Citation: Gamble v. Allstate Insurance Company of Canada, 2022 ONLAT 20-010512/AABS

Licence Appeal Tribunal File Number: 20-010512/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:

Tara Gamble

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Alexa D. Duggan, Counsel

For the Respondent:

Alexander Hartwig, Counsel

HEARD:

By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on June 29, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ ("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 following issues are in dispute:

i. Is the applicant entitled to an income replacement benefit ("IRB") of$218.98 per week from July 6, 2020, to August 6, 2020, denied on July 24, 2020?

ii. Is the applicant entitled to $1,291.00 for medication, submitted as an expense (OCF-6) on December 10, 2018, and denied on January 22, 2019?

iii. Is the applicant entitled to $6,385.64 for home modification/device, proposed by Rehability Occupational Therapy Inc., in a treatment plan submitted on August 28, 2018, and denied on September 12, 2018?

iv. Is the applicant entitled to $1,471.82 for chiropractic services, proposed by Rehability Occupational Therapy Inc., in a treatment plan submitted on April 18, 2019, and denied on May 3, 2019?

v. Is the applicant entitled to $1,634.301 for chiropractic services, proposed by Global Wellness Chiropractic & Laser Centre, in a treatment plan submitted on March 31, 2020, and denied on April 21, 2020? At the case conference the parties agreed that the amount in dispute may change pending review of amounts paid.

vi. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of the IRB, as indicated in the application?

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

LAW

3Section 3(7)(e) of the Schedule states that for the purpose of the Schedule, an expense related to goods or services is not incurred unless: the insured person has received the goods/services to which the expense relates, the insured person has paid, has promised to pay or is legally obligated to pay the expense and the person who provided the goods/services did so in the course of his/her/their normal employment/occupation/profession or sustained an economic loss as a result of providing these goods/services to the insured person.

4Section 3(8) of the Schedule states that if in a dispute as described by section 280 of the Insurance Act, R.S.O. 1999, c. I.9, the Tribunal finds that an expense was not incurred due to the insurer unreasonably withholding or delaying payments of a benefit for this expense, the Tribunal may, in order to determine entitlement to this benefit, deem the expense to have been incurred.

5Section 5(1)(i) of the Schedule provides the eligibility criteria for qualifying for an income replacement benefit, stating that an insurer shall pay an income replacement benefit to an insured person who sustains an impairment due to the accident, so long as the insured person was employed at the time of the accident, and within 104 weeks after said accident, suffers a substantial inability to perform his/her/their essential employment tasks.

6Section 6(2)(b) of the Schedule states that an insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which the insured is reasonably suited by education, training or experience.

7Section 15 of the Schedule states that an insurer shall pay medical benefits to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident.

8Section 33(1) of the Schedule that an applicant shall, within ten business after receiving a request form the insurer, provide the insurer with any information required to assist the insurer in determining the applicant's entitlement to a benefit.

9Section 33(6) of the Schedule states an insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with section 33(1) of the Schedule.

10Section 33(8) of the Schedule states if an applicant fails to comply with sections 33(1) or (2) of the Schedule, but subsequently complies with the sections, the insurer shall resume payment of the benefit if a benefit was being paid and shall pay all amounts that were withheld during the period of non-compliance, if the applicant provides a reasonable explanation for the delay in compliance.

11Section 38(2) of the Schedule states that an insurer is not liable to pay an expense in respect to a medical/rehabilitation/assessment/examination that was incurred before the insured person submits a treatment & assessment plan, subject to certain statutory exceptions.

12Section 38(2)(c)(i) of the Schedule states that an insurer is not liable to pay an incurred medical, rehabilitation benefit, or assessment or examination related expense unless the insurer gives the insured person a notice stating that it will pay the expense without a treatment and assessment plan, the expense is for an ambulance or other goods/services provided on an emergency basis but not more than 5 business days after the accident, or the expense is reasonable and necessary as a result of the impairment sustained by the injured person for drugs prescribed by a regulated health profession, or goods with a cost of $250.00 or less.

