A.A. v. Unifund Assurance Company, 2020 CanLII 37589

A.A. v. Unifund Assurance Company

Citation: A.A. vs. Unifund Assurance Company, 2020 ONLAT 18-008999/AABS and 19-006856/AABS

Released: May 21, 2020

Tribunal File Nos.: 18-008999/AABS and 19-006856/AABS

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

Between:

A.A.

Applicant

and

Unifund Assurance Company

Respondent

AMENDED DECISION

PANEL:

Nidhi Punyarthi, Adjudicator

APPEARANCES:

For the Applicant:

A.A., Applicant

Frank McNally, Counsel

Rita Roncarlo, Litigation Clerk

For the Respondent:

Arthur Camporese, Counsel

HEARD:

In person on October 9, 10, and 11, 2019

OVERVIEW

1On November 1, 2012, the applicant got into a car accident. She applied to the respondent for benefits under the Statutory Accident Benefits Schedule – Effective September 2010 (“Schedule”). The respondent denied her claim for benefits, and she applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

2I presided over the hearing in this matter.

ISSUES IN DISPUTE

3The issues in dispute are as follows:

a. Is the applicant entitled to an attendant care benefit in the amount of $448.91 per month from October 9, 2019 to date and ongoing?

b. Is the applicant entitled to a medical benefit in the amount of $1,144 for optometric services recommended by Dr. Wareham in an OCF-18 submitted on February 2, 2018 and denied on May 31, 2018?

c. Is the applicant entitled to a medical benefit in the amount of $8,218 for hearing aid services recommended by Dr. Taylor in an OCF-18 submitted on June 27, 2018 and denied on July 10, 2018?

d. Is the applicant entitled to a medical benefit incurred in the amount of $7,725.90 for services provided by Whole Therapy during the period before the applicant was deemed to have suffered a catastrophic impairment?

e. Is the applicant entitled to a medical benefit incurred in the amount of $14,700 for services provided by Susan Kim, psychotherapist, during the period before the applicant was deemed to have suffered a catastrophic impairment?

f. Is the applicant entitled to a medical benefit in the amount of $1,480 for pelvic floor physiotherapy services recommended by Arifa Tajbhal in an OCF-18 submitted on March 29, 2018 and denied on July 4, 2018?

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

RESULT

4I find that:

a. The applicant is entitled to attendant care benefits as claimed, but in a reduced amount per month. The parties are to calculate this final monthly amount based on the deductions ordered in my reasons below.

b. The applicant is entitled to the Whole Therapy expenses claimed.

c. The applicant is entitled to interest on the attendant care benefits and the Whole Therapy expenses.

d. The applicant is not entitled to the other medical benefits listed as issues for this hearing.

ANALYSIS

A. Attendant Care Benefits

5At minimum, an insured person who claims attendant care benefits under the Schedule must meet two criteria: they must have an impairment as a result of an accident,¹ and the expenses claimed must be reasonable and necessary.²

6If the insured person has been deemed to be catastrophically impaired, as in this case, additional conditions apply. For example, the same time limits do not apply for receiving the attendant care benefit,³ and amount of the benefit is limited to $6,000 per month.⁴ For the reasons given below, I find that the applicant has an impairment as a result of the accident for the purposes of receiving the attendant care benefit. However, only a portion of her expenses claimed for attendant care are reasonable and necessary.

(i) Causation

7An evidentiary approach must be taken to determining causation.⁵

8Based on my analysis of the evidence in this case, I find that the applicant’s claim for attendant care benefits was caused by the accident. The following paragraphs set out my reasons for this finding.

9In the respondent’s view, the applicant has already met the test for the following designations/benefits under the Schedule:

a. A catastrophic impairment designation;

b. Income replacement benefits payable 104 weeks after the accident;

c. A housekeeping services benefit;

d. Psychological therapy; and

e. Occupational therapy.

10At the time of the hearing, the parties agreed that the applicant continued to qualify for these benefits.

11Each of these benefits requires that the applicant meet a similar, but certainly not the same, causation test. In other words, she must have sustained an impairment as a result of the accident in order to access each designation or benefit. Since each designation or benefit is different, the rationale for the applicant’s entitlement to each designation or benefit is different.

