S.E. v. Gore Mutual Insurance Company, 2019 CanLII 43887

Licence Appeal Tribunal

Tribunal File Number: 18-002468/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. E.

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: S.E. Mark Stoiko, Counsel

For the Respondent: Bruno De Sando, Accident Benefits Claims Supervisor Timothea Leung, Counsel

Interpreter (Arabic): Moni Ramsey (November 6th only) Mariam Serhan (November 6, 7 & 8th)

Court Reporter: Deb Fraser

HEARD IN PERSON: November 6, 7, & 8, 2018 (London, Ontario)

OVERVIEW

1The applicant, S.E., was 65-years old at the time she was injured in an automobile accident on June 2, 2014 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Gore Mutual Insurance Company (“Gore”), the respondent.

2Gore denied S.E.’s claims for a non-earner benefit and two treatment plans for physiotherapy and, as a result, S.E. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to an in-person hearing on November 6, 7, and 8, 2018, in London, Ontario followed by written closing submissions.

ISSUES IN DISPUTE

3The following issues are to be decided:

(i) Is S.E. entitled to a weekly non earner benefit (“NEB”) for the period from October 11, 2016 to date and ongoing, denied by Gore on October 12, 2016 on the basis that the applicant did not suffer a complete inability to carry on a normal life?

(ii) Is S.E. entitled to receive a medical benefit in the amount of $2,841.40 for physiotherapy, recommended by DMA Rehability in a treatment plan dated October 3, 2016, and denied by Gore on October 5, 2016 on the basis that the treatment is not reasonable and necessary?

(iii) Is S.E. entitled to receive a medical benefit in the amount of $2,095.25 for physiotherapy, recommended by Active Rehab (London) Inc. in a treatment plan submitted on October 4, 2017, and denied by Gore on October 12, 2017 on the basis that the treatment is not reasonable and necessary?

(iv) Is S.E. entitled to interest on any overdue payment of benefits?

RESULT

4Based on the evidence before me, I find that:

(i) S.E. did not suffer from a complete inability to carry on a normal life as a result of, and within 104 weeks of, the accident and, therefore, she is not entitled to a weekly NEB for the period of October 11, 2016 to date and ongoing;

(ii) S.E. is not entitled to the two physiotherapy treatments in dispute because the two treatment plans for physiotherapy are not reasonable and necessary; and

(iii) No interest is payable.

PROCEDURAL ISSUES

a) Motion to exclude documentary evidence by Dr. Mohamed Izzeldin

5On November 11, 2018, Gore served and filed a motion with the Tribunal seeking to exclude as evidence for the hearing all documents authored by Dr. Mohamed Izzeldin, including what the applicant refers to as a s. 25 report dated September 18, 2018, a note dated February 20, 2018 and clinical notes and records (“CNRs”) from October 2017 to March 2018.

6The grounds for Gore’s motion were as follows:

(i) Dr. Izzeldin’s licence to practice medicine was revoked by the College of Physicians and Surgeons of Ontario (“CPSO”), effective October 29, 2018 after Dr. Izzeldin pled no contest and was found to have committed professional misconduct, engaged in the sexual abuse of three patients and engaged in eight counts of disgraceful, dishonourable or unprofessional conduct by the CPSO’s disciplinary committee;

(ii) Gore argued that the documents authorized by Dr. Izzeldin were untrustworthy, unreliable and discredited by virtue of the CPSO’s disciplinary committee’s findings; and

(iii) If the Tribunal did not exclude Dr. Izzeldin’s documents on the basis of the CPSO’s disciplinary committee findings, Gore submitted in the alternative that no weight should be attributed to these documents because they are not relevant and have no probative value as Dr. Izzeldin was not S.E.’s treating practitioner at the relevant times for the benefits in dispute in this matter.

7Gore admits that it had not served and filed its motion in accordance with the timelines set out in Rule 15.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). Gore sought relief from these timelines by arguing that it had brought its motion as quickly as possible given that the CPSO’s decision was released on October 29, 2018 and discovered by Gore on November 3, 2018.

8S.E. contested Gore’s motion and argued the following:

(i) the motion should not be heard by the Tribunal because it was not served and filed in accordance with the timelines set out in Rule 15 of the Rules;

(ii) the motion was a tactical manoeuvre by Gore and was extremely prejudicial, as she had no time to prepare written responding materials;

(iii) the motion to address Gore’s alternative arguments of relevance and probative value could have been brought in accordance with Rule 15; and

(iv) the evidence should not be excluded because Dr. Izzeldin’s medical licence was not revoked because of his competence, his ability to make observations and to give opinions or to make treatment recommendations.

