Citation: M.G. vs. Echelon General Insurance Company, 2020 ONLAT 18-002005/AABS

Date: October 27, 2020

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:

M.G.

Applicant

and

Echelon General Insurance Company

Respondent

DECISION

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the applicant: Arthur R. Camporese, Counsel

For the respondent: Jason Goodman, Counsel Karen Breininger, Counsel

Heard: by teleconference on June 27, 2019, August 7, and in writing on September 16, 2019.

I. OVERVIEW

1The applicant, M.G., was involved in an automobile accident on December 11, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule”). She sustained soft tissue injuries and a psychological impairment as a result of the accident. She applied to her insurer, Echelon General Insurance Company, for statutory accident benefits.

2The applicant claimed medical benefits for physiotherapy and occupational therapy, along with the cost of examinations for an attendant care assessment and a neuropsychological assessment as recommended in three treatment plans. The respondent denied the applicant’s entitlement to the recommendations in the treatment plans. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve the dispute.

3The applicant submits that she is entitled to the disputed benefits because she has cognitive impairments and chronic pain as a result of the accident that interfere with her activities of daily living. The respondent submits that the applicant is not credible. The respondent also submits that it already approved of the neuropsychological assessment to the maximum amount payable under the policy.

4Based on the parties’ submissions, evidence and the testimony from the applicant and two investigators, I find that the applicant is not entitled to the expenses for the neuropsychological assessment or the travel and documentation expenses for the attendant care assessment. However, I find that she is entitled to the attendant care assessment, occupational therapy and physiotherapy.

II. PROCEDURAL ISSUES

5The parties raised two procedural issues:

a. Whether the respondent was entitled to cross-examine the applicant on her first two affidavits; and

b. Whether the respondent’s surveillance evidence ought to be limited or excluded.

6I allowed the cross-examination on the first two affidavits and dismissed the applicant’s motion to strike the surveillance evidence.

A. Cross-Examination on the Initial Affidavits

7During the hearing, the applicant objected to the respondent using and cross-examining her on two affidavits which she swore on August 3, 2018 and August 24, 2018 filed as part of her previous written submissions for the hearing, initially scheduled for September 4, 2018. She reasoned that Adjudicator Maedel’s September 11, 2018 Order, that vacated that hearing and scheduled this one, essentially struck the use of those affidavits. She points to paragraphs 16 and 18 of that order, which set a new submission schedule and provided that the hearing adjudicator shall only consider the new and not old submissions.

8I do not read Adjudicator Maedel’s order as the applicant does. I allowed the prior affidavits to be used, including for cross-examination, for several reasons. First, Adjudicator Maedel was ordering new submissions, but he was not striking any underlying “evidence”. Striking evidence is a fairly drastic measure. If he meant to strike the affidavits, I would have expected to see reasons addressing fairness or prejudice if that was Adjudicator Maedel’s intention. The explanation he gave for the exclusion of the previous submissions was for the purpose of avoiding confusion. However, his order provides no reason why this evidence should be excluded or any intention to exclude it, and, in fact, he articulates the opposite intention; “Exclusion [of evidence] is a last resort…” His order is clear that the applicant is to be cross-examined on her affidavits. It would be odd for a prior sworn statement made for this matter to be excluded. The affidavits are relevant evidence. I also note, the respondent advised that it intended to cross-examine the applicant on her affidavits so there is no concern with undue surprise.

9Finally, in case I’m misreading Adjudicator Maedel’s order, I note that his order is subject to my final discretion, and I found the affidavits to be relevant evidence. The applicant also submits that the respondent did not file the applicant’s affidavits in accordance with Adjudicator Maedel’s timelines. However, those time lines were extended twice and the respondent filed the applicant’s August 2018 affidavits in accordance with the extensions ordered. For these reasons, I determined that the respondent may cross-examine the applicant with respect to her affidavits dated August 3 and 24, 2018.

B. Surveillance Evidence

10The applicant submitted that the respondent’s surveillance evidence ought to be excluded because the investigators are experts and they failed to provide an acknowledgement that, as experts, their duty is to the Tribunal as required under the LAT Rules.¹ This is the applicant’s second motion to exclude surveillance evidence and it is dismissed for the following reasons.

11The respondent denied that its investigators are experts and, therefore, submits LAT Rule 10.2 with respect to experts does not apply to the investigators. I agree with the respondent. LAT Rule 10.2 refers to an expert as someone who provides opinion evidence. An investigator only provides evidence of his or her observations, not opinion evidence.

12The applicant also submits that, although the respondent produced video surveillance, it failed to produce raw unedited surveillance footage and that she is now prejudiced as a result. The respondent was ordered by Adjudicator Maedel to produce the complete surveillance file of Neilsen & Associates – Investigations Inc. to the applicant by October 12, 2018. The date was extended by me to July 12, 2019 because Neilsen & Associates did not produce its complete file. The respondent submits that the raw unedited reports were provided, but does not deny that the raw unedited surveillance video was not provided. Counsel for the respondent advised that his office produced everything in the surveillance file that they had. I have no reason to doubt him because, as an officer of the court, he is under an obligation not to mislead.