12From a functional perspective, however, there may be a common theme in the applicant’s qualification for each of the above-listed items.

13The applicant before me is claiming attendant care benefits. The bulk of this claim pertains to assistance with meal preparation. She claims she is unable to prepare meals due to physical, psychological, and cognitive impairments from the accident.

14The tests for a catastrophic impairment designation and the other benefits that the applicant already qualifies for are difficult to meet. For the applicant to have met these tests, the respondent must have had compelling evidence before it. It is possible to infer that, if the applicant continues to meet the tests for the listed designation and benefits under the Schedule, she may also have a need for some functional assistance in her home.

15The following medical and functional evidence was also before me:

a. A diagnosis of chronic pain syndrome by Dr. Smith from February 2017. The respondent does not challenge the foundation of this diagnosis.

b. A diagnosis of PTSD, somatic symptom disorder, and major depressive disorder by Drs. Smith and Moustgaard⁶ in April and November 2017. The respondent challenges the causation of these conditions from the accident because the incorrect causation test was applied and because applicant had PTSD and depression before the accident. However, on the record before me, there is a consistency between the opinion in these reports and the balance of the evidence set out in this list. I also found the applicant to be strong and consistent in her responses to cross-examination challenges on this point. Upon considering the evidence as a whole, I am prepared to accept that there was a possible aggravation of these conditions due to the accident.

c. A diagnosis of a possible traumatic brain injury by Dr. Quon from September 2018. The respondent does not challenge the foundation of this diagnosis.

d. Opinions of three occupational therapists (OTs) who also testified at the hearing: two who supported the applicant’s claim, and one who opined that the applicant was not entitled to attendant care benefits. The applicant reported challenges with meal preparation and motivation to all three OTs.

16Taken individually, each of these aspects of the evidence does not conclusively tell me that the applicant needs attendant care benefits as a result of the accident. Collectively, however, they help tip the balance in terms of the larger picture of the applicant’s impairments from the accident.

17There is a consistency between:

a. The evidence that the applicant has chronic pain syndrome, possible aggravated psychological conditions, and a possible traumatic brain injury due to the accident; and

b. The applicant’s testimony that she loses her energy while preparing meals and needs some assistance.

18In other words, it is likely that the applicant needs some meal preparation assistance because she has these conditions. Her testimony was that she experiences challenges with the tasks of planning her groceries and meals and standing to prepare home-made meals. On a balance of probabilities, I find that testimony to be reasonably supported by the medical and functional evidence listed above.

19I also have surveillance and investigation evidence that challenges the applicant’s claimed need for attendant care benefits. This evidence does not fully displace the evidence that weighs in the applicant’s favour, including the respondent’s acceptance of the applicant’s catastrophic designation and of her entitlement to certain other benefits. However, this evidence has persuaded me to reduce the amount of the attendant care benefit. I will explain this in more detail in the next section.

20Upon considering the totality of the evidence before me, I find, on a balance of probabilities, that the applicant has met the causation test for the purposes of receiving the attendant care benefit. In other words, it is likely that her claim for attendant care benefits arises from impairments she suffered due to the accident.

(ii) Are the expenses claimed reasonable and necessary?

a. Meal Preparation

21The bulk of the expenses claimed are for meal preparation. Specifically, the applicant requests 1 hour per day, 7 days a week, for meal preparation.⁷

22The applicant relies on the following evidence:

a. Evidence that the applicant possibly has a traumatic brain injury from the accident, as noted by Dr. Quon at the [the Hospital] in September 2018.

b. Evidence that the applicant may have a cognitive impairment from the accident, as noted by Dr. Moustgaard in 2017.

c. Evidence from Ms. Legassick (applicant’s first OT) that the applicant’s barriers to achieving meal preparation goals include her lack of energy, motivation, fatigue levels and pain.

d. Evidence from Ms. McMullan (applicant’s second OT) that the applicant is unable to make dinners in the evenings if she makes other simple meals earlier. Ms. McMullan had recommended a food ingredients delivery service like Hello Fresh, but it had been rejected by the respondent as not reasonable and not necessary.

e. The applicant’s testimony that her activity levels directly affect her pain, and that she has to conserve her energy. She also testified that engaging in one activity means sacrificing another, and that meal preparation is one of the sacrificed activities. She testified that “food is the first to go.”

f. An admission from the respondent’s OT that he did not consider the impact of cognitive and behavioural factors on function when the applicable guidelines require him to do so.