13Section 38(8) of the Schedule states that within 10 business days of an insurer receiving a treatment and assessment plan, it shall give the insured person notice that identifies the goods/services/assessment/examinations described in the treatment and assessment plan that it will pay for or refuses to pay for and provide the medical reasons and all other reasons why said goods/services/assessment/examinations or said costs are not reasonable and necessary.

14Section 38(11) of the Schedule states that if an insurer fails to give a notice in accordance with section 38(8) of the Schedule, related to a treatment and assessment plan, the insurer is prohibited from taking the position that the insured person has an impairment where the Minor Injury Guideline applies. The insurer shall pay for all goods/services/assessment/examinations described in the plan related to the period, starting on the 11th business day after the day the insurer received the plan, and ending on the day the insurer provides a notice that complies with section 38(8) of the Schedule.

15Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

16Section 57(2) of the Schedule states that an insured person who is entitled to a specified benefit shall obtain treatment and participate in such rehabilitation as is reasonable, available and necessary to permit the insured person to engage in employment or self-employment for a person entitled to an IRB or shorten the period during which the benefit is payable.

17Section 10 of R.R.O. 1990, Reg. 664: Automobile Insurance states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in additional to awarding the benefits and interest which the insured person is entitled to, may award a lump sum of up to fifty percent of the amount to which the person was entitled to at the time of the award, with interest, on all amounts owing to the insured.

18The applicant bears the onus of establishing, on a balance of probabilities, that she is entitled to the income replacement benefit in dispute².

Factual history

19The applicant was involved in an accident and was self-employed at the time.

20The applicant has pre-accident medical issues, which include radiating back pain, carpal tunnel syndrome, depression and anxiety. The applicant was also engaged in physiotherapy prior to and was exploring possible surgery. These medical issues were treated with medication.

21The parties agree that the applicant sustained injuries as a result of the accident, which include psychological injuries, and an exacerbation of her back pain. The applicant was also found to meet the complete inability test for an IRB.

22The respondent sent the applicant an Explanation of Benefits ('EOB') dated June 24, 2020, and requested the following documents under section 33 of the Schedule:

1. T4 and Notices of Assessment ('NOA') for 2017, 2018, and 2019;

2. A copy of the applicant's CPP Disability Application;

3. The updated clinical records of the applicant's family doctor, Dr. Chand, from December 18, 2018 to present;

4. An updated decoded OHIP summary;

5. An updated ODSP file from May 18, 2019 to the present date, and;

6. The clinical records of applicant's chiropractor, Dr. Wawrow.

23The EOB stated that these documents were requested on April 20, July 15, and July 31, 2020, and then in the EOB itself. The EOB also requested confirmation that the applicant was participating in psychological treatment pursuant to section 57 of the Schedule³. Based on the EOB, the applicant's IRB was suspended.

24The applicant's IRB was reinstated on August 4, 2020, after the applicant provided the respondent with Dr. Chand's updated clinical records from December 18, 2018, to present, her tax returns for 2017 and 2018, and her updated decoded OHIP summary. The parties both acknowledged the delays in productions due to the COVID-19 pandemic.

25The parties participated in a Case Conference⁴, where the Tribunal ordered that the applicant disclose the outstanding documents not yet provided pursuant to sections 33 and 57 of the Schedule.

26The applicant provided her updated ODSP file from May 18, 2019, to the present date and her tax returns for 2019 and confirmation of an application for Canada Pension Plan Disability benefits ('CPPD')⁵.

27Based on the evidence and submissions of the parties⁶, the applicant provided her updated clinical records from Dr. Chand and Dr. Wawrow, the applicant's 2019 tax returns and the applicant's updated ODSP file via Fileline⁷.