13I am also satisfied that everything possible was done to obtain the complete file and that the respondent does not have control over Neilsen & Associates. An employee of Neilson & Associates, Benjamin Thomas, was under oath at the hearing when I ordered production of Neilsen & Associates’ complete file. During the hearing on May 31, 2019, Mr. Thomas made inquires as to when the complete file could be produced by Neilsen & Associates to the respondent. He knew that his cross-examination was adjourned pending production by Neilson & Associates of its complete file.

14Neither party produced evidence of the surveillance videos that the applicant received. I only have limited video footage submitted by the respondent in its submissions. As stated by Adjudicator Maedel in his motion order, exclusion is a remedy of last resort, only exercised when there is no other remedy to appropriately cure prejudice. The surveillance evidence, consisting of video and reports, is relevant to the issues in dispute because it shows the applicant’s activities over a number of days. I heard no submissions on what the raw unedited video would show. I find it would be unfair to the respondent to exclude evidence because its investigation company failed to produce its complete file. The applicant’s concerns are better addressed by the weight to be given to the surveillance evidence. Accordingly, the applicant’s motion to exclude the evidence is dismissed.

III. ISSUES

15Pursuant to the case conference Adjudicator’s order, and varied by the submissions of the parties, the issues I must decide are as follows:

a. Is the applicant entitled to a rehabilitation benefit in the amount of $3,106.05 for an attendant care assessment, occupational therapy, and assistive devices recommended by Deborah Prestwood of Ross Rehabilitation in a treatment plan (OCF-18) dated March 8, 2016;²

b. Is the applicant entitled to a medical benefit of $2,794.00 for physiotherapy treatment and occupational therapy recommended by Vince Pacifici in a treatment plan (OCF-18) dated December 1, 2017 and submitted on December 17, 2017;

c. Is the applicant entitled to a payment for the cost of an examination under s. 25 for $1,446.23 for a psychological assessment recommended by Dr. John Sullivan, psychologist of Baxter Antoniazzi and Associates,³ in a treatment plan (OCF-18) dated May 24, 2017, submitted on June 21, 2017;

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

e. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

IV. ANALYSIS

16All of the medical evidence indicates that the applicant sustained a soft tissue injury to her low back from the accident. She was six months pregnant at the time of the accident. The accident is associated with the applicant giving birth to her daughter prematurely by caesarean section six days after the accident.⁴ The applicant’s daughter was hospitalised until April 2016, during which time she was preoccupied with her daughter’s health. Accordingly, the applicant did not start treatment until well after the accident occurred.⁵ The applicant has also been diagnosed with an Adjustment Disorder with mixed anxiety and depressed mood,⁶ an Anxiety Disorder,⁷ and a Somatic Symptom Disorder with predominant and persistent pain, which results in her self-limiting behaviour due to her perceptions of pain.⁸ She has complained of memory problems, difficulty focusing and multi-tasking.

A. CREDIBILITY

17I heard testimony from the applicant when she was cross-examined on her affidavits. I also heard testimony from the cross-examination of Benjamin Thomas and Alysha Hillier, the investigators who conducted surveillance on the applicant. The respondent submits that the applicant is not credible because the surveillance evidence contradicts some of the statements she made in her August 3, 2018 affidavit. The respondent submits that, according to her affidavit, she requires assistance with respect to even minor tasks, such as banking and attending appointments, but the surveillance evidence shows otherwise.

18I do not find that the applicant’s evidence contradicts the surveillance evidence. As she explained, her statements in her affidavits that she “cannot do an activity” means that she cannot do it the way she used to. According to the medical reports filed, the applicant, for the most part, reported that she did not engage in the heavier aspects of her pre-accident chores or that she needed assistance because of her pain complaints. She did not swear that she never does her pre-accident activities. Therefore, I do not find that one instance of the applicant driving to a bank alone, when all the other surveillance shows the applicant driving with one of her older children, means that the applicant’s statements that she does not drive, does not drive alone or needs assistance with banking made a year prior to the surveillance is not credible. Nor do inconsistencies in her reports of when she started physiotherapy mean she is not credible given her complaints of memory problems recorded in the medical reports and records. Her explanations were coherent and overall made sense.

19The respondent also submits that the applicant’s affidavit suggests that she is unable to reach, squat or bend, or care for her daughter. The video surveillance shows her doing those activities. However, the applicant did not swear that she was completely unable to do those activities. She stated that she does them with difficulty and not for prolonged periods. The surveillance video does not show her engaging in any of the actions for prolonged periods. Accordingly, I do not agree with the respondent that the surveillance video is evidence that the applicant is not credible.

