exercise instruction, spinal mobility, core stabilization, cardiovascular training, postural re-education, resistance training, strengthening program, patient education, chiro laser therapy, theraband kit, education materials and biofreeze.

106Aviva required the applicant to attend an IE⁶⁷with an orthopaedic surgeon for this plan. The applicant refused and requested a paper review⁶⁸.

107Aviva submits that the applicant is precluded by s. 44 and 55((1)(2) of the Schedule from filing his application with the Tribunal for this benefit because he did not attend an IE. Aviva, however, consents⁶⁹ to the IE’s of Drs.

Mascarenas⁷⁰ and Dr. Oshidari⁷¹ being applied to this treatment plan and for that reason I need not decide the s. 55 issue⁷².

(3) Is the applicant entitled to payment in the amount of $14, 141.80 for chiropractic services as set out in a treatment and assessment plan by Dr. Goldhawk of Ontario Independent Medical Evaluation Centre, denied by the respondent on December 28, 2016?

108This plan proposes is for 10 weeks of various treatments of “multiple body sites” by Dr. Goldhawk, a physiotherapist, and massage therapist. It includes time for clinical coordination and allows for a brace.

109Aviva argues that in determining these treatment plans for further physio and chiropractic treatment are reasonable and necessary I must consider whether the injuries arising from the accident were enough to directly cause impairment⁷³. Aviva asserts that the accident did not directly cause the applicant’s spinal stenosis and that “but for” the accident the applicant would have had his spinal stenosis. Aviva’s IE examiners Drs. Mascarena and Oshidari both recommend denying treatment plans for this reason.

110I do not accept this argument of Aviva. In my view Aviva accepted that the applicant suffered impairment in the accident when it approved earlier treatment plans and determined that the applicant’s injuries fall outside of the Minor Injury Guidelines. The question I must decide is whether the prolonged treatment proposed by these plans is reasonable and necessary considering the response to earlier treatment and the degree of pain relief that ongoing treatment has provided.

Parties’ Positions

111Aviva argues that the applicant received extensive therapy for one and one-half years after the accident and that the further therapy for chronic pain proposed in these plans is not reasonable and necessary⁷⁴. Aviva also argues that the CARC treatment plan for chronic pain is for the same treatment as the work hardening program and the proposed treatment plan by Dr. Goldhawk for chronic pain. In Aviva’s view there is no evidence that prolonged treatment will improve the applicant’s condition or provide significant relief.

112The applicant argues that he requires ongoing treatment to provide relief from his pain and to prevent further deterioration.

Evidence and Analysis

113The applicant relies on his own testimony, the CNRs of the Family Medical Centre, the CNRs of physiatrist Dr. Kumbare, the testimony of Dr. Hui (family doctor at the Family Medical Centre), the CNRs and testimony of Dr. Bourassa (treating chiropractor at CARC), and the medical evaluation⁷⁵ and testimony of chiropractor Dr. Goldhawk to support his position that these three treatment plans are reasonable and necessary.

114The applicant’s evidence is that despite his 2005 MRI showing right L5 radiculopathy and moderately severe bilateral facet osteoarthrosis he was symptom free prior to the Accident #1.

115His explanation for the 2005 MRI is that his family physician ordered it because he did heavy work as an auto mechanic. He provides no evidence as to who ordered the 2005 MRI.

116Dr. Hui’s testimony contradicts the applicant’s. He testified that the applicant’s first encounter at the Family Medical Centre was in November 2005 He first saw the applicant in 2008⁷⁶ and that between 2008 and 2010 he saw him frequently. He testified that the applicant reported lower back pain on four visits in 2009 but did not report any back pain after November 3, 2009. Prior to the accident the applicant had not sought medical care at the Family Medical Clinic for almost four years. Dr. Hui testified that he had no knowledge about the 2005 MRI until the hearing.

117The testimony of Dr. Hui brings into question the credibility of the applicant with respect to his prior back issues. I prefer the evidence of Dr. Hui about the prior back pain over the evidence of the applicant as Dr. Hui referred to his CNRs when testifying. It is not clear who ordered the 2005 MRI or why it was ordered. I agree with Aviva that it seems unlikely that an MRI would be ordered if there was no pre-existing back pain.

118While the applicant testified that he feels better after treatment he provided no evidence to show that his condition worsened when he stopped receiving retreatment at CARC. The evidence is that he returned to work full-time by the end of 2016 and has work full-time continuously since that time.

