Citation: D.C. v. Allstate Canada, 2021 ONLAT 19-005260/AABS

Released Date: 03/01/2021

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:

D.C.

Applicant

and

Allstate Canada

Respondent

DECISION AND ORDER

PANEL:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Lisa Bishop

Counsel

For the Respondent:

Heather Kawaguchi

Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, D.C., was involved in an automobile accident on June 13, 2017 when the vehicle he was driving was t-boned on the driver’s side. He sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹

2The respondent, Allstate, paid the applicant certain benefits and denied others. The applicant then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

3On December 3, 2020, the Tribunal issued an order inviting supplementary written submissions from the applicant. The order was made to remedy any potential for procedural unfairness arising from the absence of an order from the Tribunal limiting the length of the parties’ initial submissions. The Tribunal required the applicant’s supplementary submissions by January 22, 2021.

4The applicant did not file supplementary submissions and did not bring a motion for an extension to the filing deadline. The Tribunal will therefore proceed to consider the application based on the submissions and evidence already filed.

PROCEDURAL ISSUES

5The applicant submits that the respondent should not be allowed to rely on the multidisciplinary Section 44 Insurer’s Examination (IE) reports issued in July 2019. He submits that the respondent did not provide him with a copy of those reports until October 23, 2019, exceeding the 10-business day timeframe set out in s. 36(7) of the Schedule.

6I find that the respondent complied with the 10-business day timeframe in providing the July 2, 2019 multidisciplinary IE reports to the applicant, and his submissions on this point are inaccurate. The respondent enclosed the reports with an Explanation of Benefits (EOB) dated July 10, 2019. There is no basis for excluding the reports from evidence.

ISSUES IN DISPUTE

7I am to decide the following issues:

i. Is the applicant entitled to an income replacement benefit, post 104 weeks, denied on October 15, 2019, and stopped on October 22, 2019?

ii. Is the applicant entitled to an attendant care benefit in the amount of $565.43 per month for the period of March 21, 2018 to date and ongoing?

iii. Is the applicant entitled to the following medical benefits:

(a) $1,891.35 for physiotherapy services, denied by the respondent on May 29, 2018?

(b) $3,341.87 for psychological services, denied by the respondent on January 2, 2019?

(c) $1,725.05 for physiotherapy services, denied by the respondent on January 23, 2019?

iv. Is the applicant entitled to the cost of the following examinations:

(a) $1,915.35 for the cost of an Attendant Care Needs Assessment, denied by the respondent on March 15, 2018?

(b) $2,195.32 for the cost of a Psychological Assessment, denied by the respondent on February 5, 2018?

(c) $1,340.20 for the cost of a Functional Impairment Evaluation, denied by the respondent on April 4, 2019?

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

vi. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

8The applicant has not established entitlement to the benefits he seeks in this application. Since no benefits are payable, no interest is owing. There is no basis for an award. The application is dismissed.

ANALYSIS

Causation

9This dispute turns on causation. It is well-established in the case law that the applicant bears the onus of establishing, on a balance of probabilities, that he is entitled to the benefits he seeks.² A threshold requirement for proving entitlement to any benefit under the Schedule is that the accident be the cause of the impairment giving rise to the claim.

10I have carefully reviewed and considered the evidence the parties have tendered. It is apparent from the record that the applicant continues to report pain, physical limitations, and psychological difficulties. However, the applicant has not established, on a balance of probabilities, that he sustained an impairment in the accident capable of supporting his claims. For the reasons set out below, the respondent is not liable to pay for the benefits claimed in this application.

Relevant medical history

11The applicant has a history of mental health challenges. In 2014, he suffered a major depressive episode triggered by the breakdown of his marriage. He was diagnosed with adjustment disorder in December 2015 after reporting interpersonal difficulties at work. He has also struggled with anxiety, insomnia, and habitual consumption of alcohol.

12The applicant has suffered from vestibular neuritis (dizziness and vertigo) for over a decade and has been advised to exercise caution while driving and climbing ladders as a result.

Accident-related injuries, assessment, and treatment

13The applicant sustained soft tissue injuries in the accident. Over the next two months, his recovery from those injuries progressed well. While the accident triggered some psychological symptoms, they were relatively minor. As detailed in my findings below, the applicant also contended with physical injuries unrelated to the accident that impacted his ability to function at work.