28However, the respondent failed to download the documents and the Fileline link expired⁸. The respondent acknowledged that items 3 to 6 were received but submitted items 1 and 2 in dispute, the applicant's T4 and NOAs for 2017, 2018, and 2019 and a copy of her CPPD application. The applicant did not provide her CPPD application, but her counsel agreed to provide a copy of her denial to the respondent.

29The parties are not in agreement if the applicant fulfilled her obligation to provide her T4s and NOAs for 2017 to 2019.

INCOME REPLACEMENT BENEFIT – Section 33 requests

Submissions and Evidence

30The respondent submitted that the applicant was not entitled to the IRB on the basis that the applicant has failed to comply with both the respondent's section 33 requests and the Tribunal's case conference order of Adjudicator Makhamra⁹.

31The respondent submitted that 4 of the 6 outstanding items have been provided by the applicant; it submitted that as the applicant has failed to provide her T4 statements ('T4's) and Notices of Assessment ('NOA's) from 2017 to 2019 as well as her a copy of the applicant's CPPD application as ordered at the case conference.

32The respondent acknowledged that the applicant had provided income tax returns for these periods but was not satisfied with this.

33Though the respondent acknowledged that section 33(8) of the Schedule allows insured people to provide "a reasonable explanation for the delay" regarding documents that are outstanding, the respondent submitted the applicant has not done so.

34It noted that the current COVID-19 pandemic may explain the delay in providing records from third parties, but not so for documents the applicant should have in her possession, such as her CPPD application.

35The applicant disagreed with the respondent's position and argued that she had provided all requested information from the section 33 requests made by the respondent.

36She argued that that records requests made were delayed by COVID-19, but all provided to the respondent as requested documents became available.

37In terms of the alleged issues with the applicant's T4s, the applicant submitted that she has not been employed since 2016, when she was self-employed but closed her business¹⁰ and therefore has no T4s to provide to the respondent. She continued by stating that the tax returns, tax summaries and NOAs were provided, and the totality of this information should satisfy the respondent's section 33 requests.

38The applicant reiterated in her reply submissions that all tax information had been provided within the deadline of the Tribunal's Order. The applicant relied on email correspondences between counsel¹¹, where the respondent's counsel acknowledged that the respondent did not download some of the applicant's medical evidence¹² in February of 2021, and the links to said evidence expired.

39In relation to the respondent's request for the applicant's CPPD application, the applicant submitted that she completed her own CPPD application and failed to keep a copy of it. As the respondent was advised the applicant's CPPD application was denied, and provided with a copy of said denial¹³, as well as the applicant's intent to appeal the denial¹⁴, and advised that the applicant has requested her CPPD file from Service Canada but has yet to receive it, the respondent should be aware that the applicant is unable to provide further information until she receives a copy of her CPPD file.

Analysis

40In terms of the respondent's requests for the applicant's T4s and NOAs from the applicant, after considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not complied with the Tribunals production order¹⁵ based on the respondent's section 33 requests.

41I agreed with the applicant's submissions regarding her lack of T4s and find that the lack of this document is not detrimental to the applicant's request for an IRB.

42However, I am not persuaded that she has provided a valid explanation for not providing her NOAs for 2017, 2018, and 2019. In terms of the respondent having copies of the applicant's tax returns versus her NOAs, though tax returns provide useful information for the respondent when assessing the applicant's entitlement to an IRB, unlike an NOA, a tax return does not provide the veracity of the submission's information. An NOA however, confirms that the Canada Revenue Agency has accepted or rejected the applicant's tax and revenue information as fact.

43Furthermore, I noted that the NOAs were requested by the respondent in an email between counsel¹⁶, and this was not addressed by the applicant's counsel.

44Without this information, the respondent may not be able to properly calculate the applicant's IRB quantum, in light of other sources of revenue or benefits.