119The CNRs of the Family Medical Centre confirm that the applicant was seen by Dr. Dar shortly after both accidents and was referred to CARC for treatment.

The last note the CNR’s referring to physical therapy was made by Dr. Dar on May 5, 2016. The applicant relies on the referrals signed by Dr. Dar for as evidence that he requires prolonged therapy. The last CARC referrals provided by the applicant⁷⁷ are dated June 11, 2015.

120Dr. Kumbare⁷⁸saw the applicant twice in April and May 2015. His CNR’s confirm that the applicant suffers from a right L5 radiculopathy and moderately sever bilateral facet osteoarthoses and a disk bulge at the L5/S1 level causing severe canal stenosis. Dr. Kumbare finds that the February 3, 2015 MRI did not show a significant change to an MRI from 2005. (Dr. Kumbare’s comparison was made to the written report from the 2005 MRI. The imaging from 2005 is no longer available for comparison.)

121Dr. Kumbare states that over 6 months after the accident the applicant had ongoing pain that did not respond significantly to physiotherapy, massage therapy and independent exercise⁷⁹. He referred the applicant to Dr. Sangha another physiatrist to obtain his expert opinion regarding possible injection therapy for his lumbar facet osteoarthritis at the L5/S1 level to alleviate the applicant’s chronic facetogenic lumbar pain. Dr. Kumbare wanted to see the applicant in follow-up after the injections. The applicant decided not to consult with Dr. Sangha and did not follow-up with Dr. Kumbare.

122The evidence of Drs. Hui, Dr. Bourassa and Dr. Goldhawk is that the applicant requires ongoing chiropractic and physical therapy in order to keep him functional and prevent progression towards permanent disability.

123Dr. Hui’s first visit post-accident with the applicant was not until over 18 months after the accident and for this reason I do not give his evidence much weight.

His only knowledge of the applicant’s injuries and complaints at the time of the accident were the CNRs of Dr. Dar.

124By the time of his visit with Dr. Hui in August 2016 the applicant was experiencing left knee pain and right calf-pain. According to Dr. Hui the calf pain is a common cardiovascular problem for diabetics. The 2017 radiology reports⁸⁰ ordered by Dr. Hui confirm mild osteoarthritic changes in the left knee joint and a possible meniscus tear in the left knee. There is no evidence to link these issues to the accident. The applicant saw Dr. Hui three times between August 2016 and the hearing. He did not make any referrals for therapy.

125Dr. Bourassa testified that he sees 40-50 patients for 10 hours per day three days per week. He described his clinic as having 60 staff members who provide a multidisciplinary approach to treatment. He testified that the applicant was a dedicated patient who he would spend 15 to 30 minutes with in a session. According to Dr. Bourassa there is no limit on the amount of treatment a person should receive. He testified that more complex cases require more treatment and that treatment plans are changed to get an insured back to a

pre-accident state. Dr. Bourassa is of the opinion that all three treatment plans were reasonable and necessary.

126I give little weight to Dr. Bourassa’s evidence for the reason that he did not provide did not provide any evidence to convince me that the CARC treatment plans were progressive or that the applicant was gaining more than temporary relief from the therapy. Much of Dr. Bourassa’s evidence was with respect to whether or not the applicant suffered concussions in the accidents.

127Dr. Goldhawk examined the applicant and provides the opinion⁸¹ that she does not expect much improvement in the applicant’s symptoms and that his prognosis is very guarded.

128Dr. Goldhawk’s opinion is not based on an accurate medical history of the applicant. In her report she states that the applicant “has no relevant past medical history”. She does not recognize that the applicant had been diagnosed with spinal stenosis nine years before the accident; she does not recognize that the applicant has diabetes that is not always well controlled; she was of the belief that the applicant had not returned to work since the accident. Dr. Goldhawk’s report paints a picture of a man who is barely able to function and yet according to the applicant’s testimony he has worked full time since the time of Dr. Goldhawks’s report.

129I also note that while Dr. Goldhawk testified that the applicant was seen on a referral from his family doctor yet she indicates in her report that it was prepared for the Ms. Natalie Clarke of Clarke Law. I do not find any notes in the CNRs of the Family Medical Centre to indicate that the applicant was referred to Dr. Goldhawk by his family physician.

130The first IE exam that the applicant agreed to attend after the accident was conducted by Dr. Mascarenas in May 2016. Following a physical examination of the applicant Dr. Mascarenas concluded that one and one-half years after the accident there was no clinical indication for continued therapy.