20Further, I give little weight to the surveillance reports. They were allegedly prepared based on the surveillance video and the field notes of the investigators who took the surveillance videos and signed off by the investigators. However, on the cross-examination of the investigators, it became apparent that some portions of the reports that stated the applicant was observed doing an activity were not supported by the field notes or the surveillance videos. For example, the report of Chris Nielsen and Benjamin Thomas dated February 28, 2018 states that, on February 21 at 11:28 a.m., the applicant loaded the family dog into the rear of her vehicle.⁹ There is no surveillance footage of the applicant doing so. The report initially stated, “observed the dog loading into the car.” On cross-examination, Mr. Thomas testified that this was changed by Chris Neilsen to “the applicant… loaded the family dog into the car”. Mr. Thomas testified that he had no independent recollection of the event and his field notes did not support that the applicant loaded her dog. The applicant testified that she did not load the dog, her son did.

21The February 28, 2018 report states that there were a number of photos of the applicant holding her baby from her husband’s Facebook posts attached to the report. However, there were only photos taken from the surveillance embedded into the report, no attached photos. Accordingly, I do not find the reports reliable.

22The unedited video surveillance was not produced, despite being ordered by the Tribunal. The February 28, 2018 report states that approximately 29 minutes of footage were obtained. I have a total of 15 minutes and 58 seconds of footage. Of this, only 12 minutes and 4 seconds of video footage is for February 23 and 24, 2018. The remaining footage is a series of still photographs from February 21 and 22, 2018. There is no video footage for those days. These are some of the reasons why I give little weight to the surveillance reports and the videos.

B. TREATMENT PLANS

23An insurer is liable to pay medical benefits to or on behalf of an insured person who sustains an impairment as a result of an accident for all reasonable and necessary occupational therapy and physiotherapy expenses incurred by the insured person as a result of the accident.¹⁰ If an insurer does not agree to fund all of the treatment recommended in treatment plan prepared in accordance with the Schedule, the insurer is required under s. 38(8) to notify the insured person which benefits are being denied within 10 days of receipt of the treatment plan.¹¹ The insurer is also required to provide the medical and any other reasons in the notice of denial.¹² If the insurer fails to provide the denial notice within 10 days, or fails to provide the medical or any other reasons for denying the benefit in the notice, under s. 38(11) of the Schedule the insurer is required to pay for all the goods and services described in the treatment plan that are incurred by the insured person until the proper denial notice is given.¹³ The provisions of s. 38(8) of the Schedule are strict and the consequences of s. 38(11) are mandatory.

a) Ms. Prestwood’s March 8, 2016 Treatment Plan

24Deborah Prestwood, occupational therapist, recommended in her March 8, 2016 treatment plan two sessions of occupational therapy at $399.00, an attendant care assessment and completion of a Form 1 at a cost of $1,296.50, $300 towards assistive devices, $30.00 for her mileage, $239.40 for her travel time to the applicant’s house, $199.50 for planning services, $299.25 for documentation, $199.50 for documentation for claims forms and HST for a total of $3,106.05. I find the cost of the attendant care assessment inclusive of preparing the attendant care needs form, the two therapy sessions, and the cost of HST are both reasonable and necessary for the following reasons.

(i) Attendant Care Examinations and Occupational Therapy

25The applicant submits that the "reasonable and necessary" test is not the appropriate test to apply when determining whether to fund treatment plans recommending the cost of attendant care examinations. The applicant submits that, under s. 25(1)4 of the Schedule, the examination need not be necessary for the respondent to be liable. If the cost of the examination is reasonable, then the respondent is liable for paying it. The applicant relies on the Tribunal decision of 16-003638 v. Aviva¹⁴ in support of its submission.

26I find that 16-003638 v. Aviva does not support the applicant’s submission that the test for entitlement to the cost of an attendant care examination does not include “necessity.” The Tribunal in 16-003638 v. Aviva discussed the liability of insurers to pay for the cost of preparing a form called an “assessment of attendant care needs” (“attendant care form”¹⁵). The Tribunal in 16-003638 v. Aviva did not include “necessity” as part of the test for entitlement to the cost of preparing the attendant care form. However, the attendant care form is not an attendant care assessment or examination. There was no discussion in 16-003638 v. Aviva about the insurer’s liability for the cost of the examination of the insured or whether an examination of the insured was necessary before filling out the attendant care form.

27Section 25(1)4 of the Schedule states that the insurer shall pay the “reasonable fees charged by an occupational therapist…for preparing an assessment of attendant care needs under section 42, including any assessment or examination necessary for that purpose” (emphasis mine). Section 42(1)(a) provides that the “Assessment of Attendant Care Needs” is a form that is approved by the Chief Executive Officer. The “Assessment of Attendant Care Needs” form that is required to be submitted under s. 42 is the attendant care form also referred to in s. 19(2) of the Schedule. The Legislature clearly means for the reference in s. 25(1)4 to “preparing an assessment of attendant care needs under s. 42” to refer to the attendant care form. The Legislature also clearly intended that insurers would only be liable for paying for the cost of an attendant care examination if the examination is necessary for the purpose of preparing the attendant care form. Any other interpretation would make the inclusion of the word “necessary” in s.25(1)4 redundant. If necessity was not part of the test for an attendant care examination, the cost payable for preparing the attendant care form under s.25(1)4 would also include any examination “conducted” for that purpose instead of any examination “necessary” for that purpose.

