S.A. v. RBC Insurance Company, 2019 CanLII 101701

S.A. v. RBC Insurance Company

Citation: S.A. vs. RBC Insurance Company, 2019 ONLAT 18-005482/AABS

Tribunal File Number: 18-005482/AABS

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

Between:

S.A.

Applicant

And

RBC Insurance Company

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

For the applicant: Elena Steinberg, Counsel

For the respondent: Maggie Morgan, Counsel

HEARD in writing: March 11, 2019

OVERVIEW

1The applicant was injured in an automobile accident (“accident”) on June 17, 2016 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”). She was removed from the Minor Injury Guideline (“MIG”) by the respondent on January 11, 2017 due to psychological reasons.

2At the time of the accident, she was working full-time as a receptionist and returned to work following the accident. Her job changed in October 2016 and she acquired a better paying job as a full-time receptionist for a real estate broker – [ ]. Her position was terminated on June 16, 2017.

3She applied for income replacement benefits (“IRBS”) and medical benefits, including certain costs of examinations, which were all denied by the respondent.

4A case conference was held on October 17, 2018. The parties were not able to resolve the issues in dispute and agreed to proceed to a written hearing.

ISSUES

5The following issues remain in dispute:

(i) Is the applicant entitled to the income replacement benefit, in the weekly amount of $400.00, for the period of June 17, 2017 to September 27, 2017, submitted on July 11, 2017 and denied on January 19, 2018?

(ii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,087.92 for physiotherapy treatment recommended by Brampton Civic Care Centre Inc., in a treatment plan (OCF-18) submitted on December 29, 2016 and denied on January 10, 2017?

(iii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,326.28 for physiotherapy treatment and a tens unit recommended by Brampton Civic Care Centre Inc., in a treatment plan (OCF-18) submitted on February 7, 2017 and denied on February 22, 2017?

(iv) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,754.08 for physiotherapy and chiropractic treatment recommended by Brampton Civic Care Centre Inc., in a treatment plan (OCF-18) submitted on October 3, 2017 and denied on October 18, 2017?

(v) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,198.00 for a chronic pain assessment, recommended by Narman Malik-Abbasova, in a treatment plan (OCF-18) submitted on November 18, 2016 and denied on November 18, 2016?

(vi) Is the applicant entitled to the cost of an examination, in the amount of $1,300.00, for the functional abilities’ evaluation, submitted on November 28, 2016, denied on December 1, 2016?

(vii) Is the applicant entitled to an orthopedic assessment, in the amount of $2,198.00, submitted on January 10, 2017, denied on January 23, 2017?

(viii) Is the applicant entitled to a neurological assessment, in the amount of $2,000.00, submitted on February 7, 2017, denied on February 22, 2017?

(ix) Is the applicant entitled to an attendant care needs assessment (Form 1), in the amount of $1300.00, submitted on February 27, 2017, denied on March 13, 2017?

(x) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6I find the applicant has not met her onus of establishing on a balance of probabilities that she is entitled to receive the claimed income replacement benefit. Additionally, the applicant has not established that any of the medical benefits in dispute are reasonable and necessary. As no benefits are payable, there is no interest owing.

ANALYSIS

7The applicant’s position is that she is entitled to an IRB for the period of June 17 - September 27, 2017 since, she argues, she suffered from a substantial inability to perform the essential tasks of her pre-accident employment as a result of the injuries she sustained from the accident. She applied for regular Employment Insurance Benefits (“EI Benefits”), which were converted through EI to sickness benefits on August 15, 2017. The applicant received EI benefits which included sickness benefits from June 18 - September 23, 2017.

Is the applicant entitled to receive an IRB for the period June 17 -September 27, 2017?

8The test for entitlement to IRBs within the first 104 weeks following the accident is set out at s. 5(1)1.i of the Schedule. The insurer is required to pay an IRB to an insured person who sustains an impairment as a result of an accident, was employed at the time of the accident, and, as a result of and within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment.