131Decisions of the Financial Services Commission of Ontario⁸² set out helpful criteria for evaluating whether prolonged treatment is reasonable and necessary. FSCO has held that to qualify for prolonged treatment the insured person must establish at a minimum that:

i. the treatment goals as identified are reasonable;

ii. these goals are being met to a reasonable degree;

iii. the overall costs [not just financial, but also investment of time, etc.] of achieving these goals is reasonable taking into consideration both the degree of success and the availability of treatment alternatives.

132Other factors that have been considered⁸³ in determining the reasonableness of long term therapy include the following:

i. The credibility of the insured person and whether he or she is sincerely motivated to return to his or her pre-accident activities including work;

ii. Whether the treatment team takes a consistent approach recommending a reasonable progression of treatment;

iii. Whether the insured person and treatment team utilize a variety of treatment modalities and adjust the type and frequency of treatments based upon his or her current needs; and

iv. Whether passive modalities are relied upon to the exclusion or other treatment alternatives (i.e) whether there is an inappropriate dependence on passive modalities or the treatment in questions interferes with other aspects of rehabilitation.

133I am not satisfied that the overall goals of the plans are reasonable or that they are being met to a reasonable degree for the following reasons:

i. Dr. Kumbare’s May 15, 2015 CNR’s states that the applicant’s pain symptoms did not respond to the physical therapy, massage therapy or independent exercise that the applicant had done to date.

ii. While the applicant testified that he felt better after receiving treatments he did not testify that his conditioned worsened without treatments. The evidence is that the applicant returned to work full-time by the end of 2016 and has continued to work full-time since that time. The applicant has not provided any work records or evidence of his income before and after the accident to support the conclusion that his condition worsened after he stopped attending at CARC.

iii. The applicant reported to Dr. Lad in October 2016 that while the physiotherapy, massage therapy, chiropractic therapy and Bio-flex laser therapy were initially helpful providing a 30-35% improvement in his symptoms over the first 6-7 months the improvements plateaued and in some case the pain was betting worse. This report corroborates the report he gave to Dr. Kumbare in 2015.

iv. The applicant’s later reports with respect to the helpfulness of the treatments are inconsistent. He told Ms. Goodfield in January 2017 that the treatment was helpful while he told Dr. Ohsidari in July 2017 that there was no major change from his treatment at CARC and that the pain disappeared for a short time and then returned to its previous level.

134I have already found that the applicant is not a credible witness. As I have previously stated I prefer his earlier accounts of his symptoms and success with treatment and those accounts do not support on-going treatment.

135The three treatment plans proposed essentially the same treatment and I have not been directed to any basis on which to differentiate these plans from each other or earlier plans. While Dr. Goldhawk testified that she works closely with an orthopaedic surgeon who operates a non-surgical decompression clinic the treatment plan she proposes does not include this type of treatment.

136I am not satisfied that the treatment plans offer any progression of treatment or any adjustments to the previous treatment that the applicant received without much benefit.

137According to Dr. Kumbare, the applicant was in need of pain relief. While it is open to the applicant to reject a consultation for facet injections to relieve his pain it is not open to him to receive insurance benefits for continued therapy that provides that will not cure the pain issue and provides only minimal and temporary results. While the applicant testified he felt better after treatment I am do not find that he has shown on the balance of probabilities that ongoing treatment is reasonable and necessary give its minimal outcomes for the applicant.

138While pain relief may be the only goal of medical and rehabilitative treatment the applicant has not shown that his pain symptoms increased without treatment or that his ability to function was reduced. For the reasons provided above I do not find these three treatment plans to be reasonable and necessary and I deny the application for these benefits.

Psychological Treatment

139Aviva’s psychologist Dr. Cindi Goldberg Aviva approved 10 hours of therapy for mental health and addictions with Dr. B. Brooker. Aviva denied the claim for therapy for interpersonal relationships on the basis that Dr. Goldberg’s assessment did not find that the applicant was experiencing issues with interpersonal relationships.

140Dr. Goldhawk testified that the applicant did not receive the therapy with Dr.

Brooker because Dr. Brooker was not willing to treat the applicant for the amount set out in the treatment plant.

141I am not satisfied that the treatment for interpersonal relationships is reasonable and necessary for the reason that there is no evidence to support this treatment.

142This expense has not been incurred and there is no evidence that Aviva unreasonable withheld or delayed payment of the benefit. The benefit is not payable.