23In disputing the applicant’s claim for attendant care benefits, the respondent relies on the following evidence:

a. Evidence from surveillance of the applicant, which shows that she is able to withstand much greater physical tolerances in activities such as taking out the garbage, going to yoga, walking with a chair, bending, crouching and lifting items from the ground.

b. Evidence from investigation of the applicant, which shows that she is actively involved in her community, and engages in spiritual readings, which the respondent submits involve more cognitive effort than she purports to have.

c. Evidence from the applicant’s cross-examination that she went on a number of international vacations after the accident, including to Machu Picchu.

d. Evidence from the applicant’s cross-examination that she cares for two dogs: a Labrador weighing 100 lbs and a Pug weighing 27-28 lbs.

e. Evidence from the applicant’s first OT who reported that the applicant’s symptoms had improved by the time her engagement ended in 2018.

f. Evidence from the applicant’s second OT who reported that she demonstrated good range of motion tolerances.

24The applicant does not dispute the contents of the surveillance evidence. She submits that it is consistent with her evidence that she has good days and bad days. According to the applicant:

a. The surveillance evidence only shows a snapshot of her day-to-day activities.

b. Once she engages in an activity, she loses her energy to engage in another activity.

c. The surveillance evidence does not challenge her position that she has a need for energy conservation following the accident.

25Based on my review, the surveillance evidence and admissions from cross-examination do not displace the more probable finding that the applicant has a need for energy conservation due to her impairments from the accident. As I have previously found, the applicant was diagnosed with chronic pain and possible traumatic brain injury from the accident. It is also likely that the accident aggravated her pre-existing psychological conditions of PTSD and depression. Given these findings on the evidence, it is likely that once the applicant engages in an activity, she loses energy for another. If she is able to manage better on some days and engage in some activities, that takes energy away from other activities she could be doing. If she prepares a meal, she cannot prepare other meals soon afterwards. In my view, these are reasonable inferences to make on the evidence.

26Therefore, I find that it is reasonable and necessary for the applicant to receive an attendant care benefit in the form of some meal preparation assistance during the week. This will, importantly, help her with conserving energy and managing the combination of her physical and emotional impairments from the accident.

27This being said, I find that there is some basis for the respondent’s submission that the applicant’s claim for attendant care benefits is inconsistent with her actual abilities. I find the surveillance evidence and admissions on cross-examination compelling enough to reduce the amount of the benefit that the applicant has claimed. In the following paragraphs, I will explain how I arrived at a reduction of the applicant’s claim for meal preparation.

28The applicant has claimed 1 hour of meal preparation assistance per day, 7 days a week. I do not find this to be reasonable.

29Even before the accident, the applicant did not prepare meals 7 days a week. Instead, she used to do so 5 days a week. She testified that before the accident, there were days when she did not feel like cooking. She did not always follow a healthy lifestyle then, likely due to her pre-existing psychological condition.

30After the accident, during good weeks, she prepared meals 3-4 times a week. During bad weeks, she prepared meals 1-2 times a week.

31This testimony from the applicant regarding her good and bad weeks coincides with the surveillance evidence and the admissions on cross-examination. On the basis of this evidence, I find that it is reasonable and necessary to grant the applicant meal preparation assistance based on the average of her good and bad weeks.

32For the ease of the calculation, I have decided to round the meal preparation frequency to whole numbers. Considering the consumer protection objective of the Schedule, I have given some leeway to the applicant and assumed the worst-case scenario for both good and bad weeks.

33Therefore, for the purposes of my calculation, the applicant can prepare meals 3 times a week during good weeks and once a week during bad weeks. Given her pre-accident baseline of making meals 5 times a week, she now needs help on the remaining days of the week, being twice a week during good weeks (5 – 3 = 2), and 4 times a week during bad weeks (5 - 1 = 4).

34On average, then, she needs help with preparing meals 3 times a week after the accident: (2 + 4) / 2 = 3.

