Citation: Ladia v. Northbridge Commercial Insurance Corporation, 2022 ONLAT 20-011797/AABS

Licence Appeal Tribunal File Number: 20-011797/AABS

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

Between:

Honor Ladia

Applicant

and

Northbridge Commercial Insurance Corporation

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Celina De Vuono, Counsel

For the Respondent:

Nicholas M. Wine, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant was involved in an automobile accident on December 5, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues to be decided in the hearing are:

1. Is the applicant entitled to $1,350.00 for chiropractic services proposed by Collison Chiropractic in a treatment plan/OCF-18 (“OCF-18”) dated September 27, 2018?

2. Is the applicant entitled to $2,141.70 for occupational therapy services, proposed by DMA Rehability in an OCF-18 dated May 21, 2019?

3. Is the applicant entitled to $2,200.00 for speech therapy services, proposed by DMA Rehability in an OCF-18 dated May 3, 2019?

4. Is the applicant entitled to $1,250.00 for chiropractic services proposed by Collison Chiropractic in an OCF-18 dated October 18, 2019?

5. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

a. The applicant is not entitled to the treatment plans for chiropractic services or speech therapy services as he has not met his burden of proving that these treatment plans are reasonable and necessary;

b. The applicant is entitled to a portion of the treatment plan for occupational therapy services, namely $150.00 for a heating pad, plus interest in accordance with s. 51 of the Schedule. However, the applicant is not entitled to the remaining of the portion of the treatment plan for occupational therapy services, as he has not met his burden of proving that the remaining portion is reasonable and necessary.

c. No award is payable.

ANALYSIS

Are the treatment plans reasonable and necessary?

4Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. The applicant bears the burden of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident.

5To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

Are the chiropractic treatment plans in the amount of $1,350.00 and $1,250.00 reasonable and necessary?

6The applicant asserts that he continues to experience physical, psychological and cognitive impairments as a result of the accident. With respect to his physical complaints, the applicant was diagnosed by Dr. Jeff Collision, chiropractor, with a number of accident-related injuries, including whiplash associated disorder – 3 (“WAD-3”), thoracic outlet syndrome, sprains/strains of the cervical, thoracic and lumbar spine, shoulders, arms, wrists, hands, knee and ankle, and meniscus tear, as noted in two Disability Certificates² (“OCF-3”s), two progress reports³, and OCF-18s dated October 18, 2019 and March 25, 2021⁴.

7The applicant submits that chiropractic treatment with Dr. Collision reduces his pain and overall stiffness for a few days and allows him to continue working, but then his pain returns depending on his level of activity. However, the applicant asserts that pain relief in and of itself is a legitimate treatment goal, citing the decisions Cubello v. Guidolin⁵, Violi v. General Accident Assurance⁶ and L.D. v. Aviva.⁷ Dr. Collision noted the applicant’s progress in his progress reports, and the applicant submits that his family physician, Dr. Jijan John, recommended that the applicant “continue therapy” in January 2019.⁸ As such, the applicant submits that the treatment goals listed in the OCF-18s in dispute, including pain reduction, increased strength and range of motion, decreased discomfort with work activities and activities of daily living (“ADL”), are being met to a reasonable degree and that the OCF-18s in question are reasonable and necessary.

8In contrast, the respondent submits that the applicant sustained only uncomplicated soft tissue injuries and relies on the Insurer’s Examination (“IE”) Physiatry Reports prepared by Dr. Saad Naaman, physiatrist, dated April 13, 2018, October 18, 2018, April 2, 2019 and June 12, 2019. Dr. Naaman diagnosed the applicant with cervical sprain/strain and right scapular sprain and strain and found that the applicant’s current complaints were due to pre-existing back and neck pain⁹ and that further treatment was not reasonable and necessary. The respondent submits that the applicant had already been receiving chiropractic treatment two weeks prior to the accident.

9The respondent also submits a transcript of the applicant’s cross-examination dated October 7, 2021 and argues that the applicant has admitted in testimony that chiropractic treatment has not provided any permanent improvement in his functional abilities¹⁰, that his family physician has never specifically recommended chiropractic treatment¹¹ and that the applicant has reported that his neck pain has increased since 2019, while he was receiving chiropractic treatment¹². As such, the respondent submits that the applicant has failed to establish the effectiveness of further chiropractic treatment.

10Upon review of the submissions of the parties and the medical evidence, I find that the applicant is not entitled to the disputed OCF-18s for chiropractic treatment, because he has not provided sufficient evidence to meet his burden of proof that they are reasonable and necessary.