9I find the applicant is not entitled to receive the claimed IRB. More specifically, and as explained below, I am not persuaded that she suffered a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident. She has not persuaded me that she suffers from any functional impairment from a physical or psychological perspective. While I accept the applicant has sustained psychological impairments as a result of the accident, and that she has also been diagnosed with chronic pain, she has not persuaded me that these have caused her a substantial inability to perform the essential tasks of her employment.

10The applicant returned to work following the accident and continued to work up until her termination from [her former employer] on June 16, 2017. She was then off from work from June 17 - September 27, 2017. The clinical notes and records (“CNRs”) noted that she visited her family doctor, Dr. H. Halka, on four occasions following the accident and prior to her termination. The CNRs noted she reported the subject accident and pain in her neck, back, bilateral shoulders, and knees.² The CNR dated March 31, 2017 noted the applicant experienced stress and anxiety regarding her driving after the accident but noted “no depression, change of mood, and normal activity.”

11The applicant produced a referral note dated October 4, 2016 from Dr. H. Bruner, medical doctor at Brampton Civic Care Center,³ in which she was referred to a psychologist to address her post-traumatic stress disorder (“PTSD”). I accept she was diagnosed with PTSD and referred to a psychologist but in October 2016 she also started working at a new job at [her former employer]. She continued working there for eight months until her termination on June 16, 2017.

12I do not accept that the applicant’s EI benefits being converted to sickness benefits on August 15, 2017 were as a result of her injuries sustained from the accident. I am not persuaded that the diagnoses of PTSD, chronic back pain, and depression resulted in the applicant suffering a substantial inability to perform the essential tasks of her employment. Dr. Halka’s CNRs following her termination and the medical note dated July 4, 2017 have not persuaded me that the medical reasons for which she could not return to work were accident-related. The CNR of Dr. Halka dated June 30, 2017 noted she felt depressed, experienced a lack of sleep, anxiety, that her sad mood impacted her job, and that her job was terminated because her performance was low. Dr. Halka noted the following diagnoses: PTSD, chronic back pain, and depression.⁴ Further complaints of chronic back pain and depression were noted within Dr. Halka’s CNRs.⁵ Prior to these visits, the last time the applicant saw Dr. Halka was March 31, 2017. Dr. Halka noted at that time: “no depression, change of mood, and normal activity” and that she experienced stress and anxiety with driving [emphasis mine] after the accident. The diagnosis of chronic pain and depression were made by Dr. Halka a year after the accident and following the applicant’s job termination. Dr. Halka produced a note dated July 4, 2017, which noted she was unable to start work due to medical reasons for the period June 17 - September 30, 2017. However, I do not find this note has linked the applicant’s medical condition to the accident. As a result, I afford little weight to this note. Based on the reasons I noted above, I am not persuaded that the applicant suffered a substantial inability to perform the essential tasks of her employment.

13The applicant provided a letter from [her former employer] dated June 8, 2017 noting her job was terminated because of performance issues. I afford little weight to this letter which was typewritten on blank paper and no further confirmation has been provided which supports the information contained within this letter. I prefer the evidence supported within the Records of Employment (“ROEs”) as the email correspondence⁶ from the person who issued both ROEs confirm that her job was terminated due to restructuring.

14The applicant relies on an Employer’s Confirmation Form (“OCF-2”) dated July 10, 2017 and a disability certificate (“OCF-3”) completed by Dr. D. Mirian, chiropractor, dated June 30, 2017 to support her position that she was unable to work from June 17 - September 27, 2017. The following injuries were noted within the OCF-3: headaches, sprain/strain of the cervical, thoracic, and lumbar spine, sprain/strain of shoulder joint, wrist, and parts of hand, insomnia, and other anxiety disorders. The OCF-3 noted the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment at the time of the accident and as a result of and within 104 weeks of the accident. It was further noted the applicant could not return to work on modified duties with an anticipated duration of 9-12 weeks. The OCF-3 has not persuaded me that the applicant suffers a substantial inability to perform the essential tasks of her employment. The OCF-3 is dated a little over a year since the accident and after the applicant’s job was already terminated. The CNRs prior to the applicant being terminated do not support the applicant had any functional impairment. The CNRs of Dr. Halka from June 30 - September 15, 2017 are based on the applicant’s information which she self-reported to Dr. Halka following the termination of her employment. The conditions noted within the OCF-3 note the applicant is unable to return to work as a result of the injuries she sustained from the accident, but I am not persuaded by this OCF-3 for the reasons I noted above.

