Ahmadi (Litigation Guardian of) v. Jevco Insurance, 2022 CanLII 109496

Citation: Ahmadi (Litigation Guardian of) v. Jevco Insurance, 2022 ONLAT 20-001629/AABS Licence Appeal Tribunal File Number: 20-001629/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:

Samira Ahmadi (by her Litigation Guardian) Applicant

and

Jevco Insurance Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Kenway Yu, Counsel For the Respondent: Murleen McLean, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Samira Ahmadi, the applicant, was involved in an automobile accident on August 5, 2018 and sought benefits from Jevco Insurance, the respondent, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from September 5, 2018 to August 5, 2020?

ii. Is the applicant entitled to a medical benefit in the amount of $1,796.00 for an occupational therapy assessment recommended by Ashok Jain in a treatment plan (“OCF-18”) dated June 9, 2020?

iii. Is the applicant entitled to a medical benefit in the amount of $2,292.15 for physical therapy recommended by Dr. Glenn Watkins in an OCF-18 dated February 27, 2020?

iv. Is the applicant entitled to $1,995.55 for an attendant care assessment recommended by Alliance Diagnostics in an OCF-18 dated August 24, 2020?

v. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment recommended by Sports Medicine Rehab in an OCF-18 dated October 1, 2020?

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

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

RESULT

3I find that:

i. Fariba Omidvari shall be named as a litigation guardian for this applicant in this application before the Tribunal;

ii. The applicant is not entitled to a non-earner benefit;

iii. The applicant is not entitled to $1,796.00 for the cost of an occupational therapy assessment;

iv. The applicant is not entitled to $2,292.15 for physical therapy;

v. The applicant is not entitled to $2,200.00 for a chronic pain assessment;

vi. The applicant is not entitled to an award pursuant to s. 10 of Regulation 664;

vii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

4Resolved Issue: the treatment plan for an attendant care assessment in the amount of $1,995.55 has been approved by the respondent and is no longer at issue.

Litigation Guardian

5The applicant’s mother, Fariba Omidvari, shall be named as a litigation guardian for the applicant in this application before the Tribunal.

6The Tribunal does not have a Rule that would specifically allow for the appointment of a litigation guardian. Rule 3.1 of the Tribunal Common Rules of Practice & Procedure¹ provides that the Tribunal shall liberally interpret its rules to facilitate a “fair, open and accessible process and to allow for effective participation by all parties”. To me, having a litigation guardian to protect the applicant’s best interests, strikes at the very heart of procedural fairness.

7The process of naming a litigation guardian was laid out in Vice-Chair Hunter’s Order in I.B. v. Aviva Insurance Company of Canada² which describes the process of appointing a litigation guardian. This process specifies that a party seeking to become a litigation guardian shall file an affidavit or statutory declaration from a person willing to act on the applicant’s behalf that includes information regarding consent, their relationship to the applicant, the nature and extent of the disability causing mental incapacity, whether they are capable of making decisions on behalf of the applicant and have no potential conflicts of interest.

8Ms. Fariba Omidvari has provided a statutory declaration dated November 1, 2022, and I am satisfied she may act as a litigation guardian for the applicant in this application before the Tribunal. Ms. Fariba Omidvari is the applicant’s mother and has provided evidence related to the applicant’s diagnosis of autism. As a result of her autism, the applicant is mentally incapable of making decisions or instructing counsel.

9The style of cause of this application shall be varied to reflect Ms. Fariba Omidvari’s status as a litigation guardian for the applicant.

BACKGROUND

10The applicant was the rear seat-belted passenger of a vehicle driven by her sister which was struck from behind by another vehicle at a stop light. She did not lose consciousness, airbags did not inflate, and there was no secondary impact. She was transported via ambulance to Mackenzie Richmond Hill Hospital with reported neck and back pain, with headache. She was diagnosed with soft tissue injuries and released from hospital on the same date, with prescriptions for an anti-inflammatory and muscle relaxant.³

11The applicant was 34 years old at the time of the accident and has a detailed and significant health history predating the accident. Most significantly, the applicant was diagnosed with autism and attended a special needs school throughout her childhood. In August 2015, Dr. Josee Casati, Psychologist, confirmed that the applicant suffers from a severe intellectual disability and qualifies for Developmental Services Ontario (“DSO”) assistance.⁴ The applicant is able to read and write Farsi, which is her first language, but is dependent primarily on her mother for daily assistance. At the time of the accident, she was enrolled in Language Instruction for Newcomers to Canada (“LINC”) classes to learn English, as she had immigrated to Canada in 2015.

