Jamon v. The Co-operators, 2021 CanLII 19483

Citation: Jamon v. The Co-operators, 2021 ONLAT 19-006256/AABS

Released Date: 02/11/2021

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:

Mae Voune Llanora Jamon

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

For the Applicant: Cary N. Schneider, Counsel

For the Respondent: Patrick M. Baker, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on March 20, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule”'). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

BACKGROUND

2The applicant was driving in the middle lane of a three-lane road, and a truck collided with the left side of her vehicle. Her vehicle was dragged several meters by the tow truck. Her vehicle was written off. She was transported by ambulance to Scarborough Hospital, where she was assessed and discharged with a diagnosis of strain.¹ She followed up the following day with her family doctor, Dr. B. Dhawan, who noted possible whiplash.² On March 24, 2019, she attended Scarborough Hospital and received a discharge diagnosis of headache, post concussion symptoms.

ISSUES IN DISPUTE

3The issues to be decided in this hearing are as follows:

1. Is the applicant entitled to income replacement benefits in the amount of $192.05 per week from September 23, 2019 to date and ongoing?

2. Is the applicant entitled to the cost of examination expense in the amount of $1,997.00 for an attendant care (form 1) assessment recommended by Promed Rehabilitation in a treatment plan (OCF-18) submitted on July 7, 2019, and denied on September 23, 2019?

3. Is the applicant entitled to a medical benefit in the amount of $3,020.31 for physiotherapy, chiropractic, and massage services recommended by Promed Rehabilitation in a treatment plan (OCF-18) submitted on July 7, 2019, and denied on September 23, 2019?

4. Is the applicant entitled to the cost of examination expense in the amount of $1,964.95 for a functional abilities’ assessment with Ted Clinic in a treatment plan (OCF-18) submitted on August 18, 2019, and denied on September 23, 2019?

5. Is the applicant entitled to a medical benefit in the amount of $1,676.40 for psychological treatment recommended by Promed Rehabilitation in a treatment plan (OCF-18) submitted on August 16, 2019 in the amount of $2,973.56 and partially approved in the amount of $1,297.16 on September 10, 2019?

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

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

RESULT

4Based on the evidence before me and on a balance of probabilities, I find the following:

1. The applicant is entitled to income replacement benefits in the amount of $192.05 per week from September 23, 2019 to date and ongoing.

2. The applicant is entitled to the cost of examination expense in the amount of $1,997.00 for an attendant care (form 1) assessment.

3. The applicant is not entitled to a medical benefit in the amount of $3,020.31 for physiotherapy, chiropractic, and massage services.

4. The applicant is entitled to the cost of examination expense in the amount of $1,964.95 for a functional abilities’ assessment.

5. The applicant is entitled to $299.25 towards the unapproved amount of $1,676.40 for psychological treatment.

6. The applicant is entitled to an award in the amount of 25% for the attendant care (form 1) assessment and the Functional Abilities (FAE) assessment.

7. The applicant is entitled to interest in accordance with s. 51 of the Schedule.

ANALYSIS

Is the applicant entitled to an income replacement benefit?

5The applicant was paid income replacement benefits (“IRBs”) one-week post-accident to September 23, 2019. However, IRBs were paid retroactively commencing May 14, 2019. The initial denial letter dated April 24, 2019³ denied IRBs based on the disability certificate (OCF-3) dated March 30, 2019. The denial was based on the OCF-3 not providing an explanation of how her impairments prevented her from returning to her pre-accident employment activities. The OCF-3 also noted that the applicant’s symptoms first appeared on March 19, 2019, one day prior to the accident. IRBs were then later denied by the respondent via a letter dated September 23, 2019.⁴ The letter advised the applicant that IRBs were being terminated based on the insurer’s examination (“IE”) reports dated September 10, 2019 of Dr. P. Jugnundan, general practitioner, and Dr. C. Bradbury, psychologist.

6To address the issue of IRB entitlement from September 23, 2019, the essential tasks of the applicant’s employment first needs to be identified before I can address whether she has a substantial inability to perform those activities as a result of the injuries she sustained from the accident. This is necessary to determine whether she meets the substantial inability test as set out in s. 5(1) of the Schedule.