9I allowed the motion to proceed although it was not served and filed in accordance with the timelines set out in the Rules. I varied the timelines set out in Rule 15 for the service and filing of the motion as permitted by Rule 3.1, as the primary reason for Gore’s motion, which was the CPSO’s decision, was neither made nor discoverable 10 days in advance of the hearing. Furthermore, the circumstances giving rise to Gore’s request are unique and could not have be anticipated.

10Having allowed the motion to be heard, I denied Gore’s request and allowed the documents authored by Dr. Izzeldin into evidence subject to assigning them the appropriate weight. I am satisfied that the documents at issue are relevant to this proceeding as Dr. Izzeldin was at some point S.E.’s treating practitioner and authored a document referred to by S.E. as a “Section 25 Report.” Furthermore, Gore confirmed receipt of Dr. Izzeldin’s documents on October 3, 2018. No motions were commenced disputing their relevance or probative value at that time, which would have been in compliance with the timelines set out in the Rules.¹

b) S.E.’s Request to Add an Issue

11During his opening submissions, S.E. requested to add the following issue to the issues in dispute, which was opposed by Gore:

Is S.E. entitled to payment for the cost of an examination in the amount of $80.00 for the document referred to by S.E. as a “Section 25 Report,” which was completed by Dr. Mohamed Izzeldin, dated September 18, 2018?

12Having heard the submissions of the parties, I denied S.E.’s request.

13S.E. made no substantive submissions as to why this issue should be added to the list of issues to be determined. Rather, S.E.’s submissions were on the merits of this issue itself. The matter that needed to be determined at this time was whether or not the issue should be added, not a determination of the issue on its merits. S.E. also failed to offer an explanation for her late request to add the issue.

14S.E. referred to paragraph 4 of Adjudicator Maedel’s August 23, 2018 Motion Order and argued that his mention of section 25 in that paragraph made it clear that the reports were permitted pursuant to section 25 of the Schedule, which deals with the costs of examinations.

15Gore opposed the request to add the issue in dispute as S.E. had several other opportunities to request to add the issue to the issues in dispute for determination at this hearing but failed to do so. For instance, S.E. did not request the issue to be added at the case conference or in her July 23, 2018 motion that specifically dealt with S.E.’s request to submit reports pursuant to section 25 of the Schedule. Gore also argued that it would be prejudiced by adding this issue at this time because it had not included specific authorities in its materials to address S.E.’s interpretation of section 25, which it did not agree with.

16After considering the submissions of the parties and the Rules, I did not grant S.E.’s request to add the new issue to the issues in dispute for the following reasons:

(i) I do not agree with S.E.’s interpretation of paragraph 4 of Adjudicator Maedel’s August 23, 2018 Motion Order. This paragraph outlines the request that S.E. sought at the motion, not any orders made by Adjudicator Maedel. Further, in paragraph 6 of Adjudicator Maedel’s Order, he only refers to “medical reports,” as opposed to section 25 reports. Although S.E. requests that I read “medical reports” in this paragraph in conjunction with section 25, it is clear that if Adjudicator Maedel intended to include the words “Section 25” in his Order, it was open for him to do so and he clearly did not;

(ii) S.E. did not bring a motion in accordance with the timelines set out in Rule 15 and there is no similar unanticipated or extraordinary circumstance that would require me to vary the timelines as I did with the other preliminary issue. The document authored by Dr. Izzeldin that is referred to by S.E. as a “Section 25 Report” is dated September 18, 2018. The invoice for this document is dated September 20, 2108. Clearly, the report and the invoice were drafted well in advance of the hearing date and, as such, S.E. had ample time to comply with the timelines set out in Rule 15; and

(iii) to allow the issue to be added at this stage in the proceedings would be highly prejudicial to Gore as it was not in a position to be able to respond to the merits of the issue and, as a result, an adjournment may be requested or the hearing may be extended to allow Gore to effectively participate in the entirety of the proceedings. Any resulting delays of this hearing would be contrary to Rule 3.1 to ensure a timely resolution of this matter.

ANALYSIS

Non Earner Benefits (NEBs)

a) Entitlement

17I find that S.E. does not meet the eligibility test for entitlement to NEBs for the period of October 11, 2016 to date and ongoing.