Soft tissue injuries and rehabilitation

14When assessed by his family physician, Dr. Wong, on June 15, 2017, the applicant reported that he had developed soreness in his mid and lower back the evening of the accident. He reported that he had attended work as a building operator the day after the accident, but with pain and increasing stiffness and headaches. He reported that his mood was “stable, but not 100%.” The applicant was diagnosed with back strain and prescribed rehabilitation. Dr. Wong’s clinical note identifies the applicant’s MDE (major depressive episode) as “in partial remission.”

15Shortly after the accident, the applicant began attending Physiomobility Don Mills for physical rehabilitation. He was initially assessed by Ms. Gita Mikal, a physiotherapist, on June 20, 2017, who diagnosed him with whiplash associated disorder and sprain and strain injuries of the thoracic and lumbar spine. Ms. Mikal indicated that she expected the applicant to make a full recovery.

16The clinical notes and records from Physiomobility show that, overall, the applicant progressed well with treatment. In July and August 2017, he attended regularly and reported improvement, reduced stress, satisfaction with treatment results and progress, and, by August 22, 2017, reported “significant improvement (90%)”.

17There is a gap in the clinical notes and records from Physiomobility suggesting the applicant did not attend for treatment between August 22, 2017 and October 30, 2017. The note from October 30, 2017 indicates that the applicant had been ill with pneumonia for three weeks. At this visit, the applicant reported that he was having difficulty at work lifting and carrying ladders and equipment. The applicant complained of bilateral hip and groin pain on November 2, 11, and 13, 2017. The applicant reported “pinching” or “sharp” pain in his left groin and the treating therapist observed increased guarding in his adductors. This is where the clinical notes and records from Physiomobility end.

“Injury to inguinal area”

18Early in his treatment at Physiomobility, on July 25, 2017, the applicant disclosed an “injury to inguinal area” he had sustained “a few weeks ago” that was preventing him from engaging in heavy lifting and impact exercises. The timing of this injury appears to roughly coincide with the date of the accident, but the record indicates that the inguinal injury was separate from the accident. An injury to the inguinal or groin area does not appear in Ms. Mikal’s June 20, 2017 assessment records or in the June 15, 2017 assessment notes of Dr. Wong.

19The applicant did not mention “pain in legs groin area esp in am since MVA / shoulders/ neck sore with activities” to Dr. Wong until October 25, 2017. At that time, Dr. Wong diagnosed the applicant with myofascial pains. Dr. Wong ordered an x-ray of the bilateral hips, which found mild osteopenia (loss of bone mass), a degenerative condition.

20Five days later, on October 30, 2017, the applicant reported bilateral hip pain to his treating physiotherapist at Physiomobility for the first time. The applicant received treatment for hip and groin pain in November 2017.

Psychological sequelae, assessment and treatment

21On August 17 and 22, 2017, the applicant reported difficulty sleeping and concentrating at work to his treating practitioner at Physiomobility. He had “witnessed a stressful event” at work and was “very much affected by it. Since the accident his reactions are signified to all stressful events and his sleep is affected.” The applicant was referred for a psychological assessment.

22Ms. Leila Abbaszadeh, a social worker and registered psychotherapist under the supervision of psychologist Dr. Fahimeh Aghamohseni, assessed the applicant on September 29, 2017, issuing a report the next day. Based on Ms. Abbaszadeh’s recommendations, the respondent approved a round of psychological treatment.

Groin injury during at-home exercises and slip and fall injury

23On January 27, 2018, the applicant injured his groin while doing recommended at-home exercises. At Dr. Wong’s recommendation on January 29, 2018, he took time off work to recover.

24While off work due to the groin injury, on February 11, 2018, the applicant fell on icy stairs. The details of this event are set out in the March 25, 2018 Form 1 (Assessment of Attendant Care Needs) completed on the applicant’s behalf.

25The applicant reportedly attended the emergency department of North York General Hospital with “excruciating pain”. He was assessed with a full-grade left adductor tear and a hematoma on his left groin which grew, prompting the applicant to return to hospital the next day. An ultrasound showed a hematoma and a blood clot, and the applicant was advised that this would take six to eight weeks to heal. At this visit, the applicant developed a chest infection and received intravenous antibiotics for 10 days. The applicant returned to work on April 17, 2018 with modified duties.