15The applicant attended a chronic pain assessment with Dr. A. Di Fonzo, chronic pain specialist, who issued a report on October 24, 2017.⁷ The report noted the applicant’s primary complaints were pain in the following areas: cervical, shoulder, mid-back, and lumbar region. Dr. Di Fonzo noted that the applicant reported some improvement over the last year, and he noted she had full range of motion and hesitant range of motions secondary to pain with extension in the cervical, shoulder, and lumbar regions. He also noted the following associated psychological symptoms: disturbing nightmares, poor sleep, frequent crying/sadness, increased stress, tense/nervous, difficulty with concentration/memory, low energy, and increased irritability. The applicant was diagnosed with mechanical neck and back pain, Myofascial Pain Syndrome, on the fibromyalgia spectrum, and Post-traumatic Stress Disorder (“PTSD”) was questionable. He recommended bloodwork to screen for rheumatological or other causes of myofascial pain.

16The applicant attended an insurer’s examination (“IE”) with Dr. R. Zabieliauskas, physiatrist, on two occasions. The first report dated February 9, 2017⁸ assessed three treatment plans for three assessments: chronic pain, functional abilities evaluation, and an orthopedic assessment. Dr. Zabieliauskas concluded the applicant had no residual physical impairment attributable to the accident. A second IE was conducted to assess entitlement to an IRB, following which Dr. Zabieliauskas issued a report dated December 12, 2017.⁹ This report noted she reported no tenderness to palpation or muscle spasm in the areas of her head, neck, or thoracic or lumbar spine. The report noted that the applicant had a good range of motion in her upper and lower extremities, but that she was experiencing some residual pain. Ultimately, Dr. Zabieliauskas concluded that, from a physical medicine and musculoskeletal perspective, the applicant did not suffer a substantial inability to perform the essential tasks of her employment as a result of the accident.

17I am not persuaded by Dr. Di Fonzo’s report as his report does not address how her chronic pain has caused her to suffer a substantial inability to perform the essential tasks of her employment. Further, Dr. Di Fonzo noted the causes of her myofascial pain may be unrelated to the accident. I do not find the applicant suffers from any functional impairment as a result of her chronic pain diagnosis. I prefer Dr. Zabieliauskas’s December 12, 2017 IE report as it supports that the applicant does not suffer from any functional impairment as a result of her chronic pain diagnosis.

18I am persuaded by the findings evidenced within the IE report issued by Dr. T. Seon, psychologist, dated December 12, 2017 in which Dr. Seon found that although the applicant suffered from psychological impairments as a result of the accident, these impairments did not cause a substantial inability for the applicant to perform the essential tasks of her employment.¹⁰ Dr. Seon’s results were based on a clinical interview and psychometric testing. Her report noted that the applicant reported pain in the areas of her neck, back, left shoulder, and bilateral knees. Further, she reported significant symptoms of vehicular anxiety when traveling in a vehicle for long periods. The applicant reported to Dr. Seon that her commute to [her former employer] took 30 minutes, and it took several hours for her to settle down both during her commute and following the commute. The applicant advised that, after her job with [her former employer] was terminated, she started taking prescription medication, that her symptoms regarding her physical pain and emotional symptoms started improving. The applicant then resumed working on September 27, 2017 as a receptionist at another job located five minutes from where she lives. I find this last point notable as the applicant had reported to Dr. Halka that she experienced driving anxiety following the accident and the information she reported to Dr. Seon supports she experienced vehicular anxiety from the 30-minute commute to her prior job at [her former employer]. Dr. Seon diagnosed the applicant with Specific (isolated) Phobia and an Adjustment Disorder with depressed and anxious mood which were linked to the accident. Therefore, from this evidence, I find that the applicant’s psychological impairments from the accident were exacerbated by driving. However, I do not accept that, as a result of her driving anxiety and PTSD, she suffered a substantial inability to perform the essential tasks of her employment.