18The test for entitlement to a NEB is set out in section 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

19Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

20“Substantially all” is not defined in the Schedule; however, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”²

21Both parties cited Heath v. Economical Mutual Insurance Company,³ wherein the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.⁴

22Heath also outlines several principles for the determination of entitlement to NEBs as follows:

(i) there must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

(ii) the applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

(iii) all of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

(iv) the applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);

(v) “engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and,

(vi) if pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.⁵

23S.E. testified at the hearing and described her pre-accident life as follows:

• She did not work in the 5 years preceding the accident;
• She prepared meals and cooked for her extended family;
• She went shopping (including grocery shopping) and to doctor visits;
• She drove her husband to his doctor visits and helped him into vehicles as he used a walker;
• She took her husband to the barber shop;
• She washed dishes, swept and mopped floors and did laundry;
• She visited her children at their homes;
• She made beds and changed linens independently;
• She enjoyed spending time in her backyard and planted herbs; and
• She attended farms to pick fruit and vegetables with her extended family.

24S.E. also testified that the activities that were important to her in the year before the accident were socializing with friends, cooking and visiting with family, babysitting her grandchildren and going to the mall with her unwell husband.

25In her testimony, S.E. described her post-accident life as follows:

• She has not attended farms with her extended family;
• She is unable to independently take her husband to his doctors’ appointments and that her son or daughter takes him instead;
• She is able to make breakfast but does not cook as much as before;
• She cannot cook for her extended family;
• She is not able to do the dishes;
• She is not able to sweep and mop the floors as her friend, son and daughter now complete these tasks for her;
• She is not able to clean the bathroom;
• Her son and daughter now do the laundry, dishes and make the beds;
• She is no longer independent with grocery shopping as her daughter usually accompanies her; and
• She has not taken her husband to the mall since the accident.

26S.E. testified that the reason that she could no longer participate in these activities was because of her pain and her mood, both of which affected her ability to enjoy activities.

27On cross-examination, however, S.E. confirmed the following:

• She was not independently caring for her ailing husband prior to the accident as she had assistance from Community Care Access Centre (“CCAC”);
• Although not immediately after the accident, she returned to driving but does not drive long distances;
• She was able to ride as a passenger in a vehicle in 2015, 2016 and presently;
• She does grocery shopping alone, but she mostly grocery shops with her daughter;
• She is able to make light meals;
• She attempts housework but takes pain medications afterwards and needs to relax;
• She was able to do the dishes in 2016;
• She was able to walk for several blocks in 2016;
• She was able to go to her medical appointments in 2016 and 2017;
• She is able to travel to restaurants and pick-up takeout food;
• She was able to do her banking in 2017;
• She was able to go to the mall in 2016; and
• She could not recall how often she would go to farms in the year prior to the accident.

28S.E.’s daughter also testified at the hearing. She testified that she sees her mother every day and corroborated most of S.E.’s testimony about S.E.’s pre-accident activities. S.E.’s daughter also confirmed that S.E. was more independent in the two years prior to the accident and that her mood has deteriorated after the accident. S.E.’s daughter also confirmed that she was not with her mother all hours of every day.

29Although S.E. and her daughter provided a comparison of S.E.’s pre- and post-accident activities, their description of these activities are very broad and lacked details with respect to the frequency of the activities that were completed before the accident. Additionally, S.E.’s testimony was contradictory at times. For example, she testified that she could not do the dishes after the accident but agreed on cross-examination that she was able to do the dishes in 2016. Further, while she testified that going to farms with her extended family was an activity that was very important to her, she could not recall how many times she participated in this activity in the year prior to the accident.

30S.E. also submitted very little documentary evidence that supports her claim for NEBs. For example, S.E. submitted a Disability Certificate (OCF-3) completed by Ms. Jennifer Sutcliffe, physiotherapist, dated June 16, 2014⁶ in which Ms. Sutcliffe reports that S.E. does suffer a complete inability to carry on a normal life. However, Ms. Sutcliffe notes that the anticipated duration of S.E.’s disability was 5 to 8 weeks, which is a period of time that expired long before the period in dispute for NEBs commenced. S.E. submitted no other OCF-3 as evidence.

31S.E. also relied upon a Treatment and Assessment Plan (OCF-18) dated October 3, 2016, completed by Ms. Denise Vandermeulen, physiotherapist,⁷ in which Ms. Vandermeulen answers “yes” to whether S.E.’s injuries affect her ability to carry out her activities of a normal life. However, there is no comparison of S.E.’s pre- and post- accident activities in this document, which was also completed from an interview with S.E.’s daughter due to a language barrier with S.E. I also assign little weight to this document as Ms. Vandermeulen’s statements are contradictory at times. For instance, Ms. Vandermeulen responds “yes” to whether S.E.’s injuries affect her ability to carry out her tasks of employment; however, Ms. Vandermeulen later indicates that S.E. is “not employed.” It is undisputed that S.E. was not working at the time of the accident and had not been for quite some time prior to the accident.