Essential tasks of the applicant’s pre-accident employment

7The applicant worked part-time as a supervisor at Dairy Queen for three years until the accident date. I find the essential tasks of her pre-accident employment are as follows⁵:

1. Making food and soft serve ice cream and serving these to customers;

2. Performing cashier functions; and

3. Heavy lifting and prolonged standing.

Substantial inability to perform the essential tasks of the applicant’s pre-accident employment:

8I find the applicant has proven on a balance of probabilities that she is substantially unable to perform the essential tasks of her pre-accident employment for the following reasons:

1. The applicant was discharged from Scarborough Hospital on March 24, 2019 with a diagnosis of “Headache post concussion symptoms [sic].”⁶ The clinical note and record (“CNR”) of the family doctor, Dr. B. Dhawan, dated May 6, 2019 noted headache, occipital headache, nauseated at times. Occipital headache was noted secondary to pain, and the applicant was advised about red flags, i.e., worsening headache, vomiting, and photo phobia to return to the emergency department (ED). Dr. Dhawan noted on October 14, 2019 that the applicant was experiencing dizziness with a certain change in her neck position. The applicant was referred for an ear, nose, and throat specialist (“ENT”) consultation and the referral form noted symptoms including dizziness with the movement of her neck for three months. The referral form was returned as the applicant could only attend the clinic on the weekends, when the clinic is not open. From this evidence, I accept that the applicant was experiencing post-concussion symptoms from March 24, 2019. Even though the October 2019 CNR from the family doctor notes dizziness as a result of certain neck movements for three months, there has been no diagnosis from an ENT. However, I accept that she was experiencing post-concussion symptoms as a result of the accident based on the March 24, 2019 Scarborough Hospital diagnosis and the note in May 2019 from Dr. Dhawan.

2. A medical information form for Centennial College (“the college”), where the applicant was enrolled prior to the accident, was completed by Dr. Dhawan.⁷ The applicant submits the reason for completing the form was to notify the college that she is a student under a disability as a result of her post-concussive symptoms and chronic pain. The form noted a diagnosis of MVA neck injury, and that her disability was in relation to issues with mobility. The applicant’s symptoms were identified as continuous with no end date noted for the expiry of the accommodations. The form noted moderate impact to physical areas which included: mobility, gross and fine motor, sitting and standing for prolonged periods of time, fatigue, and chronic pain. I find that the information noted on this form supports that the applicant had limitations relating to her mobility, specifically with standing for prolonged periods. I also accept these symptoms were ongoing based on no end date noted on the form. Further, this form was completed by the applicant’s family doctor, who, I find, was well-informed about her accident-related impairments and who monitored her condition on an ongoing basis. The respondent argues that the college file was not produced in order to identify if any accommodations were provided for the applicant. The applicant argues the file was never requested by the respondent. The respondent has provided no evidence to support the documentation was requested prior to the hearing. As a result, I find the argument is being improperly raised at the hearing.

3. Dr. Dhawan referenced within his letter dated April 9, 2020⁸ that the applicant’s concussion had improved. The letter further noted that, as a result of the injury sustained to her back, she is unable to bend, lift heavy things, and has difficulty standing for more than one hour. It also noted that, if her job duties as a supervisor at Dairy Queen require her to do these tasks, she may be unable to perform them. The letter also noted she continues to have chronic pain and that soft tissue injury is complex and hard to prove through x-ray and CT scan. From this evidence, I accept by April 2020, the applicant’s concussion symptoms had improved but had not resolved. I also find the injuries to her back were not resolved because her family doctor noted she was still experiencing limitations with bending, lifting, and standing for more than one hour. Further, Dr. Dhawan noted she continues to have chronic pain. Based on this evidence, I accept that her pain was persistent and that she was experiencing functional limitations with bending, lifting heavy objects, and standing for prolonged periods. I find this evidence supports that she has a substantial inability to perform her pre-accident job duties at Dairy Queen. I accept her job duties at Dairy Queen involved heavy lifting and standing for prolonged periods. I also accept she would be substantially unable to perform these duties with unresolved post-concussion symptoms. Further, I am persuaded by the fact that the applicant was consistently able to perform her job duties at Dairy Queen for three years prior to the accident. While Dr. Dhawan’s CNR noted she “continues to have chronic pain”, I am not persuaded that this establishes a diagnosis of chronic pain, or chronic pain syndrome which I will address in the next paragraph.

9I find that the chronic pain report of Dr. H. Grigoropoulos, chiropractor, dated January 9, 2020⁹ has little persuasive value. I am not persuaded that a chiropractor is qualified to provide a diagnosis of chronic pain and his report largely relies on the applicant’s self-reported pain complaints. Range of motion testing was performed, and mild limitations noted in the cervical, lumbar, and right shoulder areas. It is noted that she presents with clinical features of pain, muscle spasm, fatigue, restricted functional active range of motion (“AROM”) and strength. It is Dr. Grigoropoulos’s opinion that the applicant suffers from chronic pain syndrome, secondary to unresolved residual pain from the accident. While Dr. Grigoropoulos identified that the applicant suffers from functional impairments, he has not provided information as to how these impairments affect her ability to perform her job duties. As a result, I do not find this report helpful in determining if the applicant has a substantial inability to perform her pre-accident employment duties and, therefore, have afforded little weight to it.