28I find that, under s. 25(1)4 of the Schedule, the respondent is required to pay the fees incurred that are charged by an occupational therapist for preparing the attendant care form as long as the cost is incurred and is reasonable. The respondent is not required to also pay for the attendant care examination unless it is necessary for the preparation of the attendant care form. However, it will be only the rare occasion when an assessment is not necessary for completing an attendant care form, such as when a treating occupational therapist is familiar enough with an insured person’s needs.

29The respondent submits that, in this case, the attendant care examination was not necessary and relies on the opinion of Dr. Allan Kopyto, a physician who assessed the applicant at the respondent’s request under s. 44 of the Schedule (an “IE”) on June 9, 2016. I find that the examination for the purpose of preparing an attendant care needs form was necessary for the following reasons.

30Dr. Kopyto has a specialty in family medicine and obtained his master’s degree in occupational therapy. The respondent submits that Dr. Kopyto’s opinion was that the applicant had no medical functional limitations or physical restrictions as a direct result of the injuries sustained in the accident. No pinpoint reference was provided for the quote and I was unable to locate it anywhere in Dr. Kopyto’s report. He was asked by the respondent to provide his diagnosis of any injury the applicant sustained as a direct result of the accident. He diagnosed her with an uncomplicated musculoligamentous strain injury of her low back. Dr. Kopyto determined that the applicant sustained reduced range of motion of her lumbar spine and shoulders. He did not discuss the cause. However, his opinion was that the treatment plan was not reasonable or necessary because the applicant’s low back sprain did not necessitate attendant care or occupational therapy. He did not explain why and, accordingly, I do not give much weight to his report. He also determined that the applicant should be treated within the Minor Injury Guideline (the “MIG”).¹⁶

31A person who is treated within the MIG because they have soft tissue injuries is not entitled to attendant care benefits. However, the applicant has been taken out of the MIG. It is not clear how much of Dr. Kopyto’s opinion about the attendant care was influenced by his determination that the applicant should be treated in the MIG, given that he provided no explanation for why a back sprain did not necessitate attendant care; especially since the applicant reported to Dr. Kopyto that she requires help from her eldest daughter in doffing her shoes and jeans. I find that, once the applicant was out of the MIG, an attendant care assessment was necessary to determine what attendant care assistance the applicant required because of her reduced range of motion of her lumbar spine and shoulders and her complaints of needing assistance getting in and out of the tub.¹⁷ The assessment was necessary for preparing an attendant care form.

32The respondent also submits that the applicant advised a number of assessors and treatment providers in 2017 and 2018 that she was able to engage in her personal care tasks and her pre-accident chores, except for activities that involve heavy lifting. The respondent submits that, during cross-examination on her affidavit, the applicant admitted she had been providing attendant care to her infant daughter, which conflicts with her reports that she required assistance to do the same tasks for herself. I disagree. At the time of the treatment plan in 2016, the applicant was unable to dress without assistance, get into the tub without assistance and was not engaging in much housekeeping. Her daughter was born only a few days after the accident and was hospitalised until April 2016 and, accordingly, she would not have weighed much. I do not find that by providing attendant care to her premature infant while she was in the hospital in 2016 or even once she was out of the hospital means that the applicant was able to dress herself or engage in her heavy pre-accident housekeeping activities. I find that the proposed occupational therapy would likely have assisted the applicant in the proper use of body mechanics that would have allowed her to care more often for her infant daughter and resume her heavy pre-accident chores. An improvement in her abilities a year or two later does not mean the occupational therapy and the assessment were not necessary when they were recommended. The attendant care assessment would have determined what assistance the applicant needed for her personal care as a result of her functional limitations in her back and shoulders.

33Accordingly, I find that the occupational therapy and the cost of the attendant care assessment were both necessary. The cost for the attendant care assessment and for preparing the attendant care form is reasonable for the following reasons. The recommended occupational therapist’s fee was $99.75 per hour, which is the maximum allowed under the Professional Services Guideline.¹⁸ The combined time recommended for preparing the attendant care form and conducting the assessment was 14 hours and, at $99.75 per hour, is within the $2,000.00 maximum payable for an assessment set out in s. 25(5)(a) of the Schedule. Accordingly, the respondent is liable for paying for the occupational therapy, the attendant care assessment and attendant care form preparation.

(ii) Assistive Devices

34The treatment plan does not disclose what assistive devices the applicant required at a cost of $300.00. In fact, Ms. Pressman reported that the $300.00 was an estimate of assistive devices that the applicant may or may not require. An assessment was subsequently performed by a different occupational therapist who recommended a number of assistive devices that exceed $300.00.¹⁹ I have no information on whether another treatment plan was prepared to address those recommendations. I find that the $300 was not necessary as it was a speculative recommendation that could not be determined until the in-home assessment was conducted.