32While S.E. submitted CNRs, imaging reports and other treatment plans, these documents only spoke to S.E.’s injuries and did not address her entitlement to NEBs.

33The only other documents that report on S.E.’s activities of normal life are authored by Ms. Martha Richard, physiotherapist. Ms. Richard prepared a physiotherapy consultation report dated April 27, 2018⁸ and a physiotherapy assessment report dated September 12, 2018,⁹ which are both dated over 18 months after the beginning of the period in dispute for which S.E. is claiming entitlement to NEBs. These two documents were also prepared to address S.E.’s entitlement to the physiotherapy treatment plans in dispute rather than specifically addressing S.E.’s entitlement to NEBs. As such, even though these documents commented generally on S.E.’s activities of daily living, neither addressed the test to support S.E.’s entitlement to NEBs.

34In contrast, Gore submitted the IE reports of Dr. Asha Bhardwaj, physiatrist, Mr. Atul Kaul, occupational therapist, and Dr. Lawrence Jerome, psychiatrist, which all address whether S.E. is entitled to NEBs. The opinion of all three assessors is that S.E. did not suffer from a complete inability to carry on a normal life as a result of the accident. The conclusions contained in these IE reports support S.E. not meeting the requirements under s. 12 of the Schedule to qualify for NEBs.

35While S.E. made several submissions attempting to discredit the three IE reports and the in-person testimony of Dr. Bhardwaj and Mr. Kaul on the basis that the assessors did not observe S.E. completing any household activities and, instead, relied upon simulations in arriving at their conclusions, the IE assessor’s conclusions remain unrefuted by any medical evidence submitted by S.E.

36Furthermore, Gore did submit direct observations of S.E.’s daily activities via surveillance evidence. S.E. objected to the admissibility of three surveillance reports on the basis that Gore did not summons the investigator to testify at the hearing. I allowed the surveillance into evidence and agreed with Gore that it served and filed the three surveillance reports in accordance with the July 25, 2018 Tribunal Order. As such, S.E. had ample time to request a summons to be able to cross-examine the investigator if she wished to do so.

37Moreover, I found that the surveillance evidence was relevant as it reported on S.E.’s activities for 4 days in October 2015, 4 days in February 2016, 1 day in July 2016 and 3 days in August 2016. On the dates, S.E. was observed walking, bending, independently driving (including independently driving an elderly male to medical buildings), loading a walker into a vehicle, picking-up takeout food, attending a religious centre, carrying items including a grocery bag and a purse, going grocery shopping, to Costco, a farmer’s market and a mall, pushing a shopping cart and loading groceries into a vehicle. In my opinion, S.E.’s activities and movements observed in the surveillance do not portray an individual suffering from a complete inability to carry on a normal life and raise credibility issues with respect to S.E. and her daughter’s testimony which is particularly important when making a determination on entitlement to NEBs.

38Based on the generalized testimony from S.E. and her daughter, the lack of medical documents supporting her entitlement to NEBs, the surveillance evidence and the unrefuted IEs relied upon by Gore, I find that S.E. has failed to meet her onus of proving on a balance of probabilities that she has suffered a complete inability to carry on a normal life as a result of the accident. Therefore, I do not find that S.E. is entitled to NEBs for the period of October 11, 2016 to date and ongoing.

b) Quantum

39As I have determined that S.E. is not entitled to NEBs for the period of October 11, 2016 to date and ongoing, there is no need to make any determination as to the quantum of NEBs.

40Sections 14 and 15 of the Schedule provide that the insurer shall pay for medical benefits to, or on behalf of, an applicant so long as:

(i) The applicant sustains an impairment as a result of an accident; and

(ii) The medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

41S.E. bears the onus of proving her entitlement to the claimed treatment plans for physiotherapy are both reasonable and necessary on a balance of probabilities.¹⁰

a) OCF-18 dated October 3, 2016 – Physiotherapy from DMA Rehability

42I find that S.E. has not met her onus in proving, on a balance of probabilities, that the treatment and assessment plan dated October 3, 2016 is both reasonable and necessary.