ANALYSIS

Non-Earner Benefit

12The test for entitlement to a non-earner benefit (“NEB”) is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

13Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

14“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”⁵

15In its submissions, the respondent referred to the decision in Heath v. Economical Mutual Insurance Company,⁶ wherein the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.⁷

16Heath also outlines several principles for the determination of entitlement to a NEB as follows:

i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

ii. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

iii. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

iv. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);

v. “Engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and,

vi. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.⁸

17The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.⁹

18Neither party made submissions on what the reasonable time period was to examine the applicant’s pre-accident activities as required by Heath. I find that examining the period from approximately one-year prior to the accident is reasonable in this matter to assess the applicant’s pre-accident activities.

19The applicant relies on five Disability Certificates (“OCF-3s”) filed between August 18, 2018 and February 27, 2020. Three of the OCF-3s dated August 24, 2018, September 18, 2018, and February 27, 2020 indicated that the applicant suffered a complete inability to carry on a normal life. Two of the OCF-3s filed dated August 18, 2018 and February 11, 2020 indicated she did not suffer a complete inability. Specifically, the OCF-3 dated February 11, 2020 filed by her Family Physician, Dr. Manijeh Bakhshi indicated the applicant did not suffer a complete inability, but a significant reduction in her daily activities.¹⁰

20The applicant relies on the five OCF-3s to establish that she meets the complete inability test. However, these documents themselves are not compelling evidence in support of her claim that she suffers a complete inability to carry on a normal life. There must be contemporaneous evidence in support of the complete inability test. Put simply, these documents are insufficient on their own to establish an NEB claim, absent compelling evidence regarding the applicant’s activities and life circumstances.

21The clinical notes and records provided by the applicant’s family physicians do not demonstrate the applicant has a complete inability to carry on a normal life. The applicant’s daily pre-accident and post-accident activities are not addressed in any fulsome capacity in these notes. In fact, the accident is only mentioned six times in notes spanning more than five years. Dr. Bakhshi’s notes detail visits between May 15, 2015 and July 10, 2020. The accident is only mentioned four times in this period. However, on February 11, 2020, Dr. Bakhshi did indicate the applicant was substantially unable to perform tasks of daily living and activities of daily life when a direct written inquiry was made applicant counsel.¹¹ Similarly, the clinical notes and records provided by Dr. Janette Speare, Family Physician, make only two references to the accident when the applicant complained of back pain on October 1, 2020 and November 2, 2020.¹²

22X-rays of the applicant’s lumbar spine were taken on November 18, 2019 and indicated there was no abnormality, nor any radiographic evidence of degenerative disc disease.¹³ However, an MRI taken on February 5, 2020 of the lumbar spine and sacroiliac joints depicted minor degenerative changes in her lower back with small diffuse disc bulges, and mild to moderate foraminal stenosis.¹⁴ Given the evidentiary record, I am not satisfied these minor degenerative changes are the result of the subject accident.

23Otherwise, the applicant relies on two expert reports and a consultation note to establish her entitlement to non-earner benefits. The first report completed by Varun Madan, Occupational Therapist from the assessment dated October 10, 2020, specifically addresses the issue of attendant care assistance. The report does indicate the applicant’s functional limitations prevent her from resuming pre-accident in-home activities. The report details range of motion restrictions in the applicant’s right shoulder, right knee, and severe restrictions in her cervical, thoracic, and lumbar spine.¹⁵ Prior to the accident, it was noted the applicant required some assistance with her personal care and housekeeping tasks. Post-accident, the occupational therapist noted she was currently dependent on others for the majority of her personal care and housekeeping tasks. It was also noted she used to enjoy dancing, swimming, visiting family and friends, and walking. Post-accident it was reported she was unable to dance.¹⁶ With regard to housekeeping tasks she demonstrated pain while reaching, sustained bending, kneeling/squatting, lifting/carrying, and reduced standing/walking tolerances.¹⁷ Occupational Therapist Madan concluded she required assistance with personal care including lower body dressing, shaving, haircare, cutting toenails, meal preparation, bathroom cleaning, changing bedding, hanging and sorting clothes.¹⁸