10I am not persuaded by the insurer’s examination (“IE”) report of Dr. Jugnundan¹⁰ because Dr. Jugnundan did not address the applicant’s concussion symptoms. This report noted reviewing the Scarborough hospital records diagnosing headache and post concussion symptoms on March 24, 2019, the Centre for Students with Disabilities form dated April 5, 2019 which noted mild limitations to cognitive functioning, and the CNR of the family doctor dated May 6, 2019 which noted occipital headaches secondary to neck pain. These are all relative to the symptoms of concussion but were not explored by Dr. Jugnundan which I find weakens his report. As a result, I am not persuaded by this report that the applicant’s injuries were limited to soft tissue injuries.

11I am also not persuaded by the findings noted within Dr. Bradbury’s psychological IE report.¹¹ This assessor addressed the incorrect legal test for IRB entitlement on three instances within her report.¹² She noted the applicant’s psychological status at the time of the assessment would not render her “completely” unable from resuming her pre-accident day-to-day vocational, academic, or leisure activities. I note that, at the bottom of page 16, Dr. Bradbury noted the applicant “has not sustained a substantial psychological inability to engage in the essential tasks of her pre-accident employment as a direct result of her 2018 motor vehicle collision.” I note, the motor vehicle accident happened in 2019. In response to question 3 on page 17, Dr. Bradbury provides the same response provided to question 1 but references the correct motor vehicle accident date of March 20, 2019.

12I find the report is confusing. Dr. Bradbury referenced the incorrect legal test for IRBs. I accept that, on page 16 of the report, Dr. Bradbury did note the correct legal test when she noted the applicant did not suffer a substantial inability (from a psychological perspective) to engage in the essential tasks of her pre-accident employment. However, her report interchanges the wording “completely” and “substantially” when referencing the applicant’s ability to perform her pre-accident employment tasks from a psychological perspective. I find the Schedule establishes two distinct legal tests for determining IRB entitlement based on different time periods. The Schedule notes under s. 5(1) that entitlement to IRBs within 104 weeks of the accident is based on an insured person being employed at the time of the accident and as a result of the accident, suffers a substantial [emphasis mine] inability to perform the essential tasks of their pre-accident employment. The complete inability test for IRB entitlement is noted within s. 6(1) of the Schedule which stipulates an insured is entitled to IRBs post 104 weeks of the accident if the insured person suffers a complete [emphasis mine] inability to engage in any employment or self-employment for which they are reasonably suited, based on their education, training, and experience. I therefore find Dr. Bradbury has conflated the distinctly different legal tests for IRBs when she interchanged the use of the words “completely” and substantially when reaching her conclusion regarding the applicant’s entitlement to IRBs. Further, Dr. Bradbury references two separate dates for the motor vehicle accident: 2018 and 2019. I find this discredits the value of this assessor’s opinion with respect to IRB entitlement. Further, there has been no addendum report produced to clarify the confusion or errors noted within the report.

13The psychological assessment report¹³ of Dr. K. Hill, psychologist and Levana Lam, registered psychotherapist (qualifying) is not helpful in determining IRB entitlement for the disputed period as it is dated May 31, 2019. The applicant was currently being paid IRBs at the time this report was issued. Therefore, I find the report is not helpful as the timeframe being claimed for IRBs for this hearing commences approximately four months after the issuance of this report which was commissioned by the applicant.

14The applicant submits, and it is noted in three different reports¹⁴ that, in September 2019, she started a co-op placement at the Canadian Imperial Bank of Commerce (“CIBC”) as a tester. The applicant submits this was an unpaid position. However, on page 8 of Dr. Bradbury’s psychological IE report it notes that this was a paid co-op placement. However, there is no further documentation noting this placement was paid. The applicant submits the job consisted of using a computer and had flexible hours. She submitted she was in her second year of a four-year program and this placement was part of her program and the internship has concluded. The respondent has raised that the applicant has adduced no evidence from CIBC or the college to confirm if the position was paid, and whether the co-op placement resulted in an employment relationship with CIBC. The applicant submitted that these records were never requested by the respondent prior to the hearing and it is improper to raise this argument at the hearing. The respondent has not produced any evidence which supports these records were requested prior to hearing. I agree with the applicant that it is therefore improper to raise this argument at the hearing. I am not persuaded the co-op position was a paid position based on Dr. Bradbury’s report as this is the only reference to this being a paid position and I also found significant errors within Dr. Bradbury’s report as noted above.

15On a balance of probabilities, I accept the applicant continues to suffer from post-concussion symptoms and functional impairments which I accept would make it difficult for her to stand for prolonged periods of time, bend, and lift heavy items. I find these are essential requirements required to perform her job duties as a supervisor at Dairy Queen. As a result, I find she suffers from a substantial inability to perform her pre-accident job duties. Therefore, I find she is entitled to income replacement benefits in the amount of $192.05 per week from September 23, 2019 to date and ongoing.

Is the applicant entitled to the cost of an assessment in the amount of $1,997.00 for an attendant care (form 1) assessment?