11The applicant has not directed me to any medical evidence, such as diagnostic results, hospital records or clinical notes and records (“CNR”s) from his family physician, to establish that, outside of concussion/brain-related impairments, he suffered from any physical injuries other than soft tissue strains. The applicant also did not submit any evidence to address that his diagnostic imaging of his knees, shoulder and neck were normal¹³.

12The applicant has attended at chiropractic treatment since the accident and admits to having attended prior to the accident for pain to his neck and upper back¹⁴. He has reported that post-accident he has had chiropractic treatment consistently, 1-2 times a week, other than from October to December 2018 (due to treatment denial) and from December 2020 to March 2021 (due to the pandemic).¹⁵

13Therefore, it appears that the applicant has been regularly attending chiropractic treatment for years since the accident, with little sustained benefit. The applicant self-reports that chiropractic treatment is beneficial. However, this is not similarly corroborated by other medical professionals.

14Although the applicant asserts that his family physician recommended that he “continue therapy”¹⁶ in January 2019, from my review of the CNRs, it appears that Dr. John was recommending physiotherapy rather than chiropractic treatment. In the CNR entry dated January 21, 2019, Dr. John recommended heat, physiotherapy and ibuprofen for the applicant’s neck and shoulder pain¹⁷. In the entry dated January 30, 2019, Dr. John specifically stated “Physio suggested (patient goes to chiro)”¹⁸. In addition, in Dr. John’s response letter to the applicant’s counsel dated August 22, 2018, the doctor again suggested that physiotherapy may improve the applicant’s symptoms.¹⁹

15Therefore, the CNRs of the applicant’s family physician appear to indicate that Dr. John was aware that the applicant was attending chiropractic treatment, but specifically recommended physiotherapy instead. Similarly, in the applicant’s cross-examination transcript, the applicant stated that Dr. John had never specifically recommended chiropractic treatment.²⁰

16The applicant states that the respondent’s IE assessor supported chiropractic treatment - “Dr. Mustafa noted ongoing chiropractic treatment was beneficial for Honor’s symptom relief”²¹. However, this appeared to be a note of the applicant’s self-reports rather than an assessment of its efficacy by Dr. Mustafa and therefore, I found this argument to be unpersuasive.

17Moreover, I note the respondent’s submissions that the applicant’s testimony during his cross-examination was that his neck pain had worsened since August 2019, despite having attended at chiropractic treatment for years.

18In his reply submissions, the applicant asserts that due to his post-accident-related issues with memory and confusion, some inconsistencies in the reported levels of improvement would not be surprising²². However, I find the question posed to the applicant in the transcript was clear, namely, did his neck pain worsen since 2019, even with chiropractic treatment. The applicant’s reply was “yes” ²³.

19As such, I find that the applicant’s self-reporting that he felt better after therapy although the pain would return, is insufficient to establish that a proposed treatment is reasonable and necessary. There is little evidence as to how this proposed treatment was achieving its goals, or evidence establishing that the proposed treatment is reasonable and necessary as a result of the injuries suffered in the accident. While pain relief can be a legitimate goal for treatment, the applicant has not led sufficient objective evidence of physical injury outside of soft-tissue injuries and concussion-related impairments that would warrant further chiropractic treatment.

Is the applicant entitled to $2,141.70 for occupational therapy services?

20The applicant submitted an OCF-18 dated May 21, 2019, for occupational therapy (“OT”) treatment and assistive devices, such as a heat pad, grab bars for the bathroom and a mattress.²⁴ Ms. Laura Carr, occupational therapist, recommended these treatments and devices in the OCF-18 in order to address the applicant’s post-concussion syndrome, sprain and strain of the cervical spine, muscle strain of the shoulder and other headache symptoms²⁵.

21The applicant relied on the OT Progress Report of Ms. Carr, dated April 26, 2019²⁶, as evidence of his ongoing physical and cognitive impairments and the reasonableness and necessity of the OCF-18 in dispute. The applicant further asserts that the OT treatment sessions already provided by Ms. Carr have been helpful in terms of coping strategies for pacing for some of his daily activities, and that additional sessions would be helpful.²⁷

22The applicant submits that his cognitive symptoms have been noted by Dr. Trevor Hjertaas, psychologist, who diagnosed the applicant with a complicated minor traumatic brain injury²⁸. The applicant also submitted that even the respondent’s IE assessor, Dr. Abdalhakim Mustafa, neurologist, diagnosed the applicant with a concussion with post-concussive syndrome, post-traumatic headaches and a mild cognitive impairment.²⁹

23The respondent submits that since there is no evidence that the proposed occupational therapy services have been incurred, the OCF-18 in dispute is not payable, pursuant to the Tribunal decision 17-002313 v. Aviva Insurance Canada³⁰.