24The occupational therapy report is uncompelling for a number of reasons. First, Occupational Therapist Madan does not address whether the applicant meets the test for non-earner benefits. Clearly, this report was to assess the applicant’s need for attendant care assistance. Second, there is no adequate comparison made to the applicant’s pre-accident and post-accident activities. Third, it appears that almost no documents were reviewed in preparation for this assessment, and it cites an Intake Summary by Chiropractor Dr. Nabeel Syed, August 4, 2020 which was not provided in evidence for this hearing.

25Second, the applicant relies on the Psychological Assessment Report by Natalia Zhukova, Registered Psychotherapist, supervised by Anna Kozina, Psychological Associate, dated July 12, 2020. This report details the clinical interview, administration of psychological tests, and a feedback interview. The applicant reported constant pain in neck and shoulders, lower back, right hip, leg, knee, and daily headaches with dizziness.¹⁹ It was noted that pre-accident the applicant had not been responsible for housekeeping and post-accident had some difficulties with performing self-care tasks. Specifically, that she was slower with self-care tasks and required her mother’s assistance to simplify and accommodate physical tasks.²⁰ It was also noted there was a decrease in her social and joyful activities (including dance) due to loss of interest, pain, and physical restrictions. While the report does note that the applicant suffers genuine psychological distress as a result of the accident, there is no comment or reference to the complete inability test for non-earner benefits. Despite psychometric testing, both Ms. Zhukova and Ms. Kozina deferred any DSM-5 psychological diagnosis to a specialist in neurodevelopmental disorders and a psychiatrist, who were better equipped to provide an accurate diagnosis and appropriate recommendations to support the applicant.²¹ Although this report states that Ms. Zhukova conducted the clinical interview and assessment, I have no description of how Ms. Kozina was involved in this assessment, nor the level of supervision provided. Otherwise, as a Registered Psychologist, Ms. Zhukova lacked the authority or qualifications to even provide a psychological diagnosis. Given that the nature of the supervisory relationship is unclear, I place less weight upon this report as a result.

26Finally, the applicant relies on the Consultation Note by Dr. Mostafa Showraki dated March 12, 2020. In this two-page report, he notes the applicant developed anxiety and insomnia following the accident and there was no previous reported depression or loss of the ability to feel pleasure. However, this is contrary to the pre-accident clinical notes and records of Dr. Bakhshi who noted “anxiety and depression” in a visit dated April 10, 2018,²² and a previous prescription for the anti-depressant Fluoxetine.²³ Yet Dr. Showraki indicates the applicant’s medical history is “non-pertinent”.²⁴ Regardless, Dr. Showraki diagnosed the applicant with adjustment disorder secondary to the motor vehicle accident and prescribed an antidepressant to address her mood and sleep issues.²⁵ However, I question the reliability and comprehensiveness of this report, as it appears to contradict the previous medical records regarding the applicant’s pre-accident history of depression, and it is unclear if Dr. Showraki conducted any psychometric testing in support of his diagnosis. Furthermore, it makes no comparison of her pre-accident and post-accident functionality, nor any reference to the complete inability test for non-earner benefits.

27The respondent relies on a total of seven Insurer’s Examination (“IE”) Reports. Three of these reports speak directly to the eligibility test for non-earner benefits. The first, an Occupational Therapy Assessment Report provided by Alexandria Birioukova, is dated July 17, 2019. Ms. Birioukova noted that the applicant’s mother was her primary caregiver and reduced her caregiving activities following the recent drowning death of her son. It was noted the applicant was able to dress herself, shower, wash her face, brush her teeth, and trim her nails independently. Pre-accident she required assistance washing her hair and shaving. Post-accident, she was able to dress her lower body while seated and attended laser treatments instead of shaving.²⁶ The applicant was not responsible for home cleaning but would help with light tasks including sorting clothes or loading the dishwasher. Prior to the accident the applicant enjoyed going to school, the gym, music, and dancing. Post accident, the applicant enjoyed listening to music, but had cancelled her YMCA membership, and would attend LINC classes two to three times per week for two hours a day.²⁷ During range of motion testing the applicant demonstrated severe restriction in her neck, left-side pain in her shoulders, pain in her lower back, and functional range of motion in her hips, knees, and ankles. Ms. Birioukova conducted limited functional testing, but noted pain with low-level reaching, back pain while sitting and decreased tolerance for squatting, kneeling, prolonged sitting, standing/walking and reaching.²⁸ From an occupational therapy perspective, Ms. Birioukova could not make a clear comparison between her pre-accident and post-accident functional status. She noted the applicant was largely dependent on her mother for homemaking, leisure, and community outings, which were all reduced due to her mother’s inactivity following her brother’s death. As a result, she was unable to make a determination with regard to the applicant’s eligibility for non-earner benefits.²⁹