43This treatment plan in dispute was completed by Ms. Denise Vandermeulen, physiotherapist, and sought coverage for documentation, support activity generally and a claim form, a total body assessment, planning, service, exercise equipment and other goods. The goals of the treatment plan are pain reduction, increased range of motion, increased strength and to provide further recommendations following the assessment. The functional goals of the treatment plan include providing input for S.E.’s exercise program including making recommendations for her pool program. In additional comments, Ms. Vandermeulen states that the clinic based intervention would include home exercise recommendations, provision of education with respect to self-management of symptoms, education regarding ergonomics for task completion, pain physiology and hurt vs. harm principles. Ms. Vandermeulen states that her goal is to supervise S.E. in a pool-based program which would be under the direction of a kinesiologist and that membership to a pool facility would be required.

44S.E. relies upon the letter from Dr. Izzeldin dated September 18, 2018 to demonstrate the reasonableness and necessity of this treatment plan as Dr. Izzledin states that physiotherapy treatment will achieve the goals of pain reduction, increase in strength, increase in range of motion and activities of normal living. Dr. Izzeldin goes on to write that physiotherapy can maintain and even improve S.E.’s present condition and prevent further deterioration of her present condition.

45In addition to agreeing with Gore that Dr. Izzeldin did not specifically address this treatment plan in dispute in his letter and, instead, only spoke generally to future physiotherapy, I place no weight on Dr. Izzeldin’s recommendations or opinions. While I allowed Dr. Izzeldin’s documents into evidence and I am not bound by decisions of the CPSO’s disciplinary committee, I assign no weight to his evidence for the primary reasons that Dr. Izzeldin pleads no contest to the very serious allegations against him including disgraceful, dishonourable and unprofessional conduct. Quite simply, I have no basis that the documents authored by Dr. Izzeldin are reliable.

46S.E. also relied upon Ms. Richard’s physiotherapy assessment report dated September 12, 2018 to support the reasonableness and necessity of this treatment plan. This report, however, was not in existence at the time the treatment plan was submitted to Gore for consideration and, in fact, was prepared almost two years after the submission of the OCF-18. For these reasons, I afford it little weight in determining this issue in dispute.

47While I appreciate S.E.’s testimony that aqua therapy, which she began approximately three months prior to the hearing, was reducing her pain for a few hours following her therapy and that she was of the opinion that had she received physiotherapy in 2016 that it would have benefited her, I agree with Gore that there is no medical evidence supporting the reasonableness and necessity of this treatment plan at the time it was submitted.

48In contrast, Gore relies upon two medical reports that were authored on or about the date of the treatment plan in dispute. Mr. Atul Kaul, occupational therapist authored an In-Home Occupational Therapy Insurer’s Examination Report, dated July 12, 2016.¹¹ Although this report was completed to determine S.E.’s entitlement to NEBs, Mr. Kaul states that S.E. would benefit from a pool-based treatment routine. More specifically, Mr. Kaul states, “she does have documented arthritic changes to her body and a pool therapy [program] would provide her optimum relief for pain tolerance.”¹² When asked during his testimony, however, if the recommended pool therapy was to treat S.E.’s accident related pain, Mr. Kaul states that causation is not in his domain and that it does not factor into his recommendations.

49The second report, Physiatry Insurer’s Examination Report dated August 25, 2016,¹³ was authored by Dr. Asha Bhardwaj, physiatrist. In her report, Dr. Bhardwaj concluded that to the date of her report, S.E. had an appropriate course of physiotherapy for the injuries sustained in the motor vehicle collision and that she should continue with her home exercise program.¹⁴ Dr. Bhardwaj also noted that because of underlying degenerative changes and arthritis, S.E. is going to experience some ongoing pain and symptoms.¹⁵

50I find that S.E. has not met her onus in proving on a balance of probabilities that the treatment and assessment plan dated October 3, 2016 is both reasonable and necessary because although the treatment plan speaks to a pool-based program, which appeared to be supported by Mr. Kaul although he made no finding as to causation of S.E.’s pain, no funding was sought for any aqua therapy. Additionally, no evidence was provided as to the requirement of having Ms. Vandermeulen supervise such treatment which, in my opinion, appears to be a duplication. No evidence was submitted either to demonstrate the necessity of having Ms. Vandermeulen provide input to S.E.’s existing home exercise program. Ultimately, S.E. tendered no credible medical evidence to support the treatment plan at the time it was submitted for consideration whereas Gore provided Dr. Bhardwaj’s report, which did not support any further physiotherapy and, rather, recommended that S.E. continue with her existing home exercise program.

b) OCF-18 dated August 28, 2017 – Physiotherapy from Active Rehab (London) Inc.