19Thus, for the reasons above and based on a totality of the evidence, I find the applicant has not met her onus of proving on a balance of probabilities that she suffered a substantial inability to perform the essential tasks of her employment as a result of the injuries she sustained from the accident.

Is the treatment plan for physiotherapy, submitted December 29, 2016 in the amount of $3,087.92 reasonable and necessary?

20The applicant referenced an occupational therapy (“OT”) report done by paper review by Ms. Rogozinsky, OT, dated January 25, 2019¹¹ in support of her position that this treatment plan is reasonable and necessary. I do not agree. The evidence produced by the applicant does not support how the goals of the treatment plan will be met with the physical treatment proposed within this treatment plan. The physiotherapy treatment plan was prepared by Reeshma Shetty, physiotherapist at Brampton Civic Centre. The goals of the treatment plan noted: pain reduction, increased strength / range of motion, and return to activities of daily living and pre-accident work activities. Barriers to recovery noted: severity of injuries, sleep disturbances, and PTSD symptomatology. The OT report of Ms. Rogozinsky contained excerpts from the applicant’s own psychological report dated November 28, 2016 prepared by Dr. H. Raghuraman, psychologist.¹² The excerpts noted the applicant reported she has difficulty with her self-care tasks, cooking, cleaning, and laundry. Further, the excerpts noted she reported post-accident: increased feelings of anxiety, agitation, loss of pleasure, poor self-esteem, and feelings of irritability and dysregulated emotional states are often triggered by pain. Dr. Raghuraman diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia, Situational Type (driving-related) and 12 session of cognitive-behaviour therapy was recommended. I afford little weight to the information contained within Dr. Raghuraman’s report that this treatment plan is reasonable and necessary. The information which noted the applicant experienced difficulty with her self-care tasks, cooking, cleaning, and laundry are based on the applicant’s self-reporting and are not evidenced within Dr. Halka’s CNRs. The CNR of Dr. Halka dated September 21, 2016 noted back, knee, and shoulder pain since the accident but Dr. Halka noted normal power and sensation at both limbs, normal back range of motion, and a normal leg rising test. One of the treatment plan goals was for the applicant to return to her pre-accident work activities. However, the applicant returned to work after the accident with no restrictions and was working at the time this treatment plan was submitted. Ms. Rogozinsky’s OT report cited excerpts from Dr. Fonzo’s chronic pain report dated October 24, 2017 which noted psychological complaints and that the applicant would benefit from physiotherapeutic modalities and strengthening exercises. As I previously noted, Dr. Di Fonzo recommended the applicant undertake further investigation to rule out non-accident related causes for her myofascial pain. Dr. Di Fonzo also issued his report 10 months after this treatment plan was submitted to the insurer. Therefore, I do not find the applicant has met her onus of proving this treatment plan is reasonable and necessary.

Is the treatment plan for physiotherapy and a tens unit in the amount of $2,326.28, submitted February 7, 2017 reasonable and necessary?

21The treatment plan in the amount of $2,326.28 is not reasonable and necessary. This treatment plan was submitted by Dr. M. Dario, chiropractor of Brampton Civic Centre, and noted the same treatment plan goals and barriers to recovery as the treatment plan submitted December 29, 2016. The applicant relies on Ms. Rogozinsky’s OT report in support of its position that this treatment plan is reasonable and necessary. The OT report referenced Dr. P. Kelly’s psychological IE report, dated July 18, 2017 which noted the applicant self-reported headaches, neck, back, left shoulder, and bilateral knee pain, and that she also reported limitations with completing cooking, housekeeping, and grocery shopping. I am not persuaded by the information noted within Dr. Kelly’s report that this treatment plan is reasonable and necessary as the physical complaints noted are based upon the applicant’s self-reporting. Ms. Rogozinsky further referenced the IE report of Dr. Zabieliauskas, dated December 12, 2017 which noted the applicant reported she was experiencing back pain and headaches. I note that Dr. Zabieliauskas noted in his December 12, 2017 report that the applicant was experiencing some residual pain from her injuries from the accident. He further noted her soft tissue injuries resulting the accident had resolved and that she had reached maximum medical recovery. This information was also noted in the previous physiatry IE assessment report of Dr. Zabieliauskas dated February 9, 2017 where it was also noted that no further rehabilitation, treatment, or assistive devices was reasonable and necessary. I accept the conclusions reached within the IE report of Dr. Zabieliauskas dated February 9, 2017 that this treatment plan is not reasonable and necessary