28Next, the respondent relies on the Musculoskeletal IE Report provided by Dr. Eric Silver, Family Physician, dated Jul 17, 2019. The applicant noted pain in the neck/upper back, headaches, and lower back pain.³⁰ The applicant was said to enjoy jogging and attending the gym pre-accident, and post-accident had not resumed these activities, but had returned to school on part-time basis. During strength testing, the applicant demonstrated bilaterally symmetrical reduced effort throughout the upper and lower extremities. The applicant reported non-specific and exaggerated pain responses with every strength test. Dr. Silver noted significant pain avoidant behaviours and non-organic signs.³¹ Following testing, Dr. Silver concluded that there was no objective evidence of ongoing accident-related physical injury or impairment attributable to the subject accident. From a musculoskeletal perspective the applicant had sustained uncomplicated soft-tissue injuries to her neck and back as a result of the accident.³² In his opinion, these injuries had resolved, and her ongoing pain was not attributable to the accident. Finally, he noted that the functional and physical limitations described were inconsistent with the objective findings of the physical assessment. There was no complete inability to carry on a normal life as a result of the accident that would require provision of non-earner benefits.³³

29The respondent also relies on the Psychological IE Report provided by Dr. Monique Costa El-Hage, Psychologist, dated July 17, 2019. She noted that the applicant suffered from a severe intellectual disability and the applicant’s mother was emotionally unwell following the death of her son, the applicant’s brother.³⁴ The applicant denied a history of anxiety or depression, which was contradicted by previous evidence provided including previous treatment for depression and a prescription for Fluoxetine.³⁵ The applicant reported constant pain in the neck, back, headaches, dizziness, ear pain, and poor sleep following the accident. The applicant was also noted to be afraid of cars and insisted that her mother sit with her in the back seat when travelling as a passenger. Prior to the accident, the applicant would assist with household chores, but did not complete any chores post-accident. Pre-accident the applicant was independent with dressing, bathing, toileting and was assisted with shaving. Post-accident she required assistance with washing her hair and dressing due to shoulder pain. Her mother was uncertain if the applicant was using back pain as an excuse to avoid completing household chores.³⁶ Her mother also reported the applicant suffered no psychological barriers that would prevent her from performing her pre-accident activities of normal living. She observed her daughter to be sad, but that it may not be fully attributable to the accident.³⁷ Dr. Costa El-Hage noted that her findings were limited due to the applicant’s lack of participation in the assessment interview and testing. However, based on the available information the applicant met the DSM-5 diagnostic criteria for specific (isolated) phobia in relation to automobile travel, related to the index accident.³⁸ Otherwise, the applicant’s psychological functioning did not appear to be a significant barrier to her engaging in pre-accident activities of normal living – household chores, selfcare, and social activities. Dr. Costa El-Hage concluded that from a purely psychological perspective the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.³⁹