Income replacement benefit

Agreed facts and scope of the dispute

26It is not in dispute that on the day after the accident, the applicant returned to work on a full-time basis. He continued working until January 26, 2018, when he commenced a three-month leave from work. The applicant submits that his accident-related injuries were the reason for this work stoppage. Dr. Wong’s clinical notes and records contradict this submission. The applicant ceased work due to the groin injury he sustained while doing at-home exercises as reported to Dr. Wong on January 29, 2018.

27Regardless, the respondent paid an income replacement benefit for this period, commencing on January 27, 2018 and ending on April 8, 2018.

28The applicant returned to work full-time in April 2018 until December 22, 2018, when he was asked by his employer to leave as he could no longer be accommodated on modified duties.

29Again, the respondent paid an income replacement benefit to the applicant from December 22, 2018 to October 22, 2019, when it determined he did not meet the test for entitlement and terminated the benefit.

30The dispute over the applicant’s entitlement to an income replacement benefit relates to the period from October 23, 2019 and onwards.

The relevant test

31To establish entitlement to the income replacement benefit he seeks, the applicant, who was employed at the time of the accident, must demonstrate on a balance of probabilities that, pursuant to s. 5(1) of the Schedule, as a result of and within 104 weeks of the accident, he suffered a substantial inability to perform the essential tasks of that employment.

32Section 6(1) of the Schedule also applies in that it limits payment of an income replacement benefit after the first 104 weeks of disability to insured persons who can demonstrate that they suffer a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

33The respondent argues that the pre-104 week “substantial inability” test applies because the applicant’s period of disability only commenced on December 22, 2018, and the stoppage of benefits took place on October 22, 2019. The post-104 week “complete inability” standard would only apply to benefits beyond December 19, 2020. Because the applicant claims an income replacement benefit from October 23, 2019 to date, I must consider whether he satisfies both the “substantial inability” and “complete inability” tests as set out in the Schedule.

34For the following reasons, I find the applicant has failed to establish that he meets either test for entitlement to an income replacement benefit. He has not shown that as a result of the accident, he suffered a substantial inability to perform the essential tasks of his employment entitling him to an income replacement benefit within 104 weeks of the accident. An applicant who has failed to establish that his impairment is a result of the accident cannot satisfy the “complete inability” test for entitlement to an income replacement benefit after 104 weeks of disability.

The parties’ submissions

35The applicant submits he is entitled to receive an income replacement benefit on an ongoing basis. He submits he has been completely unable to work since December 22, 2018.

36The applicant submits that he is physically and emotionally unable to work in any job for which he is suited by education, training or experience. He submits he has been unable to return to any work he could reasonably engage in considering his employment history, skills and expertise.

37The Vocational Evaluation conducted on July 2, 2019 by Ms. Ruth Billet found the applicant suitable for the positions of building operator, concierge, information clerk and security officer. It noted he had below average sentence comprehension and math computation. He had low scores in general learning ability, form perception and clerical perception, a below average score in numerical aptitude, and mid-average scores in spatial, verbal and motor coordination. The applicant submits that based on these findings, he is not well-suited to the positions of information clerk and security officer.

38The applicant submits that as a result of the accident, and particularly after he ceased being able to work, he has become excessively dependent on alcohol, making him unfit for his previous jobs and all suggested alternatives. The applicant submits he is physically unable to complete many of the tasks associated with the suggested positions and psychologically and cognitively unable to motivate himself as would be required.

39The applicant submits that a substantial amount of upgrading and retraining will be required for him to become fit for the positions suggested by the vocational assessor, and where absolutely no skill is required, the position cannot be considered commensurate with his prior status, income and skill level.