45The applicant has provided what I find to be a reasonable explanation of why she is unable to provide a copy of her CPPD application and provided email evidence of communication between the parties' counsel supporting that her applicant for rejected and appealed.

46In terms of the respondent's request for the applicant's CPPD application, after considering the submissions of the parties, based on a balance of probabilities, I find that the applicant's submissions regarding this documentation to be consistent of a reasonable explanation for the delay in compliance in accordance with section 34 of the Schedule.

INCOME REPLACEMENT BENEFIT – Section 57 requirement

Submissions and Evidence

47The respondent also submitted that the applicant was not entitled to the IRB on the basis of section 57(2) of the Schedule, which requires a person entitled to this benefit to obtain treatment that is reasonable, available and necessary to allow the insured to engage in employment or self-employment.

48The respondent argued that as the applicant had been found to meet the complete inability test for a post-104 IRB on the basis of a psychological injury alone. The respondent argued that the applicant has failed to seek psychological treatment and did not comply with section 57(2) of the Schedule.

49Based on this argument the respondent provided the applicant with an EOB¹⁷, terminating the applicant's IRB based on non-compliance with section 57(2) of the Schedule.

50The respondent argued that the applicant's treatment for her physical symptoms is not relevant to section 57 arguments. This is because the applicant was found to meet the "complete inability" test based on her psychological symptoms alone by Dr. Maureen Rashwan, psychologist¹⁸.

51The respondent directed the Tribunal's attention to the decision of P.M. v Aviva General Insurance¹⁹, where adjudicator Makhamra determined that an applicant in receipt of an IRB on a psychological basis is required to attend treatment for such.

52The respondent submitted that in the subject matter, the applicant's counsel had advised that the applicant's psychological treatment was provided by Dr. Chand²⁰, and had prescribed the applicant medication. However, the applicant did not obtain psychological treatment when her IRB was suspended, which differs from P.M.

53The applicant disagreed with this, and argued that in P.M., the applicant had a diagnosis of Post-Traumatic Stress Disorder while in this case, the applicant suffers from chronic pain that impacts her psychological condition.

54The respondent stated that under section 57(7) of the Schedule, it has an obligation to pay the suspended benefit, meaning the IRB, once the applicant complies with treatment. The respondent took the position that since the applicant has not done so, the IRB cannot be reinstated.

55The applicant disagreed with the respondent's position regarding section 57(2) of the Schedule. The applicant submitted that she was engaging in psychological treatment with her family doctor, Dr. Chand and was complying with Dr. Chand's medical advice. Furthermore, she submitted that this treatment was reasonable, necessary and necessary at the height of the Covid-19 pandemic.

56The applicant also argued that it was not the place of an insurance adjuster to determine what treatment is appropriate for the applicant.

57The applicant also argued that she suffers from physical impairments as a result of the accident and that even if she were engaging in specialized psychological treatment, she would be unable to perform her employment's essential tasks, and therefore is entitled to the IRB.

58The applicant relied on the Independent Physiatry Assessment Addendum of Dr. Yuri Marchuk, physical medicine and rehabilitation specialist²¹, which found the applicant suffered a substantial inability to perform her pre-accident employment²². The applicant was then assessed by Dr. Tilka Mendis, neurologist²³.

59Dr. Marchuk completed another addendum²⁴, where he noted that Dr. Mendis' finding did not change his previous findings, meaning that the applicant suffered a substantial inability.

60The applicant also relied on Dr. Chand's medical report for her CPPD application²⁵, where the doctor found that the applicant was unable to work on the basis of mental and physical disabilities, including chronic pain, fatigue, fibromyalgia, depression and anxiety.

61Based on all of the submissions above, the applicant submitted that she ought to be paid the IRB for the period of July 6, 2020, to August 6, 2020, on the basis that her medical evidence related to both her physical and psychological injuries should be considered as a whole, and the respondent was required to pay the applicant the IRB.