24The respondent further asserts that the OCF-18 in dispute is not reasonable and necessary, as the applicant sustained only uncomplicated soft tissue injuries from the accident and is able to work full-time at a physically and cognitively demanding job and as such is able to fulfill his activities of daily living. Further, the respondent relies on the IE assessment of Dr. Naaman dated June 12 2019³¹ and the IE assessment of Ms. Seren Abraham, occupational therapist, dated October 10, 2018, who opined that the applicant demonstrated a functional ability to perform his applicable personal care tasks ³².

25Upon review of the medical evidence and submissions, I find that the applicant is entitled to one of the assistive devices proposed in the OCF-18, namely the heating pad. However, the applicant has not adduced sufficient evidence that the remaining assistive devices, proposed OT treatment or the remaining documentary or transportation expenses are reasonable and necessary, or payable.

26Firstly, with respect to the issue of whether a treatment plan must be incurred to be payable, I agree with the applicant’s submissions that a treatment plan does not need to be incurred for it to be payable. As noted by the applicant, this issue has been addressed by the Divisional Court in Aviva Insurance Company of Canada v. Danay Suarez.³³ In this decision, Aviva had argued that the Tribunal had erred in law when it ordered Aviva to pay for treatment plans when there was no evidence that the treatment had been incurred prior to the hearing. The Divisional Court held that the insurer’s position was:

“untenable on any interpretative approach to the legislation. Not only does its proposed interpretation offend the remedial consumer-oriented purpose of the legislation and regulations, it also ignores the clear wording of s.280(1) of the Insurance Act which identifies entitlement and quantum as mutually exclusive issues, and s.55(1) of the Schedule which is silent on a claimant’s failure to “incur” expenses as a restriction to initiating proceedings.”

27With respect to the cost of $150.00 for a heating pad, I find that this is reasonable and necessary, as heat has been consistently noted as one of the treatment modalities that the applicant finds alleviates his pain. In the IE assessment of Ms. Abraham, one of the first items listed under pain management strategies, was “Heat”³⁴. In addition to the applicant’s self-reports that heat helps him, Dr. John, the applicant’s family physician has recommended heat as a treatment method³⁵. This item is listed as $150.00, which I find to be a cost-effective recommendation for pain management.

28Further, with respect to the cost of $160.00 for grab bars for the bathroom for safe transfers, Ms. Abraham noted in her OT IE Assessment that the applicant was able to stand and transition at the toilet, bath or shower “with external support”³⁶. As such, I find that the grab bars are a reasonable safety precaution. However, in his Affidavit sworn August 23, 2021, the applicant states that a grab bar for the bathtub was provided to him as a birthday present and installed, and that he has replaced his toilet with a higher one³⁷. As such, it does not appear that these grab bars are now necessary and therefore, I find they are not payable on this basis.

29With respect to the remaining items listed in the OCF-18 in dispute, I find that the applicant has not led sufficient evidence to show that they are reasonable and necessary, or payable.

30Firstly, the applicant has confirmed that the items labelled “Other goods” is a mattress for $394.37. However, the applicant confirmed that he had purchased the mattress prior to submitting the applicable OCF-18. As such, I agree with the respondent’s submissions that the cost of the mattress is not payable, since s. 38(2) of the Schedule provides that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit, if that expense is incurred before the person submits a treatment and assessment plan.

31Finally, with respect to the items listed in the remainder of the OCF-18, I find that the applicant has not led sufficient evidence that they are reasonable and necessary. The OCF-18 lists three 1.5hr OT sessions for training, motor and living skills, together with documentation support activity, provider travel time, and additional fees.

32Although the applicant states that the additional OT sessions are needed to assist him to engage in his pre-accident activities, I find that the applicant has not led sufficient evidence that he suffers from such functional limitations.

33The applicant returned to work full-time four months after the accident, with no restrictions. By the time the OCF-18 was submitted, the applicant had been back at work full-time for over a year. Further, the applicant stated that he was independent in his ADLs, during his cross-examination³⁸.

34Some of the stated goals on the OCF-18 were: a return to pre-accident work activities, return to activities of normal living and increased independence. However, the applicant has not provided sufficient objective medical evidence that he is restricted in his ADLs or independence or has been unable to return to his pre-accident work activities. Similarly, Dr. Naaman opined in the physiatry IE Report dated June 12, 2019, that there are no objective physical impairments that would warrant a need for OT treatment³⁹.