40The applicant submits his entitlement to an income replacement benefit is supported by a March 23, 2019 Disability Certificate (OCF-3) completed by chiropractor Dr. Dominic Minnella and by the records of his family physician as of August 2019, Dr. Kasthuri Sithamparanathan, prepared in support of his ODSP and CPP applications. Dr. Minnella assessed the applicant for the first time on the date he completed the OCF-3 in March of 2019. The OCF-3 states that the applicant reports no pre-accident condition, disease or injury that might affect his functional ability. Dr. Sithamparanathan’s clinical notes and records suggest that he had not been provided with records of the applicant’s past medical history. I give limited weight to Dr. Minnella’s and Dr. Sithamparanathan’s opinions on the causation of any functional impairment because of they do not demonstrate understanding of the applicant’s pre-existing conditions or post-accident treatment – information vital to determining causality.

41The respondent submits that the applicant fails to meet the test for entitlement to an income replacement benefit. It submits he demonstrated an ability to work full-time on full or modified duties for a year and a half after the accident at full pay. Despite his family physician’s recommendation that he apply for an office job, the respondent submits the applicant has not demonstrated an effort to find work. The respondent submits that any impairment preventing the applicant from working is due not to the accident, but to his pre-existing conditions and an unrelated post-accident slip and fall.

Conclusion on the income replacement benefit issue

42The applicant has not established his entitlement to an ongoing income replacement benefit. He has not demonstrated that his ongoing inability to work is a result of an accident-related impairment.

43In the accident, the applicant sustained physical injuries that were soft tissue in nature, and he recovered well from those injuries, reporting 90% improvement by the end of August 2017. He was able to work on full duties, full time and at full pay for seven months after the accident. He was only prevented from working after injuring his groin in January 2018 during home exercises.

44I find that the lunges and stretches the applicant was doing when he “tweaked” his groin in January 2018 were recommended to treat a separate inguinal injury unrelated to the accident, as shown in the clinical notes and records of his treating physiotherapist at the time. He then sustained a full grade left adductor tear in a slip and fall in February 2018.

45I find that the slip and fall injury caused immediate, excruciating pain, required emergency medical treatment, and prevented the applicant from working for two months. The two injuries in early 2018, but particularly the adductor tear, are the likely cause of any physical inability the applicant may have to function at work.

46The evidence does not establish that the applicant experienced psychological symptoms as a result of the accident that would have rendered him emotionally, psychologically or cognitively unable to function or motivate himself in any job. There is no reliable basis for a finding that the accident resulted in psychological impairment. Ms. Abbaszadeh’s conclusion that the accident had caused the applicant’s psychological difficulties is undermined by the fact that she was unaware of his pre-existing mental health conditions. Dr. Wong does not explain the meaning of his notation that the applicant’s MDE was in “partial” remission anywhere in his clinical notes and records, but he makes no referral for psychiatric assessment or treatment.

47In short, the accident is not a ‘but for’ cause of any physical or psychological impairment.³ The applicant has not met his onus in establishing that his physical and psychological limitations are a result of his accident-related injuries, and therefore he is not entitled to payment for any loss of income associated with those limitations.

Attendant care benefit

Relevant legal test

48Section 19 of the Schedule provides that attendant care benefits shall pay for all reasonable and necessary expenses incurred as a result of the accident for services provided by an aide or attendant.

49Section 3(7)(e) provides that an expense for goods or services under the Schedule is not “incurred” unless:

o the insured person has received the goods or services or has paid the expense (or has promised or is obligated to pay it); and

o the person providing the goods or services did so during their ordinary employment or they sustained an economic loss as a result of providing the goods or services.

Positions of the parties

50The applicant submits that he is entitled to attendant care benefits because he relies heavily on his girlfriend to do household and personal care tasks. He submits he requires assistance in dressing his lower body, with cooking and meal preparation, hygiene in the bedroom and bathroom and with his medications.

51The applicant submits that attendant care benefits should be deemed incurred under s. 3(8) of the Schedule because the respondent unreasonably withheld or delayed payment of the benefit.

52The respondent submits that attendant care benefits are not reasonable and necessary as a result of the accident. It submits that the applicant provided a Form 1 (Assessment of Attendant Care Needs) on July 24, 2018, over a year after the accident and approximately four months since the form had been completed. It submits that the delay in submitting the documentation required to support entitlement shows that the applicant did not in fact need attendant care. It submits that by the time the documentation was submitted, it was stale.