Analysis

62In terms of the applicant's post-104 IRB, I find that the basis for this was and continues to be psychological only. Though the applicant was found to have a substantial inability in relation to her physical employment abilities²⁶, she has not provided persuasive evidence that these impairments satisfy the complete inability test.

63I did not accept that the applicant suffered a complete inability as a result of the accident on a physical basis because I agreed with the respondent's position; namely, that the only evidence that showed the applicant fulfilled the complete inability test was that of Dr. Rashwan, and that this was on a psychological basis only and not due to the physical injuries sustained by the applicant as a result of the accident.

64The evidence relied upon by the applicant does not support that the applicant suffered a complete inability on the basis of physical injuries; the evidence of Dr. Marchuk demonstrates that the applicant suffers a substantial inability as a result of her physical injuries and not a complete disability as a result of the accident.

65Furthermore, Dr. Chand's CPPD application does not specifically address the issue of complete inability, while Dr. Rashwan's evidence does.

66The applicant also relied on Dr. Chand's medical report for her CPPD application²⁷, where the doctor found that the applicant was unable to work on the basis of mental and physical disabilities, including chronic pain, fatigue, fibromyalgia, depression and anxiety.

67As the parties know, the complete inability test is far stricter than the substantial inability test, and requires an applicant to demonstrate, based on a balance of probabilities, that said applicant suffers a complete inability to engage in any employment or self-employment for which the applicant is reasonably suited by education, training or experience.

68After considering the submission and evidence of the parties, based on a balance of probabilities, I find that the applicant has not complied with section 57(2) of the Schedule.

69Though I accept the applicant's submissions regarding the fact that she is seeking psychological treatment from her family doctor, Dr. Chand, I note that the applicant was advised to attend some sort of psychological treatment as a result of her psychological impairments.

70Dr. Maureen Rashawn, psychologist, examined the applicant via section 44 assessment²⁸, strongly recommended that the applicant undertake psychological services to help her reach maximum level of psychological symptoms²⁹.

71Dr. Chand also recommended that the applicant "book with [Cathy] for therapy"³⁰. Dr. Chand also suggested that the applicant attend supportive psychotherapy³¹ and referred the applicant to a psychiatrist³².

72Furthermore, as Dr. Chand, a family doctor, is not qualified to provide psychiatric care, as also shown by the doctor's psychiatric referral for the applicant.

73Though I am empathetic to the applicant's struggles during the COVID-19 pandemic, she failed to address why she did not attend any type of psychological services despite it being suggested to her several times, nor why she was unable to participate in virtually services, which many psychological providers offered and continue to offer.

74Moreover, when addressing chronic pain, psychological treatment is often an important component of treatment, which was also not addressed by the applicant. Though the applicant argued³³ that psychological treatment would not fully resolve the chronic pain, she acknowledged that said treatment may assist her to copy with her chronic pain.

75As such, I find it difficult to accept that she complied with section 57(2) of the Schedule when there is no indication that she has engaged in any psychological treatment to address her psychological injuries, including her chronic pain.

76Therefore, based on the applicant's failure to comply with section 57(2) of the Schedule, she is not entitled to the IRB of $218.98 per week from July 6, 2020, to August 6, 2020.

medication

Submissions and Evidence

77The parties agreed that the applicant submitted an expense claim form ('OCF-6') to the respondent for medical cannabis³⁴. The parties also agree that the respondent denied this claim in an EOB³⁵, requesting that the applicant complete an OCF-18.

78The respondent submitted that the medical cannabis requested by the applicant is not reasonable and necessary is accordance with section 38(2)(c)(i) of the Schedule. The respondent took the position that as the applicant was using medical cannabis before the accident to address her pre-existing fibromyalgia, chronic pain and depression and failed to provide evidence regarding her pre-accident usage.

79The respondent relied on the report³⁶ of Dr. Linda Morel, physician. Dr. Morel suggested that the medical cannabis was a pre-accident medication used by the applicant.