Is the treatment plan in the amount of $2,754.08 for physiotherapy and chiropractic treatment, submitted October 3, 2017 reasonable and necessary?

22This physiotherapy treatment plan prepared by Reeshma Shetty of Brampton Civic Care Centre proposed the same goals and identified the same barriers to recovery as identified in the two prior treatment plans noted above. I am not persuaded by the October 24, 2017 chronic pain assessment report of Dr. Di Fonzo which recommended a trial of physiotherapeutic modalities and strengthening exercises. However, no functional impairment was noted, and Dr. Di Fonzo recommended further bloodwork to address the causes of the myofascial pain which he diagnosed. Therefore, Dr. Di Fonzo does not link the cause of the applicant’s myofascial pain to the accident. I prefer the December 12, 2017 physiatry IE assessment of Dr. Zabieliauskas, which specifically assessed this treatment plan and found it was not reasonable and necessary. His report noted he performed a clinical examination and that she had some residual pain complaints but had no physical restrictions or functional limitations. He further noted that her soft tissue injuries from the accident had resolved and she had reached maximum medical recovery. I find Dr. Zabieliauskas report to be persuasive that the applicant had reached maximum medical recovery and I therefore find this treatment plan is not reasonable and necessary.

Is the treatment plan in the amount of $2,198.00 for a chronic pain assessment, submitted November 18, 2016 reasonable and necessary?

23I do not find this treatment plan to be reasonable and necessary. The CNR of Dr. Halka dated September 27, 2016 noted back, knee, and shoulder pain, and that the applicant was attending physiotherapy and was feeling okay. Full back range of motion was noted. There are no further documented visits with Dr. Halka until March 15, 2017. The applicant was referred to a psychologist, Dr. Bruner, on October 4, 2016 to address her PTSD. The applicant continued to work at the time the treatment plan was submitted, and I do not find the applicant’s evidence supports any functional impairment. The OT report of Ms. Rogozinsky included on page 11, a paragraph describing chronic pain and interventions for treatment. I found this was not helpful in determining if the chronic pain assessment in dispute is reasonable and necessary. The applicant was diagnosed with chronic pain by Dr. Halka and Dr. Di Fonzo in 2017. However, the applicant continued working at her job and has not produced evidence which supports any functional impairment. Therefore, I find this treatment plan is not reasonable and necessary.

Is the treatment plan in the amount of $1,300.00, for the functional abilities’ evaluation, submitted on November 28, 2016 reasonable and necessary?

24The OT report of Ms. Rogozinsky noted on pages 8-9 that this assessment will best determine how the applicant can return to her physical, vocational, and housekeeping tasks. The applicant continued to work following the accident without any restrictions up until her termination on June 16, 2017. Other than the applicant’s self-reporting to various assessors that she has not been able to perform some of her activities of daily living, this has not been evidenced within the CNRs of Dr. Halka. This treatment plan noted the assessment proposed would evaluate the applicant’s handgrip and pinch grip strength, and her range of motion for all affected joints. I am not persuaded by the evidence that the applicant suffered from a physical or functional impairment to warrant the functional abilities evaluation being reasonable and necessary. Therefore, I find this treatment plan is not reasonable and necessary.

Is the treatment plan for an orthopedic assessment in the amount of $2,198.00, submitted on January 10, 2017 reasonable and necessary?