(C) Medical Benefits - Assistive Devices

(1) $1,014.35 for occupational therapy services as set out in a treatment and assessment plan dated March 9, 2015 by Carol Bierbrier & Associates, denied by the respondent on March 20, 2015

143Section 15(1)(f) of the Schedule requires and insurer to pay for all reasonable and necessary expenses incurred by or on behalf of an insured for hearing aids, wheelchairs, or other mobility devices prostheses, orthotics and other assistive devices. This treatment assessment plan is for assistive devices which Ms. Bierbrier describes as “basic bathroom safety”. The devices include non-slip bath mats, a grab bar to assist the applicant in getting in and out of the bathtub and on and off the toilet and a long handled scrub brush to assist in bathing.

144Ms. Bierbrier assessed the applicant in his own home and found that he could not get in and out of the bathtub without using the towel bars. Ms. Bierbrier testified that this is considered to be an unsafe practice because towels bars are not meant to be used as assistive devices and become loose and cause an accident. She also found that the applicant would benefit from a long handled brush for bathing and a long handled reaching assist for dressing and non-slip bath mats.

145The plan was initially denied by the insurer on the basis that it could not determine if the recommendations are reasonably required for the injuries the applicant received in the motor vehicle accident. An IE exam was requested. The applicant refused to attend the IE arranged by Aviva because it was with a general practitioner and not an occupational therapist. At the time Aviva had placed the applicant in the Minor Injury Guideline which limits the benefits available to an insured who sustain only minor injuries in an accident.

146Three years after the accident as a result of a Tribunal Order⁸⁴ the applicant attended an IE with occupational therapist Lynn Rutledge. The IE report of Ms. Rutledge concludes that the assistive devices recommended by Ms. Bierbrier are not reasonable and necessary.

147I find that the assistive devices and services in connection are reasonable and necessary as they are simple measures to ensure the applicant’s safety and assist him with dressing and bathing.

148I give the report of Lynn Rutledge little weight for the reason that she did not undertake her assessment until over three years post-accident when there one would expect a different clinical picture. As Ms. Bierbrier pointed out in her testimony Ms. Rutledge’s observation are consistent with Ms. Bierbrier’s assessment.

149Ms. Rutledge observed over three years after the accident that the applicant still had moderate restrictions in his back flexion and shoulder movement, and needed to use light “environmental support” being a bar at the end of the tub in order to get in and out of the bathtub. I accept Ms. Bierbrier’s evidence that this bar was towel bar and that it is unsafe for a person to rely on a bar that is not installed for the purpose of supporting body weight. I also accept Ms.

Bierbrier’s evidence that educational is an important component of a treatment plan that recommends assistive devices.

150The applicant testified that he had a grab bar installed in 2017. This is the only expense that the applicant incurred and I have no evidence as to the cost of it.

151Having evidence that the cost of the grab bar was incurred I deem that the remainder of the treatment plan was incurred. I am satisfied that Aviva unreasonably withheld payment of this plan for the reason that even three years after the plan was submitted the IE examiner found the applicant had the same limitations that Ms. Bierbrier found in February 2015. The Aviva adjuster A. Ferguson testified that he relies solely on the recommendations of the IE assessors in determining whether to pay a benefit. I am of the view that it is unreasonable the Mr. Ferguson did not review and compare the reports of the two occupational therapists.

152I order that the respondent pay to the applicant $ $1014.13 being the amount claimed in the treatment plan.

(D) Rehabilitation Benefit

(1) $2,200.00 for a vocational assessment as set out in a treatment and assessment plan dated July 26, 2016, denied by the respondent on August 29, 2016.

153The Schedule provides an insurer shall pay for all medical and rehabilitation benefits to or on behalf of an insurer person who sustains an impairment as a result of an accident. Rehabilitation benefits are to be paid for all reasonable and necessary expenses incurred by or on behalf of an insured person in undertaking activities and measures enumerated in the Schedule that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability arising from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.

154Measures to re-integrate a person into the labour market are considered reasonable and necessary taking into consideration the person’s personal and vocational characteristics, if they enable a person to engage in employment or self-employment that is as similar as possible to the employment or self- employment in which he or she was engaged in at the time of the accident or lead as normal a work life as possible.

155The rehabilitation measure and activities provided for in the Schedule include employment counselling, vocational assessments and vocational or academic training.