30Relevant to the non-earner benefit claim, the respondent also relies on the Attendant Care Benefit Report by Ms. Reema Shafi, Occupational Therapist, dated August 3, 2021. This is the most recent assessment report tendered in evidence. Although the test for non-earner benefits is not addressed, the functional testing is the most comprehensive of the reports submitted and was completed in a five-hour period over two separate in-home visits. During the assessments, the applicant reported pain in her head, neck, bilateral shoulders, thoracic/lumbar spine, tingling hands, and sleep issues.⁴⁰ The applicant was observed to sit for 120 minutes without any obvious or acute physical distress.⁴¹ The applicant demonstrated the required range of motion and strength to perform dressing/undressing related tasks. The applicant was noted to be independent with most grooming tasks and was able to demonstrate toe clipping movement. The applicant was also noted to have the required range of motion and strength to prepare meals and serve herself as per pre-accident routines. Mobility-wise, she was observed walking, negotiating stairs, and performing floor transfers independently. She was also able to demonstrate bathroom cleaning and removing bed linens.⁴² Occupational Therapist Shafi noted that the applicant’s observed functional abilities were superior to her reported physical limitations and that her accident-related injuries appear largely soft-tissue in nature.⁴³ Ms. Shafi concluded that the applicant suffered no functional limitation or physical impairment that prevented her from returning to the full compliment of her pre-accident activities of daily living.⁴⁴ Although this report does not speak to the specific complete inability test, I place significant weight upon the observations made and the functional testing completed in this assessment.

31When I consider the totality of the evidence tendered in relation to the claim for non-earner benefits, I am simply not persuaded the applicant has established she suffered an impairment that continuously prevented her from engaging in substantially all of the activities she in which she was ordinarily engaged before the accident. Like Occupational Therapist Birioukova, I was unable to discern any comprehensive comparison between the applicant’s pre-accident and post-accident functional status. Clearly her cognitive impairment and reliance on her mother as a primary care provider had an impact on the ability to complete assessments. However, this pre-existing cognitive impairment was clearly not the sole determinate in assessing her functional abilities. The dependence on her mother was evident in relation to her participation in social and leisure activities which were greatly reduced post-accident due to her mother’s inactivity and the emotional toll taken by her brother’s death. Additionally, when pressed by Dr. Costa El-Hage, the applicant’s mother could not be certain if the applicant was using her back pain as an excuse to not complete household chores. However, both Dr. Silver and Occupational Therapist Shafi indicated that the applicant’s reported physical limitations were inconsistent with her functional abilities, and Dr. Silver noted she exhibited self-limiting and pain avoidant behaviours during physical assessment.

32Aside from three OCF-3s, applicant has not provided any expert opinion that indicates she meets the complete inability test for non-earner benefits. Dr. Bakhshi’s bare assertion regarding her complete inability on February 11, 2020 is unsupported by his clinical notes and records. The clinical notes and records provided also do not establish a baseline for comparison between her pre-accident and post-accident activities of normal living. The threshold for establishing entitlement to non-earner benefits is a high one. The applicant failed to identify what period of time she engaged in her pre-accident activities, the frequency, and time commitments in which she engaged in these activities. There simply was insufficient evidence to establish a comparison between these pre-accident and post-accident activities. Neither the report of Occupational Therapist Madan nor the Psychological Assessment provided by Ms. Zhukova and Ms. Kozina speak to the non-earner benefit test. This is in direct contrast to three separate IE reports provided by the respondent which remain largely uncontradicted and demonstrated the applicant did not meet the complete inability test. As a result, the applicant’s claim for a non-earner benefit is denied.

Occupational Therapy Assessment

33I am not persuaded the occupational therapy assessment in the amount of $1,796.00 is reasonable and necessary pursuant to the Schedule. This assessment was a duplication of another OCF-18 that was approved by the respondent.

34In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that this assessment is reasonable and necessary.

35Aside from the OCF-18 itself dated June 9, 2020 by Occupational Therapist Ashok Jain, the applicant has provided no compelling evidence that this assessment is reasonable and necessary. General submissions that it relates to back pain is unsupported by either an expert report or clinical notes and records that establish a consistent pattern of pain symptoms directly linked to the accident.