(iii) Mileage, Transportation Expenses and Document Support Activity

35The transportation costs and mileage of a treatment provider are not payable. Under the Professional Services Guideline, the maximum fee payable for preparation of a treatment plan includes all examinations, assessments and expenses related to professional services that are involved in such examinations and assessments, and all other activities, tasks and expenses involved in the completion and submission of forms. Under s. 25(3) of the Schedule, an insurer is not required to pay for expenses related to services rendered to an insured person that exceed the rate or amount of expenses in the Professional Services Guideline. This means that the maximum payable for Ms. Prestwood’s preparation of her March 8, 2016 treatment plan is $200.00. The $299.25 fee for “document support activity” is a duplicate of the $199.50 fee already charged for preparation of the treatment plan and is not payable. The $199.50 for planning service is contemplated in the treatment and assessment fees and is also not payable.

36The applicant submits that the respondent did not reply with the requisite denial of the treatment plan within 10 days of its receipt, contrary to s. 38(8) and s. 38(11) of the Schedule, and that the respondent is liable for paying for the expenses incurred under the treatment plan before a proper denial was received. I need not consider this submission. Although an attendant care assessment was conducted, the expense of that attendant care assessment was not described in Ms. Prestwood’s treatment plan because it was done by Ms. Heath.²⁰ There is nothing in s. 38(11) of the Schedule that requires an insurer to pay for expenses incurred for substituted services, only those services described in the treatment plan. The treatment plan described Ms. Prestwood conducting the assessment and providing the treatment. However, the only attendant care assessment conducted of the applicant was by Natalie Heath, an occupational therapist. Ms. Prestwood also signed Ms. Heath’s report, but based on the report and the assessment of attendant care needs form, I find that the assessment was conducted by Ms. Heath and not by Ms. Prestwood.

37Accordingly, the amount payable under Ms. Prestwood’s treatment plan for the cost of the assessment and preparation of the attendant care needs form, two occupational therapy sessions and preparation of the treatment plan is $1,895.50 plus $246.42 HST.

b) Vince Pacifici’s December 1, 2017 Treatment Plan

38The applicant submits that the respondent failed to give the medical reasons in its notice denying Mr. Pacific’s treatment plan of December 1, 2017 recommending physiotherapy and occupational therapy for $2,794.00. The applicant relies on M.B. v. Aviva.²¹ That was a reconsideration decision of the Executive Chair, who stated that a medical reason should reference the insured’s medical condition and any other applicable rationale for the denial. That explanation will turn on the unique facts at hand. An insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.

39The treatment plan was submitted to the respondent on December 17, 2017. On December 29, 2017, the respondent wrote to the applicant advising that “prior insurer’s examination have indicated that from a physical standpoint you should have improved by now. We subsequently need to know if this treatment plan is reasonable and necessary.”²² The explanation is not detailed, but in clear language, it explains that expectations of recovery set out in a previous insurer’s examination (“IE”), which is specific to the applicant. I find that this is an explanation that satisfies the requirement for a medical explanation. There is enough information for the applicant to determine whether or not to dispute the denial and/or the request for her to attend at another IE assessment. Accordingly, the applicant received a proper denial of the treatment plan within 10 business days of when it was submitted.

40The applicant submits the physiotherapy and occupational therapy are reasonable and necessary and were recommended by Dr. Macaluso, the applicant’s family doctor, on numerous occasions since January 7, 2016. He recommended physiotherapy throughout 2016 but, by 2017, was recommending referral to a chronic pain clinic and deferred to Dr. Chmiel, a physiatrist,²³ and by the respondent's own IE assessor, Dr. Kopyto, on July 8, 2016, who recommended physiotherapy.²⁴ Dr. Tippin, the applicant’s psychologist, recommended an occupational therapy assessment in report dated April 26, 2017.²⁵ In his May 9, 2018 report, Dr. Sullivan recommended that the applicant develop ways to improve her management of her chronic pain and its effects in order to improve her cognitive functioning. He specifically stated that treatment in this area should continue.²⁶

41The respondent relies on the IE report of Dr. Mathoo, physiatrist, of May 15, 2018. His opinion was that the treatment plan was not reasonable and necessary at the time it was completed because the applicant had achieved maximum medical recovery. The applicant had reported only 20% subjective improvement overall, despite having received treatments similar to those proposed. Her physical examination was essentially unchanged from April 2017.²⁷

42The respondent also submits that the applicant reported to a number of assessors that physiotherapy was painful and she was not sure whether it was helping.

43When Dr. Mathoo assessed the applicant in April 2017, she complained of constant low back pain with some occasional radiation into her thigh. Prolonged sitting and standing aggravated her pain. By that time, she was able to drive and do her personal care activities. Dr. Mathoo diagnosed her with a lumbar strain injury as a result of the accident. Her lumbar spine pain had continued and she demonstrated a significant limited range of motion of the lumbar spine.²⁸

44Except for comments made to Dr. Marino, psychologist, in February 2018, the applicant’s complaints of painful physiotherapy were made in the spring of 2017. Further, the applicant did see an improvement of 20% because of physiotherapy. By August 2018, the physiotherapy alleviated her pain and made it possible for her to engage in the activities she had difficulty with.²⁹

45The applicant testified that physiotherapy does not provide lasting consistent improvement. However, it helps her cope with her pain because it provides her with some pain relief and relief from stiffness for a few days. It does not resolve her pain completely but helped her cope with it. Pain relief is a legitimate goal of treatment³⁰ and, accordingly, I find that the physiotherapy was necessary for treating the applicant’s applicant related injuries.