35As such, I find that the applicant has not adduced sufficient evidence to establish, on a balance of probabilities, that the additional OT sessions proposed in the OCF-18, along with the corresponding fees or the assistive devices other than the heating pad, are reasonable and necessary or payable.

Is the applicant entitled to $2,2,00.00 for speech therapy services?

36The applicant submitted an OCF-18 dated May 3, 2019, prepared by Ashley Timmermans, speech language pathologist, for a cognitive communication assessment⁴⁰. The applicant asserts that the proposed assessment is reasonable and necessary, due to his ongoing cognitive symptoms, which impact his work and daily activities. He notes that this assessment was recommended by both Ms. Timmermans and Ms. Carr. and that even the respondent’s IE neurologist noted the applicant’s cognitive symptoms.

37In contrast, the respondent submits that the proposed assessment is not reasonable and necessary and would be duplicative, as the applicant has already undergone cognitive assessments and treatment with Dr. Trevor Hjertaas, neuropsychologist. The respondent further relies on the IE assessment of Dr. Mustafa dated August 8, 2019, where he opined that the proposed assessment was not reasonable and necessary and that “from a neurological standpoint [the applicant’s] prognosis is “good”⁴¹.

38I find that the applicant has not established that the proposed cognitive communication assessment is reasonable and necessary.

39The purpose of the proposed assessment was identified on the OCF-18 as assessing the applicant’s communication and language skills and to return the applicant to his ADLs. However, the applicant has not provided sufficient evidence to establish that he is restricted in his ADLs and therefore, has not met his evidentiary onus.

40With respect to the assessment of the applicant’s cognitive functioning, the respondent’s IE assessor Dr. Mustafa, conducted two neurological assessments. The doctor noted the applicant’s self-reports of cognitive complaints and twice opined that from a neurological standpoint the proposed cognitive communication assessment was not needed. Dr. Mustafa noted the specific areas where he felt he was not qualified to provide a conclusion. Namely, Dr. Mustafa stated that he was deferring to a psychologist with respect to psychological symptoms and a physiatrist/orthopaedic surgeon with respect to pain related symptoms. However, Dr. Mustafa did not find that an additional cognitive communication assessment was warranted or that he needed to defer to an additional professional for such an assessment.

41I note as well that in the matter at hand, the applicant reported that he was already seeing Dr. Hjertaas for neurocognitive treatment and that it was helpful. In his testimony at the cross-examination, the applicant confirmed that he was receiving treatment from Dr. Hjertaas for issues such as forgetfulness, confusion and task completion⁴². Although the applicant subsequently stated that he had “recently” been denied further neurocognitive treatment with Dr. Hjertaas, given that the cross-examination of the applicant took place more than two years after the OCF-18 in dispute was submitted, it is clear that the applicant did receive neurocognitive treatment either at the time the OCF-18 was submitted, or subsequently.

42The applicant asserts that it is common for injured persons to treat cognitive impairments with multiple health practitioners. However, the applicant has not provided evidence as to how this cognitive communication assessment differs from the assessments and treatments he has already received and why this assessment is necessary in addition to previous treatment.

43As such, I find that the applicant has not adduced sufficient evidence to establish that the proposed OCF-18 for a cognitive communication assessment is reasonable and necessary, as I find this to be a duplicative service.

Interest and Award

44As I find that the applicant is entitled to a portion of the OCF-18 for occupational therapy services for the cost of a heating pad, the applicant is also entitled to interest on such, in accordance with s.51 of the Schedule.

45I find that the applicant is not entitled to an award for unreasonably withheld or delayed payments.

46Section 10 of Regulation 664 states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum up to 50 percent of the amount to which the person was entitled to at the time of the award together with interest.

47Although I have found that the applicant is entitled to the cost of an assistive device, this does not automatically entitle the applicant to an award. It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Regulation 644 the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and the evidentiary onus is on the applicant to demonstrate this.

48In this case, the applicant has not established that the respondent acted unreasonably in withholding or delaying payment and so, is not entitled to an award.