156I am not satisfied that the treatment and assessment plan for a vocational assessment is reasonable and necessary because the applicant was working at the time of the treatment plan and he does not meet the requirements of the Schedule.

157He has not provided any evidence to show that a vocational assessment will reduce or eliminate the affects of any disability and there is no evidence that a vocational assessment is required to facilitate his integration into the labour market. He has been in the labour market since one month after that accident. Although he was unable to return to the physical work of an auto-mechanic he did not testify that he was unhappy with his employment or seeking any alternative form of employment.

Lump Sum Award

158O. Reg. 664⁸⁵ gives me the discretion to award a lump sum of up to 50 per cent of a benefit amount to which applicant is entitled to at the time of the award together with interest on all amount owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly from the time the benefit first became payable under the Schedule if I find that Aviva unreasonably withheld or delayed payment of a benefit.

159Prior to the enactment of O. Reg. 664 there was a provision in the Insurance Act⁸⁶ for a “special award” which was a lump sum award calculated on the same basis as awards under O. Reg. 664. Under the Insurance Act provision an arbitrator who found that an insurer unreasonably withheld of delayed payment of a benefit did not have any discretion over whether to make a “special award”. O. Reg. 664 gives me discretion whether to make an award or not.

160The purpose of a lump sum award is to punish an insurer for unreasonably withholding or delaying payment of benefits and to deter other insurers from acting in a similar fashion⁸⁷. The Financial Commission of Ontario (FSCO) decision in In Liberty Mutual and Persofsky⁸⁸ sets out the following criteria to be considered in deciding whether to order a lump sum award.

i. The amount of the benefits unreasonably withheld or delayed

ii. The time the benefit is withheld or delayed

iii. Failing to respect important obligations under the Schedule

iv. Other factors that increase the gravity of the insurer’s conduct, including bad faith

v. Mitigating factors

161Aviva argues that the applicant in not entitled to any lump sum payment because any delay in receipt of benefits was brought on himself by refusing to attend IEs.

162The applicant argues that Aviva’s adjuster Andrew Ferguson failed to adjust the applicant claims properly because it was clear from Mr. Ferguson’s evidence that he place total reliance on the IEs in making his decisions whether to approved or deny the benefits claimed. He claims a lump sum payment of 50% of all of the benefits in issue. A lump sum award, however, may only be made on benefits which are found owing to the applicant. I have found the following benefits owing to the applicant:

(2) $1,014.35 for occupational therapy services as set out in a treatment and assessment plan dated March 9, 2015 by Carol Bierbrier & Associates, denied by the respondent on March 20, 2015.

163While I have deemed the full benefit claimed to have been incurred I do not find that the applicant is entitled to a lump sum award on this benefit for the following reasons:

i. The total cost of the assistive devices is less than $200 and I am not satisfied that this amount was prohibitive to the applicant.

ii. The applicant agreed to attend an IE exam with an occupational therapist as a condition of proceeding with this application. The applicant reneged on this agreement requiring Aviva to proceed with a written hearing on the motion. Aviva was successful on the motion and the applicant attended the IE. In my view the actions of the applicant in reneging on its agreement is a mitigating factor in Aviva’s favour.

164While I have order that this benefit be paid I am not satisfied that the applicant is entitled to a lump sum award on this benefit for the following reasons:

i. As already stated the treatment plan is confusing in that it states Attendant Care assessment when it is really an assessment for an occupational therapy report.

ii. The applicant agreed to attend an IE exam with an occupational therapist as a condition of proceeding with this application. The applicant reneged on this agreement requiring Aviva to proceed with a written hearing on the motion. Aviva was successful on the motion and the applicant attended the IE. In my view the actions of the applicant in reneging on its agreement is a mitigating factor in Aviva’s favour.

(3) $2,070.00 for a psychological assessment as set out in a treatment and assessment plan dated July 26, 2016, denied by the respondent on August 29, 2016.

165I am not prepared to award order a lump sum award on the outstanding amount for this psychological assessment. The applicant incurred the expense for this benefit in October 2016 and refused to attend an IE for this benefit claim.

166He did not attend at an IE for this benefit until July 2017 after Aviva brought a motion to bar his application to the Tribunal for this benefit. This benefit was approved August 18, 2017 after the applicant attended the IE.

167In my view the applicant failed in his obligation with respect to the IE and for that reason I do not find he is entitled to a lump sum award. I also have no evidence that the applicant pursued payment of this benefit once it was approved. It appeared to come as a surprise to both parties at the hearing that the benefit was approved.

Interest on Benefits Found to be Payable

168The applicant is entitled to interest on the Schedule benefits I have found to be payable in accordance with the Schedule.

169If the parties are unable to agree on the interest to be paid within 30 days of the date of the release of this decision they may contact the Tribunal to schedule a case conference for the purpose of setting a hearing date for the interest calculations that remain in issue.

Costs

170Although costs were not listed as an issue in the Orders sending these applications to hearing the applicant requests costs in his written submissions.

171The LAT Rules allows a party to request costs in a proceeding if it believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith.

172The Rules require a submission on costs to set out the reason for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.

173The applicant’s submissions do not point to the behaviour of Aviva in these proceedings that the applicant believes to be unreasonable, frivolous, vexatious or in bad faith. For that reason I find that the applicant is not entitled to an order for costs.

174For the reasons provided above I Order:

1. Aviva shall pay the following benefits:

(a) $1,496.75 for an occupational therapy assessment, as set out in a treatment and assessment plan dated February 9, 2015, denied by the respondent on February 23, 2015

(b) $2,070.00 for a psychological assessment as set out in a treatment and assessment plan by Dr. Lad dated July 26, 2016, denied by the respondent on August 29, 2016

(c) $1,014.35 for occupational therapy services as set out in a treatment and assessment plan dated March 9,2015 by Carol Bierbrier & Associates, denied by the respondent on March 20, 2015

2. Aviva shall pay interest on the benefits payable in accordance with the Schedule.

3. If the parties are unable to agree on the interest calculation within 30 days of the date of release of this decision they shall ask the Tribunal to schedule a case conference for the purpose of scheduling a hearing to determine the amount of interest payable.