80The respondent relied on the matter of Jackson v. Aviva Insurance Company of Canada³⁷, where the applicant suffered from pre-accident medical issues including fibromyalgia and depression. In Jackson, Adjudicator Chakravarti found that since the applicant failed to provide her pre-accident cannabis information, the applicant had not shown that the benefit for cannabis was reasonable and necessary.

81The respondent also relied on the clinical notes and records³⁸ of Dr. Nathania "Natasha" Liem, physician who opined that if the applicant could reduce her cannabis use, it could also help with her depressive symptoms and pain management.

82The applicant argued that the respondent provided the applicant with an improper denial, and therefore pursuant to section 38(11) of the Schedule, the respondent must pay for the disputed benefit.

83The applicant submitted that in the respondent's EOB which provided the denial of the benefit in dispute, it failed to request additional information from the applicant, such as her pre-accident cannabis use information. As the applicant was not provided with an opportunity to show this OCF-6 was reasonable and necessary, the applicant was not given a chance to do so.

84The respondent submitted that should the Tribunal find that the denial itself was improper or inadequate, this does not automatically entitle the applicant to the disputed benefit, as seen in Stranges v. Allstate Insurance Company of Canada³⁹, where the Court of Appeal found that an applicant must show entitlement despite a faulty notice.

85The applicant submitted that this case is not relevant, as it involved a claim for an IRB in 1996, under a framework which is far removed from the current Schedule and how the 1996 framework operatively differs from the Schedule.

Analysis

86After considering the submissions and evidence of the parties, I find that the respondent did not provide the applicant with a proper denial of the disputed medical cannabis, pursuant to section 38(8) of the Schedule.

87After reviewing the denial provided by the EOB, I observed that the notice did not provide any medical reasons but, as the applicant put forward, only asked that the applicant provide her request on an OCF-18.

88As this correspondence contains no reference to missing information, evidence requested or required of the applicant to demonstrate the reasonableness and necessity of the expense. The respondent must provide the applicant an opportunity to "fix" her denial, should that be possible. In this case, the respondent ought to have communicated to the applicant the medical basis of her denial and did not.

89In relation to the respondent's arguments regarding the notice and Stranges v. Allstate Insurance Company of Canada⁴⁰, I agreed with the applicant's position, namely that the operative provisions in relation to the two versions the legislation are significantly different with relation to notices and IRBs, and therefore, I will not follow the prior precedent

90Therefore section 38(11)2 of the Schedule is activated by the improper notice. As the respondent has failed to provide the required notice under the Schedule, it must pay for the disputed medical cannabis.

home modification/device

Submissions and Evidence

91The applicant argued her entitlement to the OCF-18⁴¹ of Laura Carr, occupational therapist for the purchase of a Tempur-Pedic Middleton firm mattress and an elongated, comfort height toilet to address the applicant's accident-related injuries.

92The OCF-18⁴² states that the applicant suffers from an impaired range of motion with left cervical rotation/lumbar flexion, pain in her neck, upper back, lower back and reduced abilities to sit, stand, walk, bend, lift and carry due to her post-accident symptomology.

93Ms. Carr submitted that the proposed mattress would help the applicant with her sleep quality and help her pain levels, energy, mood and symptomology, and the elongated toilet will assist improve the applicant's pain levels with her toilet transfers.

94The applicant relied on the section 25 in-home, occupational therapy assessment of Ms. Carr⁴³, which found that the applicant had occupational performance problems with her self-care, household tasks, work, and meaningful social/family activities due to the accident. Ms. Carr recommended the disputed devices to help the applicant improve her safety, independent and engage in her pre-accident activities of daily living ('ADL's).

95As the applicant's been diagnosed with myofascial strains of her neck and shoulder in conjunction with her pre-existing back issues⁴⁴, and has reported experiencing pain when sleeping and using the toilet, the devices are reasonable and necessary to address such.