16The applicant is entitled to the cost of this assessment. The applicant has met her onus that this assessment is reasonable and necessary.

17The applicant argues the respondent missed a “limitation period” when it denied this benefit and, as a result, has not complied with s. 38(8) of the Schedule. I find the respondent denied this benefit in accordance with s. 38(8) of the Schedule when it issued its initial denial letter on July 18, 2019. The denial was based on the applicant’s injuries being within the MIG. The applicant was removed from the MIG and a subsequent denial letter was issued by the respondent on September 23, 2019. The applicant further argues the denial did not comply with the Schedule as the September 23, 2019 denial relied on the two IE assessor reports of Dr. Jugnundan and Dr. Bradbury, dated September 10, 2019. The September 23, 2019 denial notes that Dr. Jugnundan indicates that the applicant reported she was independent with her activities of daily living. Dr. Bradbury’s report indicates the applicant is able to complete her own basic self-care. The respondent argues the applicant has not established this OCF-18 is reasonable and necessary. In support of its position, the respondent has relied on 18-009077 v. The Personal Insurance Company¹⁵ in which the adjudicator agreed that the onus remains with the applicant to demonstrate that a treatment plan is reasonable and necessary.

18I do not find this OCF-18 was before either of the IE assessors to opine on whether it was reasonable and necessary, and neither assessor had commented on this OCF-18. The IE reports note information self-reported by the applicant.

19However, pursuant to s. 15 of the Schedule, I find the applicant has met her onus that the attendant care assessment is reasonable and necessary. I rely on the psychological report of Dr. Hill and Levana Lam. It is indicated on page 5 of their report that the applicant is independent with most of her self-care activities, but some have been neglected due to lack of energy. Further, on page 10 of the report, it indicates that her current level of psychological functioning and perceived pain level prevent her from performing her activities of normal living. The OCF-18 notes the applicant reported difficulty with performing her personal care tasks. Further, it notes that the accident-related injuries are exacerbated by standing, walking, stress, and local movement of the injured areas. Based on this evidence, I find the applicant is entitled to this OCF-18.

Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,020.31 for physiotherapy, chiropractic, and massage services?

20The applicant is not entitled to this OCF-18 in the amount of $3,020.31. The applicant has not met her onus that this OCF-18 is reasonable and necessary. I accept this OCF-18 was submitted to the respondent on July 9, 2019 and was denied by the respondent on July 22, 2019 which is within 10 business days pursuant to s. 38(8) of the Schedule. I find this denial is a valid notice. This is because the basis for the denial notes the applicant’s injuries fell within the MIG. Further medical reasons were provided and relied on a March 21, 2019 x-ray of her cervical spine which was normal. Therefore, I do not agree with the applicant’s argument that this OCF-18 was deemed “do not approve” by the adjuster and was not denied within the timeframe pursuant to s. 38(8) of the Schedule.

21A subsequent denial was issued by the respondent on September 23, 2019. The OCF-18 was reassessed following the applicant’s removal from the MIG based on a psychological impairment. The respondent maintained its denial and relied on Dr. Jugnundan’s IE report which indicates the applicant sustained soft tissue injuries within the MIG and no further formal treatment/rehabilitation is required.

22The respondent argues it approved a prior OCF-18 for physiotherapy, chiropractic treatment, and massage therapy on June 20, 2019 in the amount of $1,141.00. The disputed OCF-18 in the amount of $3,020.31 was submitted to the respondent on July 19, 2019. The respondent argued that at the time the disputed OCF-18 was submitted, the applicant had not accessed, nor exhausted the prior approved treatment from one month earlier. The invoice (OCF-21) had not been received by the respondent for the approved treatments.

23The applicant argues that this position was raised by the respondent for the first time at the hearing, and by doing so, the respondent has contravened s. 38(8) of the Schedule. I disagree. I find the July 22, 2019 and the September 23, 2019 denial letters are valid notices which complied with the requirements set out within the Schedule. The respondent has relied on medical reasons within both of its notices. As I have addressed the reasons why I find both denials are valid notices, I will address the reasons why I find the OCF-18 is not reasonable and necessary.

24While the CNRs of Dr. Dhawan dated May 6 and 2014, 2019, recommended physiotherapy, I am not persuaded that the goal of the OCF-18 will be met by the proposed treatment. This is because the OCF-18 recommended 10 sessions each of manipulation, exercise, and therapy with the goals of returning her to her pre-accident level of functioning, pain reduction, and for chronicity prevention. The OCF-18 noted that following the completion of the last treatment plan, the “patient reports feeling better, but that relief is temporary.” I am also not persuaded that the chronic pain report issued by Dr. Grigoropoulos, dated January 9, 2020 supports that this OCF-18 is reasonable and necessary. This is because his report was issued approximately 6 months after the issuance of the OCF-18. Dr. Grigoropoulos noted reviewing on page 3 of his report under the documents reviewed section - updated chronic pain scientific medical literature. Therefore, it does not appear he reviewed the CNRs of Dr. Dhawan, nor this OCF-18. Based on this evidence, I do not find the chronic pain report supports this OCF-18 is reasonable and necessary. For the reasons I addressed above, I find this OCF-18 is not reasonable and necessary.