35In my view, 3 days a week is a reasonable reduction from the applicant’s claim for meal preparation assistance on all 7 days in the week.

36I find the reduced frequency of 3 days a week to be supported in the applicant’s own testimony as well as the surveillance and investigation evidence that was before me. Based on the surveillance and investigation evidence, the applicant is, for the most part, able to manage her symptoms and engage in a number of activities. At the same time, based on the functional and medical evidence, she has to use energy conservation techniques and continues to experience impairments from the accident that impede her ability to prepare meals each day independently.

373 days of assistance per week is a reasonable midpoint position between the applicant’s good and bad weeks after the accident. In my view, this number also represents a satisfactory balance given the evidence that supports the applicant’s claim for this benefit as well as the evidence that challenges this same claim. 3 days of assistance will enable the applicant to save some of her energy. Batch cooking is also possible so that dinners for some of the other days of the week are addressed at the same time.

38The same daily amount (1 hour) as recommended by Ms. McMullan will apply, as there is no evidence or argument before me to challenge the daily amount or rate.

39For these reasons, I find that the applicant is entitled to receive meal preparation assistance in the amount of 60 minutes per day, 3 days per week, for a total of 60 x 3 = 180 minutes per week.

b. Bathroom and Bedroom

40The applicant also claims 3 minutes per day for cleaning the bathroom, and 10 minutes per day for bedroom hygiene. Specifically, she claims that she needs help cleaning the tub and changing the sheets.

41As the respondent points out, the applicant’s second OT, Ms. McMullan, observed range of motion and strength tolerances that were consistent with her ability to engage in the tasks of cleaning the tub and changing the sheets.

42On the basis of the evidence (summarized in the previous section on meal preparation), I am satisfied that the applicant can engage in these activities of cleaning her bathroom and preparing her bedroom. Due to her impairments from the accident, she may need to pace herself or otherwise manage her energy. I am not persuaded that she needs the daily attendant care assistance as claimed.

43Accordingly, the applicant is not entitled to receive assistance for cleaning the bathroom or for bedroom hygiene.

c. Medication Management

44The applicant claims 3 minutes of attendant care per day for cuing to help with managing her medications.

45The applicant testified that, at present, she takes Trazadone at night, Gabapentin 3 times a day, and Tramadol 1-2 times per day. She does not have difficulty remembering her night time Trazadone.

46When asked under cross-examination if she could set an alarm on her phone to remember taking the other medications, the applicant replied that she would benefit from setting an alarm on her phone. She testified that it would be challenging if the alarm went off during her meeting and she would then be unable to take her medication on time. It was suggested to her that she could get around this problem by scheduling the alarm at a time outside of her meeting.

47Ms. Legassick’s report from April 24, 2018 indicated that the applicant was benefiting from using smartphone alerts.

48Overall, the evidence does not persuade me that the applicant’s impairments are at a level where she needs 3 minutes of daily cuing from an individual to take her medications. Alerts and alarms on her phone should be sufficient, and they can be organized in such a way that they do not interrupt any meetings or appointments that she is at.

49Therefore, I find that the applicant is not entitled to assistance for medication management as claimed.

50In conclusion, the total amount of the attendant care benefit is to be reduced for the reasons given in the previous paragraphs. Out of the total claim, the only portion I find to be reasonable and necessary is meal preparation, 3 days a week, 60 minutes per day. I will leave the final calculation to the parties. In accordance with the parties’ agreement, this benefit is to be paid from October 9, 2019 to date and ongoing.

B. Other Medical and Rehabilitation Benefits Claimed

51Under the Schedule, medical and rehabilitation benefits are payable provided that certain conditions are met. For example, prior to incurring an expense for treatment, a treatment plan meeting the conditions in the Schedule must be submitted. This is set out in s. 38(2).⁸ There are certain exceptions to this rule.⁹

52The respondent submits that the applicant failed to comply with the above-noted condition when it comes to all of the medical benefits at issue, save and except the pelvic floor physiotherapy plan. In other words, the applicant incurred the treatment before submitting the treatment plan, which deprived the respondent of the opportunity to adjust the claim “in real time.”¹⁰

53The evidence and submissions filed show me the following:

Benefit	Date of Incurred (if applicable)	Date of Submission	Date of Denial
Pelvic Floor Physiotherapy – issue (f) in the list at para. 3 of this decision	Not incurred prior to TP submission	March 29, 2018	July 4, 2018
Vision Therapy (Dr. Wareham) – issue (b) in list at para. 3 of this decision	February 5, 2017	TP date is February 2, 2017 HCAI printout shows submission date of February 7, 2017	May 7, 2018 (after the s.44 assessment)
Hearing Aids (Dr. Taylor) – issue (c) in list at para. 3 of this decision	Exact date unknown but evidence suggests it was prior to TP submission11	June 27, 2018	July 10, 2018
Whole Therapy services – issue (d) in list at para. 3 of this decision	March 29, 2016 to January 26, 2018	First Submission: February 2, 2016 Second Submission: October 25, 2018 (per Respondent) Third Submission as an OCF-6 expenses form: June 26, 2019	First Denial: February 3, 2016 Second Denial: Unable to locate in evidence but the fact that it was denied is undisputed Third Denial: July 22, 2019
Psychotherapy (Dr. Kim) – issue (e) in list at para. 3 of this decision	Evidence suggests that it was incurred prior to expense form submission.	No TP submitted.	July 22, 2019

54The parties do not appear to disagree on the fact that in some cases, the applicant first incurred the expense and then submitted the treatment plan. By January 2016 or earlier, the applicant had used her limit of $50,000 as a person who was categorized as “non-MIG and non-CAT” or a person who was categorized as not having a minor injury and not being catastrophically impaired under the Schedule. It was not until January 2018 that she was accepted to be catastrophically impaired. The catastrophic designation entitled her to a limit of $1,000,000 in benefits.

55In the interim, based on her evidence, the applicant went for treatment as she needed it. She did not submit all of this treatment to the respondent because she knew that the respondent would deny it based on its position that she was not catastrophically impaired. Her submissions suggest that it is onerous to have to keep submitting treatment plans in such a scenario. There is no evidence before me as to how and why it was onerous to submit the treatment plans at issue prior to the treatment being incurred.

56The applicant also submits that s. 34 and 45(6) of the Schedule support her position. I find that s. 45(6) can be considered on the facts before me, but s. 34 does not apply in this case.

s. 34

57Section 34 has to do with extending time limits that the insured person failed to comply with under Part VIII of the Schedule if the insured person has a reasonable explanation.¹² To me, there is a distinction between a “time limit” and a condition precedent like submitting a treatment plan that meets certain criteria and before the fact of incurring a treatment.

58Under Part VIII, examples of some time limits that apply to insured persons are found in ss. 32(1), 32(5), 33(1), 35(1), 40(2), and 42(7). In the S.P v. Gore Mutual Insurance Co. case provided by the applicant, the Tribunal found a reasonable explanation for not meeting the time limit in s. 32(5).¹³

59The other cases provided by the applicant with respect to its s. 34 argument concern attendant care benefits. The Tribunal has developed case law in which an explanation for not filing a Form 1 for attendant care benefits in a timely manner is considered.¹⁴ There is no case law before me providing specifically that I can use s. 34 to relieve an insured person from the requirements of s. 38(2). Moreover, s. 38(2) has specific listed exceptions. Nowhere within these exceptions is there a reference to s. 34.

60Accordingly, s. 34 does not relieve an insured person from the requirement to comply with s. 38(2).

s. 45(6)

61Case law says that s. 45(6) was included in the Schedule to specifically recognize the situation of a catastrophic designation that takes place after the incurring of the expense.¹⁵ However, the section does not result in an automatic right to payment of the expense. The applicant must still be otherwise entitled to payment under the Schedule.¹⁶ This means that the expense must meet other criteria, such as a treatment plan that meets the conditions of s. 38, and the causation, reasonableness and necessity requirements of ss. 15-16.¹⁷

62Accordingly, s. 45(6) does not relieve the applicant of the requirement to comply with s. 38(2).

s. 38(2)

63A treatment plan must be submitted prior to incurring the benefit. Specific exceptions to this rule are listed. The applicant does not claim that her case falls within any of the listed exceptions.