96The respondent disagreed that the devices were reasonable and necessary. The respondent relied on its section 44 assessment⁴⁵ of Patricia Morland, occupational therapist, which found that neither the mattress nor the toilet devices requested by the applicant were reasonable and necessary.

97In regard to the mattress, Ms. Morland noted that at the time of her assessment, the applicant was sleeping in a queen-sized bed with 2 body pillows and a roll. The applicant had mentioned during her assessment that her and her husband were considering upgrading to a king-sized bed before Ms. Carr had recommended an electric bed instead.

98During Ms. Morland's assessment, she observed the applicant transfer and position herself independently in her current bed and opined that as she was able to do this herself, the electric mattress requested was not reasonable and necessary. Instead, Ms. Morland suggested that the applicant use a body pillow to address her pain. The applicant had rejected this suggestion as too cumbersome.

99The applicant took issue with the respondent's section 44 assessment⁴⁶ of Ms. Morland, as Ms. Morland failed to consider the applicant's on-going pain as a sign of the applicant's on-going injury and impairment. The applicant also took issue with the fact that Ms. Morland's report did not consider pain as a sign of the applicant's on-going injury despite the fact that Ms. Morland noted that the applicant has "been symptomatic for over three years now⁴⁷".

100The applicant disagreed with the Ms. Morland's suggestion that the applicant sleep with a body pillow. She argued that having someone like herself, disabled by chronic pain, to move a body pillow from side to side to help her sleep position was unreasonable and was not a simple task for her.

101The respondent also noted that when the applicant was asked about her sleep issues by Dr. Rashwan⁴⁸ during her section 44 psychological assessment, the applicant denied having issues staying or falling asleep or any accident-related nightmares.

102Though the respondent acknowledged that the applicant has reported a desire to decrease her pain and increase her comfort, it submitted that the consideration regarding the mattress being reasonable and necessary should be based on the applicant's functional limitations to her ability to sleep, which she has failed to demonstrate.

103The respondent also argued that the issue of the applicant experiencing pain in her sleep in not clearly accident related. The respondent directed the Tribunal's attention to A.S. v. Heartland Farm Mutual Inc⁴⁹, where Vice Chair Greg Flude found that an orthopaedic mattress was not reasonable and necessary as the treatment plan has been submitted over 4 years after the accident. The respondent argued that similarly, the subject applicant requested her mattress over 3 years post-accident.

104In terms of the applicant's request for the modified toilet, respondent submitted that the applicant did not have safety issues with her current toilet and was able to transfer to it easily during her assessment with Ms. Morland⁵⁰.

105Furthermore, as the applicant currently owns one comfort height toilet in the lower level of her home, the respondent submitted that installing a second toilet on the same floor the applicant slept on was not reasonable and necessary. The respondent wondered if a second toilet was truly necessary for the applicant, as she chose to have her first toilet installed on the main level of her home or merely a convenience.

106The respondent also submitted that the applicant had failed to prove that her sleep issues and pain were accident related, similar to the matter of M.M. v Aviva Insurance Company⁵¹, where the applicant's pain was found to be pre-existing and therefore the request for an orthopaedic mattress was not reasonable and necessary.

107The applicant disagreed with this interpretation of M.M. v Aviva Insurance Company and argued that this matter was also not applicable, as the applicant in M.M. had a pre-existing condition that existing for over a decade and no reliable evidence that said applicant's conditions were inflamed by the accident. Therefore, the applicant argued M.M. is not relevant.

108As for the respondent's submission of A.S. v. Heartland Farm Mutual Inc., the applicant argued that her case is distinguishable and therefore not relevant; specifically, she submitted that in A.S., the applicant had more body pain but failed to attend a chiropractor until nearly 2 years after the accident, and only then submitted the OCF-18 for a mattress.

109The applicant submitted that the mattress she has requested is not simply for comfort, as stated by the respondent, but specifically to address her chronic pain and lumbar disc disease, aggravated by the accident.