Is the applicant entitled to the cost of an assessment in the amount of $1,964.95 for a functional abilities’ assessment?

25I find this functional abilities’ evaluation (“FAE”) assessment in the amount of $1,964.95 is reasonable and necessary to be able to determine what the applicant’s specific limitations are and specifically what she can and cannot do.

26The applicant argues the respondent has not complied with the timeframe set out within s. 38(8) when it denied this OCF-18. I find this OCF-18 was denied in accordance with the timeframe pursuant to s. 38(8) of the Schedule. The respondent issued a denial letter dated July 18, 2019 for this benefit. The denial noted the respondent received the OCF-18 on July 8, 2019¹⁶. It was denied on the basis that the respondent was obtaining a second opinion relating to how her functional complaints affect her ability to perform her pre-accident employment activities and her ongoing entitlement to IRBs. Two upcoming scheduled IE assessments were noted. I find the respondent’s initial denial letter complies with the requirements set out within s. 38(8) of the Schedule.

27The applicant argues that this OCF-18 was not put forward to either of the IE assessors to comment on and an FAE assessment would have been beneficial to assist the assessors in understanding the applicant’s limitations. The respondent submitted the applicant “has failed to adduce any evidence to provide a range of weight that may need to be lifted, the amount of standing, bending, fingering, or lifting required, or the overall physical or functional requirements of the job. The respondent had this OCF-18 prior to the applicant attending the general practitioner assessment with Dr. Jugnundan but, this OCF-18 was not provided to Dr. Jugnundan to comment. The respondent submitted that the applicant continues to attend studies, resumed gym exercise, engaged in self-care and social activities, and successfully engaged in a co-op program with CIBC Bank.

28The July 18, 2019 denial letter noted that the respondent would be obtaining a second opinion regarding how her functional complaints affected her ability to perform her pre-accident duties. This OCF-18 was not before the IE assessors who issued their reports on September 10, 2019. I find the FAE assessment could provide useful information regarding the specific activities the applicant could and could not perform. The respondent submitted the applicant had not adduced any evidence which identified her limitations in relation to her pre-accident job duties. I find this information could have assisted with the determination of ongoing entitlement of the IRBs. The IRB benefit was stopped based on two IE assessments completed by a general practitioner and a psychologist.

Is the applicant entitled to the unapproved amount of $1,676.40 for psychological treatment?

29The applicant is entitled to the following unapproved amount under part 12 of the OCF-18 as follows:

i. item #4 - document and support activity $299.25;

30The applicant is not entitled to the remaining unapproved balance of this OCF-18 which includes line items #5 and #6 on the OCF-18. The applicant is not entitled to the hourly rate difference for the psychological treatment. The OCF-18 proposes an hourly rate of $149.63 and the respondent approved an hourly rate of $91.43. I find the rate approved by the respondent at $91.43 is appropriate.

31In the respondent’s denial letter dated September 23, 2019, the following items were denied: item #4 - document and support activity, item #5 – planning service; and item #6 - preparation service. The only reason the respondent provided for the denial of these services is that they are not reasonable and necessary. I find item #4 in the amount of $299.25 is reasonable and necessary. I have reviewed the OCF-18 and item #4 on the OCF-18 notes progress report in the amount of $299.95. I find this line item is reasonable and necessary for the purpose of documenting the applicant’s progress with the psychological treatment received and to be able to assess if further treatment is required. Item #5 of the OCF-18 notes planning, research and consultation in the amount of $199.50. I do not find the applicant has established this line item is reasonable and necessary. Item #6 notes “file and medical document review Psych” in the amount of $299.25. I find this is not reasonable and necessary as I find this would have formed part of the completion of the OCF-18 and the respondent had approved $200.00 for the completion of this OCF-18. Therefore, I find the applicant is entitled to line item #4 in the amount of $299.25. I do not find items #5 and #6 are reasonable and necessary.