53The respondent further submits that there is no compelling evidence to show that the applicant’s soft tissue injuries necessitate a personal care aide. It submits he has consistently reported independence in self-care tasks. The respondent also submits that the applicant had to take time off work because of a groin injury unrelated to the accident, and that the claim for attendant care benefits arises from that injury. It submits that there is no evidence to support a finding that attendant care expenses have been incurred. There is no treatment provider identified, and nothing to substantiate economic loss sustained by the applicant’s girlfriend due to her assisting him.

Conclusion on attendant care issue

54The applicant has not met his onus of establishing that the services of an aide or attendant have been incurred. He has not argued or provided evidence that his girlfriend provided attendant care during her ordinary employment or that she sustained an economic loss by providing attendant care. In relying on the Schedule’s deemed incurred provision, the applicant appears to concede that the expenses have in fact not been incurred.

55I find that in the circumstances, where the applicant has not established the accident as the cause of his impairment, the deemed incurred provision does not apply. The evidence does not support a finding that the insurer unreasonably withheld or delayed payment of a benefit in respect of the claimed expense.

56The applicant is not entitled to the claimed attendant care benefit.

Medical benefits

57The parties dispute the following three claims for treatment and three for assessments:

Claim amount

Nature of claim

Date submitted

Date denied

$1,891.35

Physiotherapy services

May 15, 2018

May 29, 2018

$3,341.87

Psychological services

December 3, 2018

January 2, 2019

$1,725.87

Physiotherapy services

October 23, 2018

January 23, 2019

$1,915.35

Attendant Care Needs Assessment

March 13, 2018

March 15, 2018

$2,195.32

Psychological Assessment

January 25, 2018

February 5, 2018

$1,340.20

Functional Impairment Evaluation

March 23, 2019

April 4, 2019

The test for medical benefits

58Under s. 15(1) of the Schedule, the applicant must demonstrate that benefits he seeks are reasonable and necessary as a result of the accident.

Physiotherapy services

59I find that the physiotherapy services claimed in the treatment plans dated May 15, 2018 and October 23, 2018 are not reasonable and necessary as a result of the June 13, 2017 accident.

60The applicant submits that his injuries are chronic and much more serious than uncomplicated soft tissue injuries and that more treatment is reasonable and necessary as a result of the accident.

61The plans were submitted 11 and 16 months after the accident respectively. While pain reduction, increased range of motion and strength, and a return to pre-accident activities of normal living are reasonable treatment goals, the treatment must also be necessary as a result of the accident. The records of Dr. Wong show that the applicant was reporting neck and back pain well after the accident, but the evidence does not link the accident to these complaints.

62Again, the applicant’s accident-related physical injuries were minor, soft tissue injuries. He recovered well from those injuries and reported 90% improvement by the end of August 2017. It does not follow that these injuries would re-emerge roughly 11 and 16 months later, requiring facility-based treatment.

63The applicant was also diagnosed with degenerative disc disease in January 2019 after an MRI of the lumbar spine showed disc bulging and protrusion and abutting nerves. The diagnostic imaging results suggest that the applicant’s persistent back pain is unrelated to the accident.

64The respondent denied both treatment plans for physiotherapy services based on the opinion of its IE physiatry assessor, Dr. Anna Czok. Based on her assessment of the applicant, Dr. Czok opined that he had sustained cervical spine strain/sprain and thoracolumbar strain/sprain in the accident; that from a musculoskeletal perspective he had reached maximum medical recovery; and that he required no further treatment. Dr. Czok’s opinion is corroborated by the clinical notes and records of Dr. Wong and Physiomobility, and it is one that I accept.

Psychological Assessment and psychological services

65The applicant claims that the treatment plans for a Psychological Assessment and psychological services, both proposed by Dr. Andrew Shaul, are reasonable and necessary as a result of the accident. The applicant submits that it was necessary for Dr. Shaul, his new psychologist, to conduct a fresh assessment.

66The respondent’s denial of the disputed Psychological Assessment cited its prior approval of such an assessment, stating that the proposed assessment was a duplication of services. The respondent submits that Dr. Shaul appeared to be unaware of the treatment proposals made in the prior assessment.

67The OCF-18 (Treatment and Assessment Plan) for the Psychological Assessment, completed by Dr. Shaul, indicated that the purpose of the assessment was to better understand the applicant’s history and whether he would benefit from therapy. However, Dr. Shaul indicated that it was “unknown” to him whether the applicant had received treatment in the past year.