36The respondent relies on the Occupational Therapy Assessment Report provided by Alexandra Birioukova, Occupational Therapist, dated November 17, 2020. This assessment specifically addressed whether this OCF-18 was reasonable and necessary. In her opinion, Ms. Birioukova indicates that an occupational therapy assessment was reasonable and necessary. It would assist the applicant in determining strategies to facilitate her engaging in activities of daily living.⁴⁵ However, when Ms. Birioukova considered whether both the OCF-18’s for occupational therapy were required, she determined that the latter OCF-18 for $1,995.55 provided by Occupational Therapist Sandrine Desilets-Roy, and Chiropractor Nabeel Syed was more comprehensive and therefore was reasonable and necessary. She determined the former OCF-18 by Occupational Therapist Jain to be a duplicative service, and as a result, not reasonable and necessary pursuant to the Schedule.⁴⁶

37Given that Occupational Therapist Birioukova’s opinion regarding this OCF-18 is unchallenged, I place weight upon her conclusion that this assessment is duplicative of the occupational therapy assessment to be provided by Ms. Desilets-Roy and Dr. Syed. The latter assessment has been approved by the respondent. As a result, I am not persuaded this OCF-18 for an occupational therapy assessment is reasonable and necessary pursuant to the Schedule.

Physical Therapy

38I am not persuaded the physical therapy in the amount of $2,292.15 is reasonable and necessary pursuant to the Schedule.

39Again, aside from the OCF-18 provided by Dr. Glenn Watkins, Chiropractor, dated February 27, 2020, the applicant has not provided any expert opinion that this treatment plan is reasonable and necessary. Nor is it apparent from the clinical notes and records that the applicant is benefitting from this type of treatment for her accident-related impairments.

40The respondent relies on the Musculoskeletal Assessment Report provided by Dr. Eric Silver, Family Physician, dated November 16, 2020 specifically in relation to this disputed treatment. Dr. Silver noted that the applicant was fully independent in her personal care tasks and continued to exhibit non-organic signs, including provocation of pain in the neck, right knee, and lower back pain during the physical assessment conducted.⁴⁷ However, the applicant did not exhibit any pain-avoidant behaviours as during the previous assessment conducted by Dr. Silver in June 2019. In reviewing the MRI conducted February 5, 2020 of the applicant’s lower back, Dr. Silver was of the opinion that the minor degenerative changes depicted were not significantly affected by soft-tissue injuries sustained in the accident.⁴⁸ He reiterated that there was no objective evidence of ongoing accident-related musculoskeletal injury or impairment. Any ongoing pain was not directly attributable to physical injuries sustained in the accident.⁴⁹

41Given that Dr. Silver’s opinion is largely unchallenged and is the sole expert opinion on this OCF-18, his conclusions are persuasive. While the applicant disputes that is not possible to wholly conclude that the degenerative changes in her lower back are not a result of the accident, she has provided no compelling evidence linking these degenerative changes to any accident-related impairments. As a result, I am not persuaded this OCF-18 for physical therapy is reasonable and necessary pursuant to the Schedule.

Chronic Pain Assessment

42I am not satisfied that the chronic pain assessment in the amount of $2,200.00 is reasonable and necessary pursuant to the Schedule.

43Again, aside from the OCF-18 itself, completed by Dr. Z. (Marc) Marciniak, Physician, I have been provided no evidence that a chronic pain assessment is reasonable and necessary at this time. There has been no link established between the chronicity of the applicant’s pain symptoms and the accident. Similarly, the clinical notes and records indicate only sporadic reporting of accident-related pain over a five-year period between May 15, 2015 and November 2, 2020. Although not required, there has similarly been no other diagnosis of chronic pain by any health practitioner tendered into evidence.

44The respondent relies on an additional Musculoskeletal Assessment Report provided by Dr. Eric Silver, Family Physician, dated November 16, 2020, specifically in relation to this OCF-18. He again noted the applicant was hypersensitive to light touch and continued to exhibit non-organic signs including provocation of pain at various times during the physical examination. Again, he reiterated that the degenerative changes in her lower back were not significantly impacted by the soft-tissue injuries sustained in the accident. He stated that her injuries were soft-tissue in nature and there was no objective evidence of ongoing accident-related musculoskeletal injury.

45Again, Dr. Silver’s opinion is largely unchallenged, and as the sole expert opinion on this OCF-18, his conclusions are persuasive. While I do not doubt that the applicant suffers from some ongoing pain and has degenerative changes in her lower back, there has been no link established between these pain symptoms and any accident-related impairment. Thus, I cannot otherwise conclude that a chronic pain assessment is reasonable and necessary at this time.

Award and Interest

46Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s. 10 of Regulation 664. Thus, no award is payable.

47Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

48The application is dismissed, and I find that: