17-004690 v Unifund Assurance Company, 2018 CanLII 81916

Licence Appeal Tribunal

Date: 2018-05-24

Tribunal File Number: 17-004690/AABS

Case Name: 17-004690 v Unifund Assurance Company

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:

Applicant

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Dawn J. Kershaw

APPEARANCES:

For the Applicant: William Brennan, Counsel

For the Respondent: Alexander Hartwig, Counsel

HEARD: In-Writing on January 29, 2018

OVERVIEW

1On September 25, 2010, the applicant was involved in a motor vehicle accident in which she alleges she suffered a back injury and psychological issues, including depression and anxiety. For the first time in 2016, the applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”), which the respondent denied.

2The applicant submitted this application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) pursuant to section 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”) on July 26, 2017. I must now decide the dispute based on the written materials the parties have filed with the Tribunal.

ISSUES IN DISPUTE

3The parties agree that the issues in dispute are as follows:

(i) Are the applicant’s injuries predominantly minor injuries as defined in section 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“MIG”)?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $2,707.31 for physiotherapy services, recommended by Jim Wernham in a treatment plan, dated April 26, 2016, and denied by Unifund on May 2, 2016?

(iii) Is the applicant entitled to receive a medical benefit in the amount of $4,428.84 for psychological services, recommended by Yves Bureau of Brainworks Corporation in a treatment plan, dated October 14, 2016, and denied by Unifund on October 24, 2016?

(iv) Is the applicant entitled to payment of an amount of $39.19 for prescription medication, submitted in an OCF-6 (Expense Form), dated May 11, 2017, and denied by Unifund on June 1, 2017?

(v) Is the applicant entitled to interest on any overdue payments?

PRELIMINARY ISSUE

4The respondent raises a preliminary issue, that I must determine first, as follows:

(i) Is the applicant barred by section 55 of the Schedule from proceeding with her application to the Tribunal because she did not submit her application for benefits within the time prescribed by section 32 of the Schedule?

RESULT

5Based on the evidence before me, I find that:

(i) The applicant has:

(a) Established that she is not barred by section 55 from proceeding with her application to the Tribunal;

(b) Established that she is not bound by the $3,500 limit in the Minor Injury Guideline (Issue 1);

(c) Demonstrated her entitlement to the treatment in the treatment plan for physiotherapy services, dated April 26, 2016 in the amount of $2707.31 submitted by Jim Wernham, but only for treatment incurred between the 11th business day after the respondent received the May 2, 2016 treatment plan and October 24, 2016 (Issue 2); and

(d) In accordance with section 51 of the Schedule, the applicant is also entitled to interest, payable with respect to the overdue payment of benefits set out in paragraph 78 (Issue 5).

(ii) The applicant has not established that she is entitled to:

(a) the treatment in the treatment plan for psychological services in the sum of $4,428.84 recommended by Yves Bureau of Brainworks Corporation in a treatment plan, dated October 14, 2016 (Issue 3);

(b) payment in the sum of $39.19 for prescription medication, submitted in an OCF-6 (Expense Form), dated May 11, 2017 (Issue 4).

BACKGROUND

6The applicant first applied for accident benefits in March 2016, five and a half years after the September 25, 2010 accident, by providing the respondent with an OCF-1 Application for Accident Benefits (“application for accident benefits”) and an OCF-3 Disability Certificate (“Disability Certificate”).

7A physiotherapist, Jim Wernham, submitted an OCF-18 treatment and assessment plan (“treatment plan”) on April 26, 2016 for physiotherapy treatment for the applicant in the sum of $2,707.31. In response, the respondent sent the applicant an Explanation of Benefits (“EOB”), dated May 2, 2016 in which it stated that because more than five years had elapsed from the time of the accident, the respondent was denying the treatment plan because it required additional information to determine to what, if any, benefits the applicant may be entitled.

8The applicant asserts she gave the respondent the information it requested – including an OHIP summary, clinical notes and records, and details of other income - and then heard nothing until after she applied to the Tribunal on October 3, 2016.

9On October 14, 2016, Brainworks, a company providing psychological services, submitted another treatment plan for psychological treatment in the sum of $4,428.84. The respondent also denied that plan.

10The respondent provided its denial of both treatment plans to the applicant in correspondence, dated October 27, 2016, in which it enclosed an October 24, 2016 EOB. The respondent stated that because the submitted treatment plan and assessment costs exceeded the Minor Injury Guideline (“MIG”) benefits limit of $3,500.00, it required her to attend an insurer’s examination under section 44 of the Schedule (“IE”) in order to determine if the proposed goods and services were reasonable and necessary.

11This EOB did not mention the timeliness of the applicant’s application for accident benefits. The applicant asserts the respondent did not raise the timeliness issue at all at that time. The respondent asserts it raised the issue in its November 25, 2016 Response to the applicant’s October 2016 Application to this Tribunal, eight months after she applied for accident benefits.

12The applicant attended an IE on November 22, 2016 as required in the second EOB for both treatment plans. The IE consisted of a psychological and a general practitioner’s assessment.

13On January 10, 2017, the parties attended a case conference before the Tribunal in relation to the applicant’s October 3, 2016 application to the Tribunal. The applicant withdrew her application. She alleges she did so because the respondent agreed that in exchange it would accept and adjust her claim for accident benefits, an assertion the respondent denies.

14On May 11, 2017, the applicant submitted an OCF-6 Expenses Claim Form to the respondent for payment of prescription medication in the sum of $39.19. On May 31, 2017, the respondent sent the applicant another EOB advising that it had not changed its denial of payment for the treatment plans, and it also denied payment for the prescription medications.

15The applicant applied to the Tribunal a second time on July 26, 2017. It is this application that is the subject of this decision. The applicant disputed the respondent’s refusal to pay the April 26, 2016 treatment plan for $2,707.31.

16The respondent filed its Response on August 3, 2017 in which it stated that because the applicant did not apply for accident benefits until March 2015 and did not provide any reason for her substantial delay in responding, it denied her entitlement to accident benefits.

17The applicant subsequently filed an Addendum to this application on September 20, 2017 in which she stated that she withdrew her October 2016 application to the Tribunal to allow for a scheduled IE to take place.

18A case conference in this application took place on October 10, 2017. The Tribunal issued an order after the case conference listing both the substantive issues and the preliminary issue to be determined in this application as set out above in paragraphs 3 and 4. To reiterate, the preliminary issue is whether the applicant is barred by section 55 of the Schedule from proceeding with her application to the Tribunal because she did not submit her application for benefits under the Schedule within the time prescribed by section 32.

THE LAW

19Section 55(1)1 in part states that a person shall not apply to the Tribunal if the person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by the Regulation. The “times prescribed by the Regulation” that are relevant to this matter are found in sections 32 and 34.

20Section 32 states that a person has to notify the insurer of her intention to apply for benefits no later than the seventh day after the circumstances arose that give rise to the entitlement to the benefit, or as soon as practicable after that day.

21Section 34 states in part that a person’s failure to comply with a time limit does not disentitle the person to the benefit if the person has a reasonable explanation.

PARTIES’ SUBMISSIONS

22The respondent argues that the applicant is barred from applying to the Tribunal because she did not submit her application for benefits to the respondent until 5 ½ years after the accident, despite the Regulation requiring a person to do so within seven days or as soon as practicable after that day.

23There is no dispute that the applicant did not submit her application for benefits within seven days. The respondent notes that the term “as soon as practicable” is not defined, but submits that the applicant hasn’t provided any basis or explanation of why 5 ½ years is “as soon as practicable”. Similarly, it acknowledges that section 34 states that a person will not be disentitled to benefits if she has a reasonable explanation for the delay. The respondent submits, however, that the applicant in this case has not provided any explanation, let alone a reasonable one.

24The respondent submits that the onus is on the applicant to prove that the delay was reasonable, and relies on the arbitration decision of Abbany v. Pafco Insurance Co.¹ (“Abbany”), issued by the Financial Services Commission of Ontario (“FSCO”). In that case, an applicant applied for benefits 16 months after the accident and offered an explanation for the delay. The arbitrator found the delay was not reasonable and denied the applicant’s claim for benefits. The decision was upheld on appeal.

25The respondent submits that this Tribunal has adopted the reasoning in Abbany. It points, as an example, to the case of P.M. v. RBC General Insurance Company², (“P.M.”). In P.M., the adjudicator considered three factors in deciding if an explanation for delay was reasonable:

(i) balancing of prejudice to the insurer;

(ii) hardship to the applicant; and

(iii) whether it is equitable to relieve against the failure to comply with the time limit.

26The respondent relies on the first of these three factors only. It argues that the applicant’s 5 ½ year delay in applying is extremely prejudicial to it because it is impossible to determine if the applicant’s current condition is in any way related to the accident. It points out, for example, that the applicant continued to work until July 2013, almost three years after the accident, making it impossible for the respondent to know what other events might have occurred between the accident and the day she stopped working that may not be related to the accident.

27The applicant’s submissions do not directly address the issue of whether or not the applicant has a reasonable explanation for the delay. Instead, she argues that the respondent cannot rely on the delay argument for the following reasons:

a. The respondent agreed at the case conference on January 10, 2017 that if the applicant withdrew her first application to the Tribunal, dated October 3, 2016, which she did, it would accept and adjust her application for benefits;

b. The respondent did not raise the timeliness issue until 19 months after the applicant first submitted her application for benefits and not until after she had submitted an application to the Tribunal. Instead, when the applicant applied to the insurer for benefits, the insurer told her it needed further information. This included sending her to IE’s, after which it denied her application on the grounds that her injuries fell within the MIG, not because her application was untimely; and

c. The respondent is estopped from relying on the delay argument because it did not advise the applicant of her right to provide a reasonable explanation for the delay in submitting her accident benefits application; ask her for an explanation; or explain to her the potential for being found to be permanently ineligible for accident benefits if she did not provide the explanation.

28The respondent counters that in fact it raised the delay issue in its November 25, 2016 response to the applicant’s first application to the Tribunal eight months after she submitted her application for benefits. It submits that rather than denying the applicant’s applications for benefits immediately upon receipt, it asked for further supporting documentation, which gave her a chance to submit medical evidence to demonstrate that her current complaints were related to her accident. However, it submits the medical evidence does not suggest this.

29The respondent also disagrees with the applicant’s argument that it had an obligation to advise her of her right to provide a reasonable explanation for her delay in applying. It submits that the applicant not only provided no authority to suggest that the respondent must do so, but did not provide any proof that she even told the respondent about the accident before March 2016.

DECISION AND ANALYSIS

30I find in these particular circumstances that the applicant is not barred by section 55 from proceeding with her application, for the following reasons.

31Section 55 potentially bars a person from applying to the Tribunal if the person has not complied with the time limits in the Regulation. In this case, section 32(1) states the applicant had to notify the respondent of the circumstances giving rise to the claim for benefits or had to submit an application for benefits within seven days, or as soon as practicable after that day.

32There is no disagreement between the parties that the applicant failed to comply with the time limit in section 32(1). However, section 34 gives the applicant a chance to provide a reasonable explanation for the delay in notifying the respondent of the circumstances or in submitting her application for benefits. The P.M. case on which the respondent relies sets out the test to be applied in determining whether an applicant’s explanation for delay is reasonable. This is not the issue in this case.

33In this case, the applicant argues that the respondent did not tell her it was denying her application because it was untimely but because it needed additional information from her. The applicant argues that for this reason the respondent should be estopped from relying on the timeliness issue.

34While the respondent asserts it first told the applicant it was denying her application for benefits because of timeliness in its November 25, 2016 Response to her first application, I was not provided with this Response. The respondent did raise timeliness as an issue in its August 3, 2017 Response to this application.

35I find that if the respondent was relying on delay as a reason for its denials, it should have set this out clearly for the applicant in its EOB’s, which it did not do. The respondent has an obligation to be clear with respect to its reasons for denying an application for accident benefits. While it argues the applicant did not provide a reason for her delay in responding, the respondent did not tell the applicant until sometime after her application that delay was even a reason for its denial. Even then, the respondent did not ask the applicant for an explanation for her delay, but instead sent her to IE’s and asked for production of documents.

36The applicant relies on the principles set out in Anthonpillai v. Security National Insurance Co³. In that case, the arbitrator held that if an insurer relies on the failure of an applicant to provide a required document (in that case an OCF-3 Disability Certificate with respect to her application for caregiver benefits), the insurer must clearly communicate to the applicant that without the document she may be permanently disentitled to benefits unless she provided a reasonable explanation for the delay in providing it. The applicant in this case argues that in accordance with Anthonpillai, the respondent was obliged to tell her that she had to give it a reasonable explanation for her delay in submitting her application for accident benefits, which it failed to do.

37The respondent argues that the Anthonpillai case has no relevance to this case because it deals with a different section of the Schedule that requires the applicant to submit a signed application for benefits within 30 days of receiving the application forms.

38Although Anthonpillai is a FSCO decision that is not binding on me, I find the principles in it instructive in this case, and I adopt the reasoning in it and the cases it reviewed and applied. I agree with the arbitrator’s position in Anthonpillai that the insurer is obligated to provide information to an applicant that will assist her in applying for benefits. The arbitrator reviewed the FSCO cases of Bhada and Security National Insurance Co./Monnex Insurance Mgmt. Inc.⁴ and Horvath and Allstate Insurance Company of Canada⁵ as well as the Supreme Court of Canada case of Smith v. Co-operators General Insurance Company⁶ and concluded that because the Supreme Court stated that one of the main objectives of insurance law is consumer protection, insurers are required to give the insured person information about the time limit that includes information about the potential consequences of failing to either comply with it or to provide a reasonable explanation for non-compliance.

39In Bhada, Arbitrator Leitch found that the insurer had “failed to communicate to Mr. Bhada the potential consequence of permanent disentitlement,” and concluded “that an insurer who seeks to rely upon the time limit imposed by section 32(3) must clearly explain to the insured person both of these potential consequences of his or her failure to comply with that time limit as well as his or her right to provide a reasonable explanation for any such failure.

40The arbitrator in Anthonpillai agreed and also concluded that the insurance company had an obligation to advise the insured of the potential consequence of permanent disentitlement to benefits that would occur for the period of any delay, unless she could provide a reasonable explanation for the delay.

41I adopt the reasoning in these cases. I find no reason why the principles enunciated do not apply to the situation in this case. Even if the respondent had properly advised the applicant that it was relying on delay, it also had an obligation to advise her that if she was not able to provide it with a reasonable explanation for the delay she may be permanently disentitled to benefits. The respondent did not do either of these things. As such, I agree with the applicant that the respondent cannot rely on the applicant’s delay to disentitle her to accident benefits.

42Because of my finding with respect to this argument of the applicant, I need not consider her other arguments with respect to the preliminary issue.

MINOR INJURY GUIDELINE (MIG) – FAILURE TO NOTIFY APPLICANT RE PHYSIOTHERAPY TREATMENT PLAN (ISSUES 1 and 2)

43Having found that the applicant is not barred by section 55 with proceeding with her application before this tribunal, I now must decide if she is entitled to the benefits listed in the issues in dispute.

44The first issue I must address is the applicant’s argument that the respondent cannot rely on the MIG because it failed to comply with the requirement to notify the applicant within 10 days of receiving the treatment plan that it was taking the position that the MIG applied.

45The respondent takes the position it does not have to specifically advise the applicant within 10 days that it takes the position the MIG applies, particularly when its initial denial was based on the requirement for additional information under section 33 of the Schedule. It submits its only obligation is to advise the applicant within 10 days if it agrees to pay for what is described in the treatment plan, or to provide medical or other reasons if it does not agree to pay. It submits it advised the applicant within 10 days of each of the submitted treatment plans that it was not going to pay.

46Section 38(8) of the Schedule requires in part that the respondent, within 10 days of receiving a treatment plan, give the applicant notice that it does not agree to pay for it, and gives the medical reasons and all of the other reasons why it considers the treatment not reasonable and necessary.

47Section 38(9) of the Schedule further requires specifically that the respondent advises the applicant if it believes the MIG applies.

48The respondent’s first EOB, dated May 2, 2016, in respect of the treatment plan, dated April 26, 2016 for physiotherapy services in the sum of $2,707.31 did not refer to the MIG. It sent a second EOB, dated October 24, 2016, which it stated related to the April 26, 2016 treatment plan and a second treatment plan, dated October 14, 2016, for $4,428.84 for psychological services, advised that because the treatment and assessment costs exceeded the MIG it required an IE assessment.

49I find the respondent failed, in its first EOB, to provide the applicant with the required notice within 10 days that it was relying on the MIG in relation to the May 2, 2016 treatment plan in the sum of $2,707.31.

50Section 38(11) provides that in the event the insurer fails to give the required notice then it is prohibited from taking the position that the insured person has an impairment to which the MIG applies and it shall pay for all goods, services, assessments and examinations that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives the notice.

51In this case, I find the respondent gave the applicant notice that it was relying on the MIG in its October 24, 2016 EOB by advising that because the treatment and assessment costs received to date were in excess of the minor injury coverage limit of $3,500.00, it required an IE assessment to confirm if the applicant’s accident related impairment was a minor injury and to determine if the goods and services being proposed were reasonably required as a result of the accident.

52As a result of section 38(11), I find that the respondent must pay for all goods, services, assessments and examinations between the 11th business day after it received the May 2, 2016 treatment plan and October 24, 2016. See: M.F.Z. v Aviva Insurance Can. (“M.F.Z.”)⁷.

53Section 38(11) further provides that if the insurer fails to give a notice in accordance with section 38(8), then it is prohibited from taking the position that the insured person has an impairment to which the MIG applies. As a result, I find further that for the life of this claim, the respondent cannot rely on the MIG limit as a reason to deny the other treatment plans.

54I make these findings despite the respondent’s submission with respect to section 33. As indicated, the respondent submitted it was not required to advise the applicant within 10 days that the MIG applied in particular because its initial denial was a request for further information as set out in section 33 of the Schedule. However, section 33 sets out the obligations on the insured to provide requested information to the insurer and the consequences of an insured failing to do so. In this case, I find section 33 to be inapplicable to the circumstances because the respondent made no allegation that that the applicant failed to provide any information it requested. I find section 33 inapplicable to these circumstances, because the respondent did not allege that the applicant failed to provide any requested information.

55In summary, I find that the respondent must pay for all goods, services, assessments and examinations between the 11th business day after it received the May 2, 2016 treatment plan and October 24, 2016.

56Because the respondent cannot rely on the MIG limit in respect of the other treatment plans, I turn now to a consideration of whether the medical benefits sought for the physiotherapy for periods after October 24, 2016, for psychological services in the amount of $4,428.84 , and the $39.19 for prescription medication are reasonable and necessary.

Are the Treatment Plans and Medications Reasonable and Necessary?

57Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. The applicant has the onus of showing on a balance of probabilities that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the accident.

a. Psychological Services Treatment Plan (Issue 3)

58The applicant applied for a medical benefit in the amount of $4,428.84 for psychological services, recommended by Yves Bureau of Brainworks Corporation in a treatment plan, dated October 14, 2016, and denied by Unifund on October 24, 2016. This sum included amounts for a social work assessment, counselling and travel time, among others. I find that the psychological services are not reasonable and necessary for the following reasons.

59The treatment plan states the applicant has significant pain in her lower back and neck which led her to cease working in 2013. It further states she has significant chronic pain as well as increased sadness and stress.

60In support of her position, she submitted clinical notes and records of Dr. Siddiqui, her neurosurgeon and orthopaedic specialist, which consisted of the following medical reports:

1. June 6, 2014 two page MRI report of the lumbosacral spine;
2. September 18, 2014 one page report of Dr. Siddiqui; and
3. May 7, 2014 two page report of Dr. Siddiqui.

61Primarily, however, the applicant relies on the respondent’s IE report from Dr. West that she submits supports her position that she has anxiety, depression and pain/somatic complaints above that of an average patient. She submits Dr. West found on testing that the applicant’s depression and anxiety were elevated.

62The respondent argues that the burden of proof rests with the applicant and she has not met it. It points out that there is no mention of any psychological illness or injury in the medical information provided by Dr. Siddiqui. It further submits that no medical notes have been provided for the four year period after the accident.

63The respondent also submits that the applicant failed to provide any of the undertakings given at the case conference, including the clinical notes and records of 13 different medical practitioners; an updated, decoded OHIP summary; and a prescription summary, and that these documents are necessary to properly evaluate if the requested treatment is related to the accident.

64Dr. West conducted an IE on the applicant on November 22, 2016. The applicant asserted that Dr. West’s opinion was biased because he had reviewed the applicant’s and respondent’s confidential Case Conference summary and Schedule A when preparing his report. While I agree with the applicant that this is a departure from a normal IE, the applicant did not give any specific reason for her position that it meant Dr. West’s opinion was biased as a result. The respondent points out that despite these being sent to Dr. West inadvertently, he does not refer to them in his addendum, nor does he refer to any legal arguments as part of his analysis.

65Despite agreeing with the applicant’s submission that there was a departure from the normal conduct of an IE, I find little to support the applicant’s view that this somehow tainted Dr. West’s medical opinion, and as such, I do not find this to be a reason to give Dr. West’s medical report less weight than I otherwise would. I turn now to the findings in that report.

66Dr. West in his report, dated December 29, 2016, stated that testing showed the applicant had extreme levels of perceived disability higher than that of 99% of patients, which could mean symptom magnification, though he stopped short of saying this was deliberate on the applicant’s part. Testing results showed very high depression; extremely high anxiety; high somatic complaints; high pain complaints; and extremely high functional complaints.

67Dr. West concluded there was no psychological impairment. He further stated that although the records he reviewed suggested some life stressors shortly before the accident, there was no temporal relationship between the accident and the applicant’s symptoms on assessment. He noted in his report that the applicant continued to work for three years after the accident until her pain became too great. She did not report any work restrictions resulting from mental health issues.

68Dr. West also reported that the applicant advised she had not participated in any counselling or used any psychotropic medications before or after the accident. She reported no problems of an emotional or psychological nature.

69Dr. West further reported that the applicant reported she slept very poorly because of pain, but reported no symptoms suggestive of post-traumatic stress disorder such as dreams, nightmares or flashbacks.

70Dr. West also provided a December 21, 2017 addendum on receipt of further documentation that included a March 1, 2010 clinical note from the applicant’s family doctor that noted symptoms of anxiety and a diagnosis of anxiety disorder, but Dr. West’s opinion remained unchanged.

Conclusion – Psychological Services Treatment Plan

71Despite some indication of anxiety about six months prior to the accident in a family doctor’s note not provided to me, and despite the high levels of depression and anxiety seen on testing by Dr. West, I find that the psychological services are not reasonable and necessary for the following reasons.

72First, the applicant provided no documentation to temporally connect the symptoms for which she sought psychological treatment in October 2016 to the accident six years earlier. Though she had seen her family doctor six months prior to the accident and was noted to have anxiety disorder, there are no other medical reports to substantiate ongoing symptoms between then and the time of the treatment plan.

73Secondly, the applicant provided no documentation to support any psychological issues that require treatment. The only medical reports she provided were from Dr. Siddiqui who is a neurosurgeon and orthopaedic specialist.

74I acknowledge that Dr. West’s testing results show high levels of depression and anxiety, among other things. However, he concluded that despite those, there was no temporal connection between them and the accident, and I agree.

75The applicant has not met her onus of showing on a balance of probabilities that the treatment plan for psychological services is reasonable and necessary.

b. Prescription Medication and Physiotherapy (Issues 2 and 4)

76As I have found the respondent must pay for treatment incurred under physiotherapy during the period ending October 24, 2016, for periods after that time, I must now also determine if the physiotherapy plan is reasonable and necessary. The applicant also sought payment for 39.19 for Oxycodone HCL/Acetaminophen from February 27, 2017 to treat back pain. The respondent denied these plans on the basis that they were not temporally connected to the accident.

77The applicant submits the prescription medication is connected to her back pain.

78The respondent denied payment based on Dr. Abram’s addendum report, dated May 29, 2017 in which she stated there was no temporal relationship between the accident and the applicant’s symptoms of neck pain travelling into both arms that started a year prior.

79The applicant provided no medical documents to connect temporally the pain medication and physiotherapy to the injuries suffered in the accident. As such, she has not met her onus of proving that the prescription medication and the physiotherapy are reasonable and necessary.

CONCLUSION

80As detailed above, the applicant has (1) established that she is not bound by the $3,500 limit in the Minor Injury Guideline (Issue 1), and (2) demonstrated her entitlement to the physiotherapy services in the April 26, 2016 treatment plan for, in the amount of $2,707.31 submitted by Jim Wernham, but only for treatment incurred between the 11th business day after the respondent received the May 2, 2016 treatment plan and October 24, 2016, (3) and interest (Issue 5)n accordance with section 51 of the Schedule, with respect to the overdue payment of benefits.

81The applicant has not established her entitlement to the remaining portions of the physiotherapy treatment plan after October 24, 2016 (Issue 2), $39.19 in prescription medication (Issue 4) or for psychological services in the sum of $4,428.84 by Yves Bureau of Brainworks Corporation (Issue 3).

Released: May 24, 2018

_________________________

Dawn J. Kershaw, Vice-Chair

Footnotes

1. 12013 CarswellOnt 13061, affirmed on appeal, Abbany and Pafco (FSCO P12-00039V, September 6, 2013)
2. 22017CarswellOnt 20324
3. 3FSCO A11-001168, July 12, 2013).
4. 4(FSCO A07-001972, January 23, 2009).
5. 5(FSCO A02-000482, June 9, 2003).
6. 6[2002] S.C.R. 129
7. 716-000517/AABS, aff’d 2017 CanLII 63632 (ON LAT)```