68The applicant underwent the assessment on March 3, 2018, after the respondent denied payment. The assessment consisted of a clinical interview and psychometric testing conducted by Mr. Patrick Beedling, a registered psychotherapist with a Master of Education supervised by Dr. Shaul.

69The report indicates that part of the assessment was assigned to Mr. Beedling. It is not clear what part of the assessment was conducted by Dr. Shaul. The report contains opinions, diagnoses and recommendations, but again, it is not clear from the report what role Dr. Shaul played in the assessment because the extent of his supervisory role is not identified. This information is critical to the reliability of the evidence because a registered psychotherapist with a graduate degree in education is not qualified to diagnose psychological conditions.

70Additionally, the section of the report on “Treatments Received to Date” lists physiotherapy, acupuncture, and massage therapy, but makes no mention of the applicant’s recent round of psychotherapy. Although the applicant did not tender the clinical notes and records from this round of treatment, it is an agreed fact that the treatment took place. The weight of the recommendation for counselling is undermined by this omission.

71I find that the disputed Psychological Assessment duplicated services already provided to the applicant by Ms. Abbaszadeh and Dr. Aghamohseni. To show that a fresh assessment was necessary the applicant would need to establish, at minimum, that Dr. Shaul had reviewed and considered the September 2017 assessment report. A review of his medical records would also have provided Dr. Shaul with some of the information the assessment intended to gather.

72The treatment plan for psychological services flowed from the recommendations in the Psychological Assessment. This OCF-18, also completed by Dr. Shaul, indicates that the applicant has no pre-existing conditions. In my view, an appreciation of the applicant’s history of psychological conditions is required to properly assess symptom causation. Also, the OCF-18 is at odds with the assessment report that made the recommendations, which identified that the applicant’s pre-existing depression was treated with prescription medication. The discrepancy further calls into question the degree of Dr. Shaul’s involvement in the assessment itself.

73The respondent submits that psychological services are not reasonable and necessary as a result of the accident. It submits that there is no mention of accident-related psychological impairment in the clinical notes and records of Dr. Wong. The respondent submits it already approved one round of psychological treatment in good faith.

74The respondent submits that the cause of the applicant’s psychological complaints is not the accident: he had a longstanding history of depression, stress and anxiety that was controlled to varying degrees in the months leading up to the accident.

75It is evident that the applicant continued to struggle with depressive symptoms after the accident. However, he has not met his onus of establishing that the accident triggered the onset of a major depressive episode or other clinical disorder.

76First, the applicant continued to work full-time for seven months after the accident and reported independence in his self-care. Second, to psychologist Dr. Shahriar Moshiri, who conducted an Insurer’s Examination on June 1, 2019, the applicant specifically reported, “psychologically, I am able to do my job. Physically, I can’t.”. Third, to Dr. Grigory Karmy, a chronic pain assessor, the applicant disclosed that the onset of his depression occurred after his separation from his ex-wife in 2014. He was referred to a psychiatrist in early 2017 due to low mood relating to his divorce proceedings. The applicant reported to Ms. Abbaszadeh on September 29, 2017 that his divorce was finalized approximately one month earlier. The applicant has not presented compelling evidence that it was the accident, and not these significant stressors documented in his past medical records, that triggered a psychological impairment.

77For these reasons, the disputed Psychological Assessment and psychological services are not reasonable and necessary as a result of the accident and are not payable.

Attendant Care Needs Assessment

78Section 25(1)4 provides that an insurer is obligated to pay reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs (Form 1) under s. 42, including any assessment or examination necessary for that purpose: see M.G. v. Echelon General Insurance Company [Echelon];⁴ 17-001328 v. Allstate Insurance Company.⁵

79The disputed Attendant Care Needs Assessment is governed by s. 25(1)4 of the Schedule, not s. 15(1). The test for medical benefits under s. 15 – that they be reasonable and necessary as a result of the accident – is not the relevant test. However, s. 25(1)4 includes the words “reasonable” and “necessary” and the Tribunal has held that both elements are required for an assessment or examination to be payable under this provision: see Echelon at para. 27.