Analysis

110After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that both the toilet and mattress requested by the applicant are reasonable, but not necessary.

111In terms of the reasoning for the devices being reasonable, I agreed with the applicant's submissions that the goal of reducing her pain and increasing her safety were valid goals for the OCF-18s, specifically given the commentary from Ms. Morland regarding the applicant's complete inability in light of her limitations.

112I find that the electric mattress is reasonable but not necessary; I found myself persuaded by the respondent's submissions regarding the applicant's need to purchase an electric mattress. Though the applicant could experience less pain transferring to her bed with an electric mattress, she is currently able to do so without one, and Ms. Carr's description of the applicant's pain with regards to this did not rise to the level of said device being necessary for the applicant to recover from her accident-related impairments. Therefore, this device is not necessary.

113As for the applicant's request for the comfort heigh toilet, again, I find that the requested device is reasonable, but not necessary. My reasoning for this is similar to that of the orthopaedic mattress; though addressing the applicant's on-going pain is a reasonable goal for this OCF-18, neither the applicant nor Ms. Carr fully explained why the applicant required a second, comfort height toilet on the upper floor of her home.

114With regard to the comfort height toilet requested by the applicant, I find this to be reasonable but not necessary. I found myself persuaded by the respondent's submissions regarding the applicant's need to purchase a second, elongated toilet for the second bathroom of her home. Though the applicant may experience less pain transferring to and from the elongated toilet, she currently has access to such on the lower level of her home. Neither the applicant nor Ms. Carr fully unpack the reasoning as to why the applicant would be unable to go down the stairs of her home and use the elongated toilet there.

115Furthermore, Ms. Carr's description of the applicant's pain with regards to her toilet transfers did not rise to the level of said device being necessary for the applicant to recover from her accident-related impairments. Therefore, this device is not necessary.

occupational therapy services for $1,471.82

116In their submissions, the parties agreed that though the case conference stated that the disputed OCF-18 was for chiropractic services, the OCF-18 in dispute is actually for occupational therapy services, which I accepted.

Submissions and Evidence

117The applicant argued that the OCF-18 of Ms. Carr⁵², for in-home, occupational therapy sessions to help the applicant increase her safety and engagement with her activities, strategies, and education on returning to her pre-accident ADLs.

118This OCF-18 was denied⁵³ and under the reasons section stated: "not reasonable and necessary". The applicant submitted that this denial was not compliant with the procedural requirement of section 38(8) of the Schedule, and therefore, the expense is payable under section 38(11) of the Schedule.

119The applicant directed the Tribunal's attention to the reconsideration decision of M.F.Z. v Aviva Insurance Canada⁵⁴, where Executive Chair Lamoureux went through the procedural requirements of section 38(8) of the Schedule regarding defective notices. As the case in M.F.Z., the applicant submitted that the denial provided by the respondent did not provide "medical and all other reasons" why the OF-18 was not reasonable and necessary.

120The applicant submitted that since the respondent did not comply with section 38(8) of the Schedule, the respondent must pay for the denied OCF-18, as, according to caselaw, the respondent does not have another chance to provide reasons⁵⁵.

121The respondent disagreed that the denial for this treatment plan was insufficient. The respondent argued that the reasons provided in the denial were sufficient and complied with the Schedule, despite the applicant's subjective interpretation.

122The respondent noted that the EOB that provided the denial was sent shortly after the applicant's section 44 assessment with Ms. Morland, described above., which found that the applicant did not have any major limitations in terms of her physical abilities.

123The respondent also reminded the Tribunal that the applicant had been found to not require any treatment or rehabilitation services to achieve recovery from her accident-related impairments by Dr. Marchuk⁵⁶. The respondent also noted that Dr. Marchuk considered the "length of time since the index accident" and the "minimal improvement noted by the claimant" to show that treatment