32In her IE psychological report, Dr. Bradbury recommended 10 one-hour psychological treatment sessions utilizing a cognitive therapy-based approach. Dr. Bradbury notes in her report that she was not provided with an OCF-18 to review. An OCF-18 was prepared by Dr. K. Hill, psychologist, and is dated August 16, 2019. The respondent partially approved this OCF-18 in the amount of $1,297.16, which includes $200.00 for preparation of the OCF-18 and 12 sessions of therapy at $91.43 per hour (not the hourly rate requested at $149.63 per hour.) The applicant concedes that Levana Lam, psychotherapist, would be administering the psychological treatment/cognitive behaviour therapy under the supervision of Dr. Hill. The psychological report prepared by Dr. Hill and Levana Lam dated May 31, 2019 notes that Levana Lam has a Master of Education and is a Registered Psychotherapist (RP) (Qualifying). She is also listed under the College of Registered Psychotherapists of Ontario (CRPO) under the Qualifying category and that she shall practice with clinical supervision as required for registration under this category.¹⁷

33The Professional Services Guideline¹⁸ (“Guideline”) notes that for services not covered by the Guideline, the amounts payable by an insurer are to be determined by the parties involved. Psychotherapists are not listed within the Guideline and the hourly rate listed for unregulated providers is $58.19. In the case before me, the parties cannot agree on the hourly rate for Levana Lam. The applicant submits she should be paid the same hourly rate as a psychologist or a psychological associate at $149.63 per hour. The respondent has approved funding for Levana Lam at $91.43 per hour. The applicant relies on the Tribunal’s reconsideration decision J.V. v. Intact Insurance Company¹⁹ for which I wrote the original decision and the reconsideration. I determined the psychotherapist was to be paid the same hourly rate of $149.63 as noted within the Guideline for a psychologist or a psychological associate. I find the case before me distinguishable as Levana Lam is a Registered Psychotherapist (Qualifying) and she is operating under the supervision of Dr. Hill who prepared the OCF-18. The psychotherapist for whom I awarded an hourly rate of $149.63 is a Registered Psychotherapist with documentation supporting her extensive training, experience and credentials; specializing within the area of cognitive behaviour therapy. Further, that psychotherapist was licensed to practice without supervision. Therefore, I accept the hourly rate of $91.43 approved by the respondent for this OCF-18 is applicable and the applicant is not entitled to the hourly rate of $149.63 for the psychological treatment proposed within the OCF-18.

Is the applicant entitled to an award under Ontario Regulation 664?

34I find the respondent is liable to pay an award in the amount of 25% on the attendant care (form 1) assessment and the FAE assessment. I find the respondent has unreasonably withheld payment of these benefits to the applicant.

35Ontario Regulation 664 provides that, if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest.

36The applicant submits the Tribunal should find the respondent liable for an award in the amount of 50% of the benefits in dispute plus interest. The applicant relies on the Financial Services Commission of Ontario’s (“FSCO”) decision in Sivakumaru Sinnapu and Economical Mutual Insurance Company.²⁰ In that decision, the arbitrator stated that the threshold for an award is reasonableness, that this threshold is low, and that the trigger for an award is the unreasonable withholding or delay of payments. I agree with this analysis.

37The applicant’s claim for an award is based on the following:

1. the respondent improperly denied IRBs based on the OCF-3 received on April 24, 2019;

2. the respondent maintained the MIG position and disregarded medical evidence and the law regarding the applicant’s diagnosis of post-concussion symptoms;

3. the basis for IRBs being terminated was based on weak IE reports, and updated medical evidence was not considered;

4. the respondent neglected to schedule a neurological assessment to evaluate the post-concussion symptoms, or obtain addendums based on updated medical information; and

5. The respondent improperly denied OCF-18’s.

38The respondent’s denied IRBs in a letter dated April 24, 2019. The letter notes that the OCF-3 indicates the applicant meets the substantial inability test for IRBs and that she is unable to return to modified hours and duties. The letter further notes that the OCF-3 failed to provide any explanation for how her impairments create a substantial inability for her to return to her pre-accident employment duties. Further, the denial letter notes that her symptoms first appeared March 19, 2019 which is a day prior to the accident. The respondent requested the applicant produce documentation pursuant to s. 36(4)(c) of the Schedule including: CNRs of the family doctor; two years pre-accident and post-accident, CNRs of any specialists she is seeing, and the CNRs of the treating physiotherapist who prepared the OCF-18.

39The respondent initially denied IRBs based upon their initial review of the OCF-3. I find the respondent has provided reasons for the denial of IRBs in its denial letter dated April 24, 2019, and as such, has complied with s. 38(8) of the Schedule. I accept that the OCF-3 notes the date of the accident as March 19, 2019. While this was not considered at the outset by the respondent as being a typographical error, I find once this was brought to the respondent’s attention on May 13, 2019 through an email from the applicant’s counsel, the respondent quickly addressed their denial of IRBs. The respondent approved IRBs on May 14, 2019. The respondent issued a letter dated September 23, 2019 which terminated IRBs. The respondent relied on its IE assessment reports of September 10, 2019. While I have found the applicant is entitled to IRBs from September 23, 2019 to date and ongoing, I do not find the respondent’s initial denial of IRBs on April 24, 2019, or the letter dated September 23, 2019, terminating IRBs, equates to an unreasonable delay or withholding of IRBs.