80Examinations that are medical benefits under s. 15 require an applicant to demonstrate that there is a reasonable possibility that he has the condition an assessment will investigate: see C.G. v The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT). But again, s. 15 is not the governing provision here. To establish entitlement to the Attendant Care Needs Assessment, the applicant need not demonstrate that it is “reasonably possible” that he would require attendant care. However, the applicant must establish that the assessment by an occupational therapist or nurse was necessary for the purpose of completing the Form 1 and that the fees incurred were reasonable.

81The applicant submits the disputed Attendant Care Needs Assessment is payable under s. 25(1)4 of the Schedule because it was prepared by an occupational therapist, the fee was reasonable, and it was incurred. Although the applicant asserts that the assessment was both reasonable and necessary, he makes no submissions directly on the point of whether the assessment was necessary for the purpose of completing the Form 1.

82The respondent submits that there was no compelling evidence to show that the applicant’s soft tissue injuries had deteriorated to the point that attendant care was necessary, and it denied the plan on this basis.

83The applicant has tendered an invoice to establish that the expense associated with the assessment was incurred. An occupational therapist conducted the assessment. The falls within the maximum prescribed for a single assessment in s. of the Schedule and is not unreasonable. But the applicant has not established that the Attendant Care Needs Assessment was necessary for completing the Form 1.

84Although the Tribunal has held that “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”,⁶ the applicant still bears the onus of establishing necessity. In my view, the necessity requirement in s. 25(1)a encompasses the requirement of causation – the application for attendant care which the assessment supports must arise from the accident.

85In this case, the OCF-18 the applicant submitted seeking approval for the assessment cited injuries and functional impairments unrelated to the accident –the injuries in January and February of 2018, and the difficulties at work that followed. These injuries and impairments formed the basis of the assessment. Section 19(1)a of the Schedule provides that attendant care benefits shall pay for expenses incurred “as a result of the accident”. It would be an absurd result for insurers to be automatically liable for assessments under s. 25(1)4 for claims for attendant care benefits that do not arise from accident-related injuries.

86Because the applicant has not established that he needed an assessment to apply for attendant care benefits arising from the accident, the respondent is not liable to pay the cost of the assessment pursuant to s. 25(1)4 of the Schedule.

Functional Impairment Evaluation

87The applicant underwent a Functional Impairment Evaluation on November 19, 2019 with Dr. Minnella, a chiropractor at Toronto Healthcare Inc. I have already outlined my reasons for giving minimal weight to Dr. Minnella’s opinions on the causation of the applicant’s injuries or impairments.

88The respondent denied the plan for a Functional Impairment Evaluation based on Dr. Czok’s opinion, based in part on the applicant’s own reports that he remained independent in self-care.

89I find that a Functional Impairment Evaluation, proposed in March 2019, is not reasonable and necessary as a result of the accident under s. 25(1)4 of the Schedule. As discussed, the applicant demonstrated the ability to function at work full-time for seven months after the accident. Given the applicant’s pre-existing conditions and non-accident related injuries, I have significant doubt as to the causal link between the accident and any lasting work-related and in-home functional impairments the Functional Impairment Evaluation sought to investigate. The applicant has not met his onus in establishing entitlement to the cost of this assessment.

Award under Regulation 664

90The applicant submits that the respondent should be found liable to pay an award under s. 10 of Regulation 664. After denying his claim for a Functional Impairment Evaluation, the respondent requested six further Insurer’s Examinations to determine his entitlement to an income replacement benefit including its own Functional Capabilities Examination. The applicant submits that this is conduct deserving of an award.

91The applicant has not established that the respondent unreasonably withheld or delayed the payment of benefits. It is open to an insurer to request Insurer’s Examinations under s. 44 as often as is reasonably necessary to assist in determining an insured person’s entitlement to benefits. The applicant has not presented evidence to show conduct on the part of the respondent meriting an award under Regulation 664.

CONCLUSION

92The applicant has not established entitlement to the benefits claimed in this application. Since no benefits are payable, no interest is owing. There is no basis for an award.

93The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635.
3. 3Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31.
4. 42020 CanLII 87929 (ON LAT).
5. 52018 CanLII 39376 (ON LAT).
6. 62020 CanLII 87929 (ON LAT) at para. 28.