4. The applicant is not entitled to costs.

5. All other benefits claimed by the applicant in these applications are denied.

Released: October 25, 2018

___________________

Susan Mather

Adjudicator

Footnotes

1. 1O. Reg. 34/10
2. 2Case Conferences were held on May 8, 2017 and July 28, 2017. A written hearing on the preliminary issue was heard on September 13, 2017
3. 3Accident #1, Tab 4, Aviva’s Document Brief, OCF-18 dated February 9, 2015
4. 4Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) made under s.25.1 of the Statutory Power Procedure Act R.S.O 1990, C. S.22.
5. 5Copies of these letters are included with the applicant’s motion material.
6. 6Letter to Andrew Ferguson dated March 22, 2018 is attached to Aviva’s response.
7. 7Exhibit #1 to Motion Hearing
8. 8Included in Notice of Motion
9. 9Exhibit #2 to Motion Hearing, included in Notice of Motion
10. 10Exhibit #3 to Motion Hearing
11. 11Tab 7B, Aviva’s Medical Brief, report of Dr. D. Goodfield; oral testimony of the applicant
12. 12Exhibit No. 3 and No. 4; Damage to the vehicle in the first accident was around $2000.00. Damage to the vehicle in the second accident was less than $1000.00.
13. 13Paragraph 12, written submissions of Aviva includes a chart that references the employment status he reported to the IE assessors in 2017.
14. 14Tab 7B, Aviva’s Medical Brief
15. 15Tab 7C, Aviva’s Medical Brief
16. 16Tab 7D, Aviva’s Medical Brief
17. 17Tab 7F, Aviva’s Medical Brief
18. 18Both the MRI done after the accident and an MRI done in 2005 show moderately severe bilateral facet osteoarthritis and a disk bulge at the L5/S1 level causing severe central canal stenosis.
19. 19S. 10, O. Reg 664
20. 20Browne v. Dunn, (1894) 6 R.J. Court of Appeal, England
21. 21Accident #2 ,Tab 9A, Aviva’s Medical Brief
22. 22Tab 100 Applicant’s Hearing Brief
23. 23Tab 3, Aviva’s Medical Brief
24. 24O. Reg. 34/10
25. 25S. 38(8) O. reg. 34/10
26. 26S. 44(1) O.Reg. 34/10
27. 27S. 38(2) O.Reg. 34/10
28. 28S. 3(8) O. Reg. 34/10
29. 29S. 55(2) O. Reg. 34/10
30. 30Decision of Adjudicator R. Hines released November 14, 2017
31. 31Accident #1, Tab 4, Aviva’s Document Brief, OCF-18 dated February 9, 2015
32. 32Order dated May 31, 2017, Adjudicator K. Kowal
33. 33Andrew Ferguson, the Aviva adjuster testified that the applicant was taken out of the MIG for the second accident in July 2015.
34. 34S. 14 2. O. Reg. 34/10
35. 35According to the testimony of Andrew Ferguson Aviva removed the applicant from the Minor Injury Guideline
36. 36Tab 1 , Aviva’s Medical Brief
37. 37Tab 3, Aviva’s Medical Brief
38. 38Tab 5, Aviva’s Medical Brief
39. 39Accident #1, Tab 4, Aviva’s Book of documents
40. 40Tab 7c, Aviva’s Medical Brief
41. 41Paragraph 82, Aviva’s Submissions
42. 42S. 51(2) O.Reg. 34/10
43. 43Tab 7B, Aviva’s Medical Brief Index
44. 44Tab 7D Aviva’s Medical Brief Index
45. 45Accident #1, Tab 1, Aviva’s Document Brief
46. 46Tab 7B, Aviva’s Document Brief
47. 47Tab 7D, Aviva’s Document Brief
48. 48Accident #1, Tab 1, Aviva’s Document Brief, Letter from Clarke Law dated March 11, 2015, Letter from Clark Law dated March 18, 2015.
49. 49Accident #2 Tab 4A Aviva’s document brief - Explanation of Benefits dated August 18, 2017
50. 50Tab 7D, Aviva’s Medical Brief
51. 51Tab 7E, Aviva’s Document Brief, page 12
52. 52Tab 4, Aviva’s Medical Brief,
53. 53Accident #2 Tab, 3C, Aviva’s Document Brief
54. 54S. 38(2) O. Reg. 34/10
55. 55“ Licensed to Bill: How doctors profit from injury assessments that benefit insurers” Globe and Mail , December 31, 2017
56. 56Accident #2, Tab 4A, Aviva’s Document Brief
57. 57Tab 2, Aviva’s Medical Brief, Physiotherapy Initial Assessment dated November 4, 2014
58. 58Tab 9A, Aviva’s Medical Brief
59. 59Tab 3, Aviva’s Medical Brief, CNR of Dr. Kumbare
60. 60Tab 9A, Aviva’s Medical Brief
61. 61Tab 101, Applicant’s Document Brief, dated November 11, 2014
62. 62Tab 101, Applicant’s Document Brief, dated January 13, 2015
63. 63Tab 101, Applicant’s Document Brief, dated January 13, 2015
64. 64Tab 5, Aviva’s Medical Brief
65. 65Tab 101, Applicant’s Document Brief.
66. 66Tab 2, Aviva’s Medical Brief, Paragraph 32 Applicant’s submissions.
67. 67Exhibit 7 Revised Notice, Explanation of Benefits
68. 68Exhibit 8, Letter from Clarke Law dated October 26, 2018
69. 69Paragraph 88, Aviva’s Written Submissions
70. 70Tab 7D, Aviva’s Medical Brief
71. 71Tab 7D Aviva’s Medical Brief
72. 72Paragraph 88 Aviva’s Written Submissions
73. 73Paragraph 103 Aviva’s Written Submissions
74. 74Tab 2, Aviva’s Medical Brief, The Patient Attendance Sheet
75. 75Tab 6, Aviva’s Medical Brief
76. 76The applicant submits in paragraph 12 of his reply submission that Dr. Hui was the family doctor since, 2005. My notes from the hearing indicate 2008.
77. 77Tab 101, Applicant’s Document Brief.
78. 78Tab 3, Aviva’s Medical Brief
79. 79Tab 1, Aviva’s Medical Brief, April 28, 2015CNR of Dr. Kumbare, confirms applicant reported minimal improvement with his symptoms
80. 80Tab 1, Aviva’s Medical Brief
81. 81Tab 6, Aviva’s Medical Brief, IE of Dr. Goldhawk, page 6-7.
82. 82General Accident Assurance Co. of Canada and Dominic Violi, FSCO Appeal P99-0047, September 2000
83. 83I.E. and Allstate, FSCOI A07-002058, October 27, 2009
84. 84Decision of Adjudicator R. Hines released November 14, 2017
85. 85S. 10, O.Reg. 664/16
86. 86S. 282(10), Insurance Act, R.S.O. 1990, Chapter I.8,
87. 87Liberty Mutual and Persofsky, FSCO Appeal P00-00041
88. 88FSCO Appeal P00-00041