46Rehabilitation expenses are considered necessary under s. 16(1) of the Schedule if the services are for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market. I find that medical services that have the same or a similar purpose are also necessary. The goal of Mr. Pacifici’s treatment plan was to assist the applicant in returning to her activities of daily living, which is a legitimate goal, especially as the applicant’s daughter grows in size and weight. Accordingly, for these reasons I find that the additional occupational therapy was necessary.

47The costs recommended in the treatment plan are all within the Professional Fee Guidelines. Therefore, the cost of the services in Mr. Pacifici’s treatment plan are reasonable. For these reasons I find that the applicant is entitled to the services recommended by Mr. Pacifici for a total of $2,794.00.

c) Dr. Sullivan’s May 24, 2017 Treatment Plan

48The applicant is seeking payment for the cost of a neuropsychological assessment in the amount of $1,446.23 recommended by Dr. Sullivan in a treatment plan dated May 24, 2017. The respondent approved another treatment plan prepared by Dr. Sullivan also dated May 24, 2017, in which he recommended a neuropsychological assessment at a cost of $2,157.40.

49The cost for an assessment is capped under s. 25(5)(a) the Schedule at $2,000.00. The parties disagree about whether the work proposed in the treatment plan in dispute constitutes the second of two assessments as submitted by the applicant. The respondent submits that Dr. Sullivan’s two treatment plans are for one assessment or, in the alternative, the disputed treatment plan is a duplicate of the approved treatment plan.

50Section 25(5)(a) of the Schedule prohibits an insurer from paying more than $2,000.00, exclusive of tax, for all fees and expenses for any one assessment. This includes all fees and expenses for preparing and delivering reports in connection with the assessment. Under the Cost of Assessments Guideline,³¹ the $2,000.00 cap also includes all costs, fees, expenses, charges, surcharges, overhead, and all administration and other costs incurred by or on behalf of the health care provider who conducted the assessment or examination.

51The applicant submits that Dr. Sullivan’s two treatment plans identified distinct purposes and goals and involved unique sets of testing. I agree that distinct purposes were identified in each plan. Overall, the approved plan identified testing the applicant and the denied plan identified reporting on the testing. The evidence does not support the applicant’s submission that each treatment plan involved unique sets of testing.

52Dr. Sullivan’s disputed treatment plan states that the applicant’s cognitive difficulties prevent her from managing her everyday life and her work tasks efficiently. Both plans recommend a one hour interview. The interview recommended in the disputed treatment plan is with a collateral source. The interview recommended in the approved plan is with the applicant. The disputed plan recommends 2.17 hours reviewing documentation and 6.5 hours for writing a report. The goal of the assessment is to review documentation, prepare a report and advise others of the applicant’s cognitive functioning. There is no provision for assessing, testing or interviewing the applicant.

53The approved treatment plan recommends 10 hours of testing and one hour of providing feedback to the applicant. The goal of the approved assessment was to evaluate all the applicant’s cognitive function, obtain all objective estimates of her cognition and determine if there are deficits. There is no provision in the approved treatment plan for reporting on the testing other than giving feedback to the applicant.

54I find that by approving Dr. Sullivan’s $2,157.40 treatment plan, the respondent accepts that a neuropsychological assessment and report is necessary for determining what the applicant’s cognitive impairments are, the extent of those impairments and what treatment is best for addressing any cognitive impairments.

55The applicant relies on the LAT decision of S.B. v. State Farm.³² In that decision, the insurer was ordered to pay for two occupational therapy assessments that were part of a catastrophic impairment assessment plan. One assessment was to take place in the applicant’s home while the other was a situational assessment that was to take place in the community rather than the applicant’s home. The Tribunal found that the assessments were two distinct and discrete assessments and reports. I do not find that decision assists the applicant because the treatment plans in S.B. v. State Farm recommended two distinct assessments and two separate reports, unlike Dr. Sullivan’s recommendations.

56The applicant submits that the approach of submitting two treatment plans is compatible with both the Ontario Psychological Association's 2010 Guidelines and the CAPDA Position Statement for “Complex Psychological Evaluations under the new SABS.” The applicant also submits that the applicant’s IE assessor, Dr. Zakzanis, approved the approach taken by Dr. Sullivan.

57Although Dr. Zakzanis approved of Dr. Sullivan’s approach, he also stated that he deferred to the respondent because it involved an adjudicative decision that was not within his responsibility.³³ The recommendations of the Ontario Psychological Association, and Dr. Zakzanis’ approval of them, are contrary to the Schedule and do not supersede the Schedule.