51I find that S.E. has not met her onus in proving on a balance of probabilities that the treatment and assessment plan submitted October 4, 2017 is reasonable and necessary.

52This treatment plan in dispute was completed by Kevin Lei, physiotherapist, and was dated August 28, 2017. The treatment plan seeks funding for documentation, support activity, therapy (multiple body sites) and a total body assessment. The goals of the treatment plan are pain reduction, increased range of motion, increased strength, to improve quality of sleep, decreased intensity and frequency of symptoms re-aggravation and to return S.E. to activities of normal living. There were no attachments to this treatment plan.

53S.E. relies upon the same evidence and arguments as she did for the reasonableness and necessity of the treatment and assessment plan dated October 3, 2016 to support her position that this treatment plan is also reasonable and necessary. S.E. again submitted that aqua therapy assists her pain and benefits her mood, which she confirmed during her testimony and was also supported by her daughter’s testimony. This treatment plan, however, did not seek funding for any aqua therapy.

54S.E. again also relies upon Ms. Richard’s physiotherapy assessment report dated September 12, 2018 to support her claim for this treatment plan. Again, while this report is closer in time to when this treatment plan was submitted, it was still authored over a year later. I, again, give little weight to this report as it was not in existence at the time the treatment plan was submitted to Gore for consideration. Furthermore, I understand that Gore has approved a March 3, 2018 treatment plan for an aqua therapy program with Ms. Richards, which at the time of the hearing, had not been exhausted.

55In arguing that S.E. had not met her burden of proving on a balance of probabilities that the treatment plan in dispute was both reasonable and necessary, Gore relied upon a second Physiatry Insurer’s Examination report by Dr. Bhardwaj, dated November 29, 2017.¹⁶ In her report, Dr. Bhardwaj concluded that there was no indication for any further facility-based treatment, as at the last assessment, Dr. Bhardwaj determined that S.E. had reached maximum medical improvement in relation to the accident.¹⁷ Dr. Bhardwaj also concluded that this treatment plan was not reasonable and necessary as S.E. was, at that time, three and a half years post-soft tissue injury and clarified in her testimony that this meant she did not expect any further recovery for S.E. beyond 3-years post-accident.¹⁸ Dr. Bhardwaj also reported that while there was no need for further facility-based treatment, she did recommend that S.E. continue with her self-directed home exercise program and noted that S.E. would benefit from exercises in water considering she has widespread degenerative changes in her joints.¹⁹

56Therefore, I find on a balance of probabilities that the treatment and assessment plan submitted October 4, 2017 is not reasonable and necessary because S.E. has not submitted any credible medical evidence in support of the treatment plan that is dated in or about the time that it was submitted to Gore. Further, while there may be some medical support for aqua therapy, no funding is sought in this treatment plan for aqua therapy.

Interest

57Because I have found that there are no benefits or costs that are overdue, no interest is payable.

CONCLUSION

58For the reasons outlined above, I find:

(i) S.E. is not entitled to NEBs for the period in dispute of October 11, 2016 to date and ongoing because she did not suffer from a complete inability to carry on a normal life as a result of the accident;

(ii) S.E. is not entitled to the two physiotherapy treatments in dispute because the two treatment plans for physiotherapy are not reasonable and necessary;

(iii) S.E. is not entitled to any interest as there are no payments overdue; and

(iv) The application is dismissed.

Footnotes

1. 1Given my ruling on the motion, I offered Gore the opportunity to have a summons issued to cross-examine Dr. Izzeldin. Gore declined my offer.
2. 216-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10.
3. 32009 ONCA 391 ("Heath").
4. 4Ibid. at para. 50.
5. 5Ibid.
6. 6List of the Applicant’s Documents dated September 30, 2018, tab 17.
7. 7List of the Applicant’s Documents dated September 30, 2018, tab 16.
8. 8List of the Applicant’s Documents dated September 30, 2018, tab 3.
9. 9List of the Applicant’s Documents dated September 30, 2018, tab 2.
10. 10Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.) at paras. 20-24.
11. 11Respondent’s Document Brief, tab 7a.
12. 12Ibid. at page 9.
13. 13Respondent’s Document Brief, tab 7b.
14. 14Ibid. at page 11.
15. 15Ibid. at page 12.
16. 16Respondent’s Document Brief, tab 14.
17. 17Ibid. at page 10.
18. 18Ibid. at page 11.
19. 19Ibid. at page 12.