25I find this treatment plan is not reasonable and necessary. This treatment plan was prepared by Dr. K. Efala, physician, and noted the purpose of the assessment was to determine if present up-to-date complaints were of a musculoskeletal nature. The applicant relies on the occupational therapy paper file review report of Ms. Rogozinsky, dated January 25, 2019, in which Ms. Rogozinsky opined an orthopedic assessment would assist with determining the applicant’s underlying musculoskeletal dysfunctions. However, although the CNRs of Dr. Halka up to March 31, 2017 note the applicant’s pain complaints, there is nothing noted within the CNRs up to this point relating to musculoskeletal dysfunction. I am persuaded by the physiatry IE report of Dr. Zabieliauskas dated February 9, 2017, which noted the applicant had reached maximum medical recovery and found no evidence of any physical limitations, or functional impairment. The applicant also continued to work at the time this treatment plan was submitted.

Is the treatment plan in the amount of $2,000.00 for a neurological assessment, submitted on February 7, 2017 reasonable and necessary?

26I find this treatment plan is not reasonable and necessary. The applicant has not produced evidence which suggests she suffers from a neurological impairment. The treatment plan was prepared by Dr. V. Prigozhikh, physician, to determine whether a neurological dysfunction exists, and identify which components of the neurological system are affected. The applicant relies on the opinion noted within Ms. Rogozinsky’s OT report, in which she noted the same reasons proposed within the treatment plan to support this treatment plan is reasonable and necessary. Ms. Rogozinsky also listed the “Associated Psychological Symptoms” noted within Dr. Di Fonzo’s chronic pain assessment report dated October 24, 2017. However, I note there was no evidence noted within Dr. Di Fonzo’s report of a neurological impairment and Dr. Di Fonzo recommended psychological/psychiatric intervention for the applicant. The CNR of Dr. Halka dated March 31, 2017 noted anxiety disorder but noted no depression, no change of mood, and normal thought process. Prior to this entry, the CNRs reflect the applicant last saw Dr. Halka on September 27, 2016. This treatment plan was assessed by paper review by Dr. Zabieliauskas and a report dated March 23, 2017¹³ was issued. Dr. Zabieliauskas concluded there was no evidence of any ongoing organic pathology attributable to the accident and noted the applicant was only taking Advil or Tylenol infrequently. Therefore, I find the applicant has not met her onus of establishing this treatment plan is reasonable and necessary.

Is the treatment plan in the amount of $1,300.00 for an attendant care needs assessment (Form 1), submitted on February 27, 2017 reasonable and necessary?

27I find this treatment is not reasonable and necessary. This treatment plan was prepared by R. Zakrzewski, OT, and the goals of this treatment plan were to reduce pain and return the applicant to her activities of daily living. The applicant relies on the opinion of Ms. Rogozinsky provided within her January 25, 2019 OT report that this treatment plan is both reasonable and necessary. I do not afford any weight to Ms. Rogozinsky’s opinion regarding this treatment plan as she has simply provided her interpretation of the Schedule regarding the performance of activates utilizing pacing or devices and that it should not subsequently exclude a person’s entitlement to a specified benefit under the Schedule. Ms. Rogozinsky further cited a decision by the Financial Services Commission of Ontario (“FSCO”) and a Superior Court decision to support her opinion that the attendant care assessment is reasonable and necessary. I find this is outside of Ms. Rogozinsky‘s area of expertise and I do not find it has assisted in determining whether this treatment plan is reasonable and necessary. An IE paper review was done by Ms. T. Cagampan, OT, dated April 24, 2017,¹⁴ who found that the attendant care needs assessment was not reasonable and necessary and relied on the opinion rendered within the physiatry reports of Dr. Zabieliauskas dated February 9, and March 23, 2017. These reports noted the applicant did not suffer from any ongoing physical impairment or physical limitations resulting from the accident and the applicant was safe to resume all aspects of her life which she engaged in prior to the accident. Further, Ms. Cagampan relied on the opinion rendered by Dr. Zabieliauskas that the applicant had reached maximum medical recovery, did not require any assistive devices, or further facility treatment, and that there was no evidence of any neurological impairment. I am persuaded by the opinion provided by Ms. Cagampan, which also relied on the opinions contained within the IE reports of Dr. Zabieliauskas. The conclusion reached by both of these assessors was that there was no evidence of any ongoing physical impairment, and subsequently the applicant was safe to resume all aspects of her life without any physical restrictions, or functional impairments. In the absence of competing evidence from the applicant which contradicts the opinions of both of these assessors, I do not find this treatment to be reasonable and necessary.