58I agree with the respondent’s submissions that in this case, although there are two separate treatment plans for the neuropsychological assessment, the descriptions of the proposed services are overlapping and there is no suggestion that substantially separate services are being proposed.

59I find, based on the recommendations in the two treatment plans, that the bulk of the disputed treatment plan is for Dr. Sullivan to write a report based on the results of the assessment and testing administered by Dr. Sullivan recommended in the approved treatment plan. Dr. Sullivan’s treatment plan recommending the cost of reviewing documentation, writing a report and conducting an interview is in connection with his testing and assessment of the applicant in the approved treatment plan. The cost of writing the report is subject to the $2,000 cap together with Dr. Sullivan’s assessment and not as a separate endeavor.

60Charging for an assessment and the accompanying report as two different assessments in two different treatment plans defies the clear intention of s.25(5)(a) of the Schedule. Accordingly, the applicant’s claim for Dr. Sullivan’s report writing treatment plan in the amount of $1,446.23 is dismissed.

C. INTEREST

61Interest is payable in accordance with the provisions of the Schedule. If the parties are unable to resolve the issue of interest on Ms. Prestwood’s and Mr. Pacific’s treatment plans within 30 days of the release of my decision, I remain seized of the issue and will accept further submissions on the interest.

D. O. REG. 664 AWARD

62Under s.10 of Ontario Regulation 664, I may award a lump sum of up to 50 per cent of the amount to which the applicant is entitled if I find that the respondent unreasonably withheld or delayed payments to the applicant. The applicant claims entitlement to an award because the respondent unreasonably delayed payment of Ms. Prestwood’s recommendations and denied Dr. Sullivan’s neuropsychological assessment when it had no opinion supporting its denial. The applicant also submits that the respondent continued to deny the benefits despite having clear knowledge that no medical reasons were given for denying the benefits.

63I found that the denial of Dr. Sullivan’s treatment plan was reasonable. Especially since the respondent approved the maximum payable for Dr. Sullivan’s neuropsychological assessment. Accordingly, the applicant’s submission about the denial of the treatment plan are not persuasive.

64The respondent relies on the Financial Services Commission of Ontario (“FSCO”) decision of Melchiorre v. Wawanesa³⁴ on when a special award would be made. A special award was similar to an award under O. Reg 664. The FSCO arbitrator stated that a special award is not granted merely because the insurer incorrectly interpreted or failed to comply with a provision of the Schedule. If that were the case, a special award would be granted to every successful applicant. The respondent submits that an insurer can come to the wrong conclusion without having acted unreasonably.

65I am not bound by the FSCO decisions. However, I agree with the FSCO Arbitrator’s comments that it is well-settled that insurers owe their insureds a duty of good faith. That duty includes conducting reasonable investigations of information presented to it and to reassess the validity of the claim as new information is received. In this case, the respondent ought to have revisited its denial of the attendant care assessment and occupational therapy recommended by Ms. Prestwood once the applicant was taken out of the MIG. Further, there was no indication that Dr. Kopyto was provided with the MRIs of the applicant’s spine and brain for his comments. Accordingly, I find that the respondent unreasonably withheld its approval of portions of the treatment plan and that the applicant is entitled an award under O. Reg. 664.

66In determining the amount or percentage of the award, a higher award than 5% or 10% is merited because the respondent failed to reassess the applicant’s claim once she was taken out of the MIG. The only question before the respondent at that point was whether the attendant care assessment was necessary for completing the attendant care form. It is common sense that an occupational therapist would need to examine a patient to determine how much attendant care the patient required. Otherwise the attendant care form would be meaningless. A mitigating factor that reduces the award from the maximum 50% is that the respondent had Dr. Kopyto’s opinion, flawed as it is, and the applicant may have been influenced by the surveillance and the investigators’ reports in maintaining its denial of the benefits claimed. Accordingly, I find that an award of 35% of the $1,895.50 plus any interest is appropriate under the circumstances.

67The applicant made no submissions with respect to Pacifici’s treatment plan and, accordingly, I make no finding that an award under O. Reg. 664 is appropriate for that plan.

V. ORDER

68The applicant is entitled to $1,895.50 plus $246.42 HST of the $3,106.05 treatment plan dated March 8, 2016, recommended by Deborah Prestwood for an attendant care assessment, preparation of an attendant care form, occupational therapy, and preparation of the treatment plan

69The applicant is entitled to a medical benefit of $2,794.00 for physiotherapy treatment and occupational therapy recommended by Vince Pacifici in a treatment plan dated December 1, 2017;

70The applicant’s claim for payment for the cost of an examination under s.25 for $1,446.23 for a psychological assessment recommended by Dr. Sullivan in a treatment plan dated May 24, 2017 is dismissed;

71Interest is payable in accordance with the Schedule; and

72The applicant is entitled to an award under O. Reg. 664 at the rate of 35% on the $1,895.50 plus interest.

Released: October 27, 2020

_____________________________

Deborah Neilson

Adjudicator

Footnotes

1. 1Rule 10.2(b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “LAT Rules”).
2. 2The motion order dated Adjudicator’s order dated June 25, 2018 added the issue of a treatment and plan (OCF-18) for a rehabilitation benefit in the amount of $3,106.05 prepared by Ross Rehabilitation dated March 8, 2018, and denied by the insurer on July 8, 2018. The applicant, however, sought to add a treatment plan dated March 8, 2016 prepared by Ross Rehabilitation and her submissions list that as an issue and contain a treatment plan of the same date, for the same amount, but prepared by Deborah Prestwood of Ross Rehabilitation. There was no treatment plan prepared by a “Ross Rehab” in either parties’ materials.
3. 3The issue is listed in the case conference Adjudicator’s order as being recommended in a treatment plan by Baxter Antoniazzi. I was unable to locate any treatment plans prepared as required by s.38(3) of the Schedule, by a regulated health professional or a health practitioner by the name of Baxter Antoniazzi. I only located a treatment plan of the same date and amount for a psychological assessment recommended by Dr. Sullivan, a psychologist with a facility called “Baxter Antoniazzi and Associates.” The respondent has not alleged that the cost of the examination was not submitted on a treatment plan properly prepared in accordance with s.38(3) of the Schedule by a regulated health professional or a health practitioner. Accordingly, I have determined that the order misstated the facility’s name as that the health practitioner, Dr. John Sullivan.
4. 4Report of Dr. Mathoo, physiatrist, of May 1, 2017, p.10. I make no finding of fact of the accident’s role in the premature birth of the applicant’s daughter.
5. 5Affidavits of MG sworn October 22, 2018, paras.6 to 12, and sworn August 3, 2018, para.6 to 12.
6. 6Tab 10, applicant’s brief: report of Dr. Tippin, psychologist, of April 26, 2017, p.9.
7. 7Tab 14, respondent’s brief: report of Dr. Alan Chan, psychologist, dated May 24, 2017, p.21.
8. 8Tab 15, respondent’s brief: report of Dr. Alfonso Marino, psychologist, pp.47-48.
9. 9Tab 18, respondent’s brief: report of Chris Neilsen and Benjamin Thomas dated February 28, 2018, p.6.
10. 10Section 14 and 2.15 of the Schedule.
11. 11Subsections 38(3) and 38(8) of the Schedule.
12. 12Section 38(8) of the Schedule.
13. 13Section 38(11)2 of the Schedule.
14. 1416-003638 v. Aviva Insurance Canada, 2018 CanLII 95565 (ON LAT) (“ 16-003638 v. Aviva”).
15. 15This was called a “Form 1” under the Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996, O Reg 403/96.
16. 16Tab 5 respondent’s brief: report of Dr. Kopyto dated June 22, 2016, pp. 6 to 9.
17. 17Tab 13 applicant’s brief: report of Deborah Prestwood dated March 10, 2016, p.5.
18. 18Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014 (“Professional Services Guideline”).
19. 19Tab 20, applicant’s brief: report of Natalie Heath, occupational therapist, of July 12, 2016, p.12.
20. 20Section 3(7)(e) of the Schedule states that an expense in respect of goods or services referred to in the Schedule is not incurred by an insured person unless the insured person has received the goods or services to which the expense relates. Accordingly, the expense may not have been incurred.
21. 21M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT).
22. 22Tab 31, applicant’s brief: letter from the respondent dated December 29, 2017.
23. 23Tab 2, applicant’s brief: clinical notes of Dr. Macaluso dated January 7, 2016 July 28, 2016, September 22, 2016, October 4, 2016 and February 1, 2017.
24. 24Tab 5, respondent’s brief: Dr. Kopyto’s report dated July 8, 2016, p. 9.
25. 25Tab 10, applicant’s brief, report of Dr. Tippin dated April 26, 2017, p. 10.
26. 26Tab 27, applicant’s brief: report of Dr. Sullivan dated May 9, 2018.
27. 27Tab 16, respondent’s brief: report of Dr. Mathoo dated May 15, 2018, pp.9, 11, and 12.
28. 28Tab 11, respondent’s brief: report of Dr. Mathoo dated April 11, 2017, p.9.
29. 29Affidavits of MG sworn October 22, 2018, paras.27 and 30, and sworn August 3, 2018, paras. 15 to 21.
30. 30L.W. v. Cooperators General Insurance Company, 2016 CanLII 93133 (ON LAT).
31. 31Cost of Assessments and Examinations Guideline, November 2010, Superintendent’s Guideline No. 08/10 (Cost of Assessments Guidelines, p.2.
32. 3217-003290 v State Farm Insurance, 2017 CanLII 87153 (ON LAT) “S.B. v. State Farm”).
33. 33Tab 24 of the applicant’s brief: IE report of Dr. Konstantine Zakzanis, neuropsychologist, dated July 17, 2017.
34. 34Melchiorre v. Wawanesa Mutual Insurance Company, 2006 CarswellOnt 8426, [2006] O.F.S.C.D. No.200.