64The Tribunal has held that applying s. 38(2) is consistent with the consumer protection objectives of the Schedule.¹⁸

65In order to be entitled to the benefits claimed, the applicant must first establish that she complied with s. 38(2). She is not otherwise relieved of this obligation, as discussed above.

66The applicant did not comply with s. 38(2) with respect to the following benefits:

a. Vision Therapy (Dr. Wareham);

b. Hearing Aids (Dr. Taylor);

c. Psychotherapy Expenses as claimed (Dr. Kim).

67This is confirmed by the evidence which is summarized in the chart laid out above.

68In the case of the psychotherapy expenses, the applicant did not submit a treatment plan. This contravened ss. 38(2) and (3).

69The applicant finds herself in an unfortunate position. Nonetheless, I can only make orders that are consistent with the Schedule. The requirements in the Schedule prevent me from ordering that the applicant can receive payment notwithstanding her non-compliance with s. 38(2).

70The policy behind s. 38(2) is clear. An insurer must be given a reasonable opportunity to adjust a claim before it is incurred. While it may be onerous for the applicant to ask its treatment providers to submit treatment plans “when they may be denied anyway,” there is no evidence before me in this case in terms of whether doing so is in fact unduly onerous, and what the nature of the cost of doing so is. Even if I had such evidence, I would have to weigh my consideration of it against the policy objective of fair and timely notice to an insurer adjusting benefit claims.

71As reasoned above, the Schedule does not permit me to otherwise dispense with the s. 38(2) requirement. The legislature intended to limit the exceptions to the specific items listed in that section.

72The applicant is not entitled to her claims for psychotherapy, vision therapy, and hearing aids as she has not complied with s. 38(2).

73Next, I will address the two benefits claimed where there was no breach of s. 38(2).

Whole Therapy Expenses

74The applicant submitted a treatment plan prior to incurring the expense. After this plan was denied, she went on to incur the expense. Reference can be made to the chart set out earlier in this decision. In the case of this benefit claim, the applicant has complied with s. 38(2).

75The applicant re-submitted her claim via a second treatment plan and then an expense form.

76Based on s. 45(6), her claim must be considered provided that it meets other requirements under the Schedule.

77The respondent has raised a limitation argument. The respondent submits that the applicant was out of time in applying to the Tribunal. The respondent calculates time from the very first treatment plan that was submitted.

78The respondent relies on the Divisional Court decision in Tomec.¹⁹ At the time of the respondent’s submissions, the Court of Appeal had not yet released its decision on the appeal of this case. The Court of Appeal reversed the ruling in the Divisional Court decision.²⁰ Hard limitation periods do not apply in these fact scenarios.²¹

79Based on the law as it is currently set out by the Court of Appeal in Tomec, the applicant is not barred by virtue of a missed limitation period.

80The conditions left for the applicant to meet are whether the expenses claimed are (i) reasonable and necessary and for (ii) treating an impairment as a result of the accident.

81The applicant submits that, since the respondent approved of the mileage expenses for the same treatment provider for this treatment, the respondent must have believed the expenses were due to the accident and reasonable and necessary.

82The respondent submits that I do not have direct evidence on a balance of probabilities with respect to the claimed causation from the accident and reasonableness and necessity of the treatment. According to the respondent, the applicant is only hinting at the benefit and this does not discharge her burden.

83The medical evidence before me consists of the following:

a. Family doctor notes and physiotherapy treatment notes; and

b. The three reports (also referred to earlier in this decision) containing diagnoses of chronic pain, PTSD, and depression.

84By itself, this medical evidence does not persuade me that the Whole Therapy expenses at issue are caused by the accident and reasonable and necessary.

85However, it is telling that the respondent approved the mileage expenses for the same treatment. For the respondent to have made this decision, it must have had compelling evidence that:

a. the applicant needed this treatment due to the accident; and

b. the treatment was reasonable and necessary.

86If the mileage expenses for the same treatment were reasonable and necessary, then, by extension, the treatment itself must have also been reasonable and necessary. This is a reasonable inference to make. The same inference can be made with respect to the causation condition. If the causation condition was met for the mileage expenses, then it can also be met for the actual treatment.

87For these reasons, the applicant is entitled to the Whole Therapy expenses claimed in this application.

Pelvic Floor Physiotherapy

88Four years after the accident, in 2016, the applicant started to experience urinary incontinence.

89Her urologist, Dr. Maciejewski, opined that the incontinence may be due to dysfunctional voiding. Dr. Schachter stated that the condition may be either directly or indirectly related to the accident.

90The respondent asked a general practitioner to assess the applicant in this regard. While I question the use of a general practitioner to evaluate the opinion of a urologist, I am not asked to assess the respondent’s specific decision-making in this regard at the hearing. This assessor also concluded that the incontinence may be indirectly related to the accident.

91I am unable to conclude, on a balance of probabilities, that the applicant’s claim for this benefit is to treat an impairment that was caused by the accident. The passage of time between the accident and the condition is long, and both parties’ experts are indeterminate on their opinions of causation. Evidence that there may be a causal link or that there may be a direct or indirect link is not sufficient to establish on a balance of probabilities that the impairment was as a result of the accident. Therefore, the opinions in the record do not assist me with determining that there is a causal link between the accident and the incontinence.

92On this basis, the applicant does not meet the causation condition for this benefit under the Schedule.

93The applicant is not entitled to the pelvic floor physiotherapy benefit as claimed.

CONCLUSION

94Except for the Whole Therapy expenses, the respondent’s decision with respect to the medical benefits at issue is confirmed.

95The respondent shall pay the applicant:

a. The Whole Therapy expenses at issue;

b. The attendant care benefit reduced to account for meal preparation only, for 1 hour, 3 times a week, as of October 9, 2019; and

c. Interest on the Whole Therapy expenses and reduced attendant care benefit.

Footnotes

1. 1Schedule, s. 14.
2. 2Schedule, s. 19.
3. 3Schedule, s. 20(2)(a).
4. 4Schedule, s. 19(3).
5. 5Clements v. Clements, 2012 SCC 32 at para. 3 of the Applicant’s Reply Closing Submissions.
6. 6In the weighing exercise, I have considered that Dr. Moustgaard applied the material contribution test as opposed to the but for test.
7. 7Form 1 submitted by Andrea McMullan, OT, on July 1, 2019.
8. 8Schedule, s. 38(2).
9. 9Schedule, s. 38(2).
10. 10See 18-000790 v. Jevco Insurance Company, 2019 CarswellOnt 4420 (ONLAT) at para. 23.
11. 11On a balance of probabilities, this is a reasonable conclusion based on the HCAI summary and other treatment records referred to by the respondent at Tabs 5, 6 and 7 of its submissions on the medical benefits.
12. 12Schedule, s. 34.
13. 13S.P. v. Gore Mutual Insurance Co., 2019 CarswellOnt 3708 (ONLAT).
14. 1418-000790 v. Jevco Insurance Company, 2019 CarswellOnt 4420 (ONLAT), which was provided to me by the applicant. Note the discussion of this decision in S.M. v. Wawanesa Mutual Insurance Company, 2020 CarswellOnt 2576 (ONLAT).
15. 15The applicant provided me with Barnes v. Motor Vehicle Accident Claims Fund, 2016 CarswellOnt 18935 (FSCO), which discusses the purpose of s. 45(6). The Director’s Delegate revised the decision but did not overturn this point. The Divisional Court denied an application of judicial review of the Director’s Delegate’s decision. The applicant also refers me to a comment made in Van Galder v. Economical Mutual Insurance Co., 2016 ONCA 804 at para. 47. The Van Galder case addressed retroactive interest.
16. 16Schedule, s. 45(6).
17. 17The applicant provided me with Doyon v. Allstate Insurance Co. of Canada, 2016 CarswellOnt 14472 (FSCO). Doyon was distinguished and clarified in Czombos v. Wawanesa Mutual Insurance Co., 2017 CarswellOnt 21129 (FSCO) at paras. 214-223.
18. 18G.S. v. Aviva Insurance Company of Canada, 2017 CanLII 33655 (ONLAT), which was provided to me by the respondent.
19. 19Tomec v. Economical Mutual Insurance Company, 2018 ONSC 5664 (Div. Ct.).
20. 20Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839. On January 7, 2020, a notice of application for leave to appeal to the Supreme Court of Canada was filed.
21. 21See the Court of Appeal in Tomec at paras. 46-52.