40I find the respondent’s failure to investigate the concussive symptoms based on its position that there was no definitive diagnosis of a concussion was not a reasonable explanation. I find the respondent fell short in the adjustment of the applicant’s claim. The respondent submitted there was no conclusive evidence of concussion and that is why the applicant was not removed from the MIG until it received its IE reports dated September 10, 2019. The applicant was removed from the MIG based on Dr. Bradbury’s psychological IE report. I accept the respondent did not have the March 24, 2019 discharge report from Scarborough Hospital which diagnosed the applicant with headache and post-concussion symptoms prior to January 20, 2020. The respondent had reviewed the April 5, 2019 Centre for Students with Disabilities Form - medical information form, completed by Dr. Dhawan which noted mobility issues and mild impairments relating to cognitive function. The May 6, 2019 CNR of Dr. Dhawan noted concussion symptoms and advised the applicant of “red flags” relating to concussion symptoms. I find this information constitutes sufficient information that the applicant may have sustained a concussion and ought to have been further investigated by the respondent to consider removal from the MIG earlier than September 10, 2019.

41The attendant care (form 1) assessment was initially denied on July 18, 2019 on the basis that the applicant’s injuries were within the MIG. This assessment was reassessed by the respondent following the applicant’s removal from the MIG and this assessment was further denied on September 23, 2019. This denial was based on the IE reports dated September 10, 2019 which note the applicant reported she was independent with her self-care and her activities of daily living. This OCF-18 was not before either of these assessors. The medical evidence before the respondent suggested she was suffering post-concussive symptoms. The details in the psychological report of Dr. Hill and Dr. Lam, dated May 31, 2019 noted the applicant reported challenges with performing all of her self-care and activities of daily living. Therefore, I find the respondent has fallen short in their responsibility of adjusting the applicant’s claim by solely relying on their IE reports to further deny this benefit and not properly consider the other medical evidence before them. This has resulted in an unreasonable withholding of this benefit. I accept the applicant’s submission that she may have benefited from this assessment due to her ongoing health issues. The applicant was a student and was receiving an IRB at the time this OCF-18 was submitted. Therefore, I accept her submission that she could not afford to proceed with this assessment without it being funded by the respondent.

42The respondent denied the applicant’s request for an FAE assessment based on the respondent wanting to obtain a second opinion from two IE assessors. However, the OCF-18 for the FAE was not provided to Dr. Jugnundan to opine on. I find it was therefore unreasonable for the respondent to then maintain its position that it did not have enough information to be able to determine what the applicant’s functional limitations were and how it impacted her ability to perform her pre-accident job duties. Therefore, I find there was an unreasonable withholding of this benefit and the applicant is entitled to an award for the FAE assessment.

43I do not find the respondent unreasonably withheld the unapproved amount for the OCF-18 for psychological treatment. The applicant argues that the IE assessor who reviewed this OCF-18 did not note that line items on this treatment plan were “not reasonable and necessary.” However, I note that the IE assessor, Dr. Bradbury noted on page 15 of her report that she was not provided any OCF-18 to review. The respondent made the decision not to approve the line items as the respondent found they were not reasonable and necessary. I do not find this equates to an unreasonable withholding of benefits.

44Therefore, I find the respondent is liable to pay an award to the applicant on costs related to the attendant care (form 1) assessment and the FAE assessment.

Quantum of Award

45The applicant requested an award in the amount of 50% which I do not find is appropriate. I find an award is payable in the amount of 25% because:

1. I found that the denial of IRBs and the unapproved line item amounts on the psychological treatment plan did not equate to an unreasonable withholding of benefits;

2. I have found the respondent fell short in its duty to adjust the applicant’s claim when it did not take the necessary steps to investigate her post-concussive symptoms based on the medical evidence the respondent had in its possession prior to the respondent removing the applicant from the MIG in September 2019. However, I do not find that the respondent’s behaviour rises to the level of an award at the maximum amount of 50%;

3. I have found the respondent’s denial of the attendant care (form 1) and FAE assessments resulted in an unreasonable withholding of benefits. Further, I accepted the applicant’s submission that she did not proceed with the attendant care (form 1) assessment as she could not afford to do so. I find there has been prejudice to applicant by the withholding of the attendant care (form 1) assessment. I find the FAE assessment could have provided information regarding her limitations relating to her pre-accident job duties which I find could have assisted with the determination of ongoing entitlement to IRBs. The IRBs were stopped based on the respondent relying on two September 10, 2019 IE reports.

4. I find the actions taken by the respondent in the adjustment of this claim has resulted in serious consequences for the applicant. To award a lower amount would not be reflective of the situation or its effect on the applicant.