28I find the applicant has not met her onus of establishing that the treatment plans noted above are reasonable and necessary. Therefore, I find the applicant is not entitled to any of the above noted treatment plans.

29The applicant included two cases with its submissions but has not provided any submissions in relation to these two cases. I have reviewed both cases and I did not find them analogous to the case before me. One of the cases was from the Ontario Superior Court, Walker and Ritchie and the Wawanesa Mutual Insurance Company¹⁵. This case involved a tort claim and a statutory accident benefits claim for non-earner benefits, in which one of the plaintiffs sustained a severe traumatic brain injury. In the case before me, the evidence does not support the applicant sustained a traumatic brain injury and there is no claim for non-earner benefits. The second case produced by the applicant was from FSCO, Da Ponte and Motor Vehicle Accident Claims Fund¹⁶ in which the applicant was awarded non-earner, attendant care, and housekeeping benefits. The arbitrator found the applicant suffered from a functional impairment affecting the mobility of her right foot and ankle as a result of the accident. In the case before me, I did not find the applicant suffered from a functional impairment as a result of the injuries she sustained from the accident, and the benefits in dispute are not the same.

Is the applicant entitled to interest?

30As I have found no benefits are payable, there is no interest owing.

CONCLUSION

31I find the applicant has not met her onus of establishing on a balance of probabilities that she is entitled to receive an income replacement benefit in the amount of $400.00 per week from June 17 - September 27, 2017. The applicant has not established that the treatment plans in dispute are reasonable and necessary. As no benefits are payable, there is no interest owing. The applicant’s claim for all benefits is dismissed.

Footnotes

1. 1O. Reg. 34/10
2. 2CNRs of Dr. Halka, entries dated June 21, 2016, September 27, 2016, and March 15, 31, 2017, applicant’s document brief, tab 3E
3. 3Referral note dated October 4, 2016 from Dr. H. Bruner to see a psychologist, included with applicant’s submissions, Tab 3D
4. 4CNRs of Dr. Halka, entry dated June 30, 2017, applicant’s document brief, tab 3E
5. 5CNRs of Dr. Halka, entries dated July 4, August 15, September 13, 2017, applicant’s document brief, tab 3E
6. 6E-mail correspondence dated September 12, 2017 from person who issued the ROE at [her former employer], respondent’s written submissions, tab 2G.
7. 7Chronic pain assessment report of Dr. Di Fonzo dated October 24, 2017, respondent’s submissions, tab 2I
8. 8Physiatry IE report of Dr. R. Zabieliauskas, physiatrist, dated February 9, 2017, respondent’s submissions, tab H
9. 9Physiatry IE report of Dr. R. Zabieliauskas, dated December 12, 2017, respondent’s submissions, tab P
10. 10Psychological IE report of Dr. T. Seon, dated December 12, 2017, respondent’s submissions, tab Q
11. 11Occupational Therapy Paper File Review, by Deena Rogozinsky, dated January 25, 2019, applicant’s document brief, tab 3PP
12. 12Psychological Report, Dr. H. Raghuraman, dated November 28, 2016, applicant’s document brief, tab R
13. 13Paper Review IE Assessment by Dr. R. Zabieliauskas, dated March 23, 2017, respondent’s submissions, tab 2CC
14. 14Paper Review IE Assessment by Ms. T. Cagampan, dated April 24, 2017, respondent’s submissions, tab 2FF
15. 15Stephanie Suzanne Walker, Gary Walker, Rosemary Walker, Alyssa walker, and Christine Walker and Donald J. Ritchie, Harold Marcus Limited, and the Wawanesa Mutual Insurance Company, January 3, 2003, 3003 CanLii 17106 (ONSC)
16. 16Maria Da Ponte and Motor Vehicle Accident Claims Fund, FSCO A01-000486, October 28, 2002