CONCLUSION AND ORDER

49For the reasons outlined above, I find that:

(i) The applicant is not entitled to the two OCF-18 for chiropractic services;

(ii) The applicant is not entitled to the OCF-18 for speech therapy services;

(iii) The applicant is partly entitled to the OCF-18 for occupational therapy services for the cost of the heating pad, plus interest in accordance with s.51 of the Schedule;

(iv) The applicant is not entitled to the remaining balance of the OCF-18 for occupational therapy services; and

(v) The respondent is not liable to pay an award under Regulation 664.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Applicant’s Submissions, Tab 5 – OCF-3 dated December 22, 2017; and Tab 6 – OCF-3 dated February 12, 2018.
3. 3Applicant’s Submissions, Tab 17 – Report of Dr. Collision dated November 9, 2018; and Tab 28 – Report of Dr. Collision , dated July 10, 2019.
4. 4Applicant’s Submissions, Tab 31 – OCF-18 dated October 18, 2019; and Tab 37 – OCF-18 dated March 25, 2021.
5. 5Cubello v. Guidolin, 2000 CarswellOnt 1524 (Ont. SCJ)
6. 6Violi v. General Accident Assurance Co. of Canada, 1999 ONFSCDRS 160, upheld on appeal 2000 ONFSCDRS 177
7. 7L.D. v. Aviva Insurance Company, 2020 CanLII 12700 (ON LAT)
8. 8Applicant’s Submissions, Tab 4 – CNRs of Dr. John dated January 9, 2019 and January 24, 2019.
9. 9Respondent’s Submissions, IE Physiatrist Report of Dr. Saad Naaman dated October 18, 2018.
10. 10Respondent’s Submissions, Tab 2 – Transcript of Cross-examination dated October 7, 2021 at para 43-44.
11. 11Respondent’s Submissions, Tab 2 – Transcript of Cross-examination dated October 7, 2021 at para 60-61.
12. 12Respondent’s Submissions, Tab 2 – Transcript of Cross-examination dated October 7, 2021 at para 164-165.
13. 13Respondent’s Submissions, Tab 6 – X-rays of neck, left shoulder and bilateral knees dated December 6, 2017.
14. 14Respondent’s Submissions, Tab 1 – Affidavit of Honor Ladia, sworn August 23, 2021 at para 17.
15. 15Applicant’s Submissions, at par. 9.
16. 16Applicant’s Submissions at par 6.
17. 17Respondent’s Submissions, Tab 11, CNRs of Dr. John, entry dated January 21, 2019.
18. 18Respondent’s Submissions, Tab 11, CNRs of Dr. John, entry dated January 30, 2019.
19. 19Respondent’s Submissions, Tab 11, CNRs of Dr. John, letter dated August 22, 2018.
20. 20Respondent’s Submissions, Tab 2 – Transcript of Cross-examination dated October 7, 2021 at para 60-61.
21. 21Applicant’s Submissions at par 11.
22. 22Applicant’s Reply Submissions at para 8.
23. 23Respondent’s Submissions, Tab 2 – Transcript of Cross-examination dated October 7, 2021 at para 164-165.
24. 24Applicant’s Submissions, Tab 24 – OCF-18 dated May 21, 2019.
25. 25Ibid.
26. 26Applicant’s Submissions, Tab 21 – Occupational Therapy Progress Report of Laura Carr, dated April 26, 2019
27. 27Applicant’s Submissions, Tab 2 - Affidavit of the Applicant sworn August 23, 2021 at para 29.
28. 28Applicant’s Submissions, Tab 35, Neuropsychology Addendum Report of Dr. Hjertaas dated December 21, 2020
29. 29Applicant’s Submissions, Tab 29, IE Report of Dr. Mustafa, Neurologist, dated September 29, 2021
30. 3017-002313 v. Aviva Insurance Canada, 2017 CarswellOnt 19226 (ON LAT)
31. 31Respondent’s Submissions, Tab 16 - IE Assessment of Dr. Naaman dated June 12, 2019
32. 32Respondent’s Submissions, Tab 13 – IE Assessment of Ms. Abraham dated October 10, 2018
33. 33Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200
34. 34Respondent’s Submissions, Tab 13 – IE Assessment of Ms. Abraham dated October 10, 2018
35. 35Respondent’s Submissions, Tab 11 - CNRs of Dr. John, entry dated January 21, 2019
36. 36Respondent’s Submissions, Tab 13 – IE Assessment of Ms. Abraham dated October 10, 2018, at p.9
37. 37Respondent’s Submissions, Tab 1 – Affidavit of Honor Ladia, at para 34
38. 38Respondent’s Submissions, Tab 2 – Transcript of Cross-examination dated October 7, 2021 at para 139-142.
39. 39Respondent’s Submissions, Tab 16 – Physiatry IE Report of Dr. Naaman dated June 12, 2019.
40. 40Applicant’s Submissions, Tab 22 – OCF-18 dated May 3, 2019
41. 41Respondent’s Submissions, Tab 17 – IE Neurology Report dated August 8, 2019
42. 42Respondent’s Submissions, Tab 2 – Transcript of Cross-examination dated October 7, 2021 at para par 106-109