46The applicant requests that if the Tribunal finds that the respondent unreasonably withheld or delayed the payment of benefits, the Tribunal may deem any of the expenses as incurred pursuant to s. 3(8) of the Schedule. I find the deemed incurred provision of s. 3(8) of the Schedule applies to the attendant care (form 1) assessment as I accepted that she could not afford to proceed with this assessment. The applicant submitted that the respondent should have realized she is struggling and is entitled to benefits. The applicant did not provide particulars to support why the FAE assessment was not incurred and it would be improper for me to make assumptions. Therefore, I find the deemed incurred provision under s. 3(8) applies to the attendant care (form 1) assessment but not to the FAE assessment.

CONCLUSION

47The applicant is entitled to income replacement benefits from September 23, 2019 to date and ongoing. The applicant is entitled to the attendant care (form 1) assessment, the functional abilities’ assessment, the amount of $299.25 towards the unapproved amount for psychological treatment. The applicant is entitled to an award in the amount of 25% for the attendant care (form 1) assessment and the FAE assessment. The applicant is entitled to interest in accordance with s. 51 of the Schedule. The deemed incurred provision pursuant to s. 3(8) of the Schedule applies to the attendant care (form 1) assessment. The applicant is not entitled to a medical benefit for physiotherapy, chiropractic, and massage services in the amount of $3,020.31.

ORDER

48For the reasons I have addressed above, I find the applicant is entitled to the following:

1. The applicant is entitled to income replacement benefits in the amount of $192.05 per week from September 23, 2019 to date and ongoing.

2. The applicant is entitled to the cost of examination expense in the amount of $1,997.00 for an attendant care (form 1) assessment.

3. The applicant is entitled to the cost of examination expense in the amount of $1,964.95 for a functional abilities’ assessment.

4. The applicant is entitled to $299.25 towards the unapproved amount for $1,676.40 for psychological treatment.

5. The deemed incurred provision pursuant to s 3(8) of the Schedule shall apply to the cost of examination expense for the attendant care (form 1) assessment.

6. The applicant is entitled to an award in the amount of 25% for the attendant care (form 1) assessment and the functional abilities’ assessment.

7. The applicant is entitled to interest in accordance with s.51 of the Schedule.

Footnotes

1. 1Tab 1 of respondent’s submissions – discharge note from Scarborough Hospital, dated March 20, 2019. Contained in family doctor’s clinical notes and records, at 60.
2. 2Ibid, at 27.
3. 3Tab 6 of applicant’s submissions – initial denial letter from respondent dated April 24, 2019 which denied IRBs.
4. 4Tab 17 of respondent’s submissions – Letter from respondent stopping payment of IRBs, dated September 23, 2019.
5. 5Description of job duties noted in following documents: Tab 5 of applicant’s submissions - Employer’s Confirmation Form (OCF-2), dated April 1, 2019. Tab 18 of the applicant’s submissions - psychological report of Dr. K. Hill and Levana Lam dated May 31, 2019, at 9. Tab 4 of the applicant’s submissions - psychological IE report of Dr. C. Bradbury dated September 10, 2019, at 7-8, 12.
6. 6Tab 2 of respondent’s submissions - hospital records of Scarborough Hospital, dated March 24, 2019 (received by respondent January 20, 2020.)
7. 7Tab 3 of respondent’s submissions – Centre for Students with Disabilities – Medical Information Form, completed by Dr. Dhawan, dated April 5, 2019.
8. 8Tab 8 of respondent’s submissions – letter of Dr. B. Dhawan, dated April 9, 2020
9. 9Tab 17 of the applicant’s submissions - Chronic Pain Examination Report of Dr. H. Grigoropoulos, dated January 9, 2020.
10. 10Tab 5 of respondent’s submissions – IE report of Dr. Jugnundan, dated September 10, 2019.
11. 11Tab 4 of respondent’s submissions – IE report of Dr. Bradbury, dated September 10, 2019.
12. 12Ibid, pages 13, 14, 16.
13. 13Tab 18 of applicant’s submissions – psychological report of Dr. Hill and Levana Lam, dated May 31, 2019.
14. 14References to applicant performing co-op work for CIBC found in 1) Tab 4 of respondent’s submissions - Psychological IE Report of Dr. Bradbury dated September 10, 2019, at 8. 2) Tab 5 of respondent’s submissions – General Practitioner IE report of Dr. Jugnundan, at 7. 3) Tab 6 of respondent’s submissions – Chronic Pain Assessment Report of Dr. Grigoropoulos dated January 9, 2020.
15. 15Tab 20 of respondent’s submissions - 18-009077 v. The Personal Insurance Company, 2020 CanLII 40334 (ON LAT), at paras 7-8, 25.
16. 16Tab 31 of respondent’s submissions – denial letter from Co-operators dated July 18, 2019.
17. 17Tab 24 of respondent’s submissions – registration confirmation of Levana Lam with the College of Registered Psychotherapists of Ontario
18. 18Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014
19. 19J.V. v. Intact Insurance Company, 2019 CanLII 130366 (ON LAT)
20. 20Sivakumaru Sinnapu and Economical Mutual Insurance Company (FSCO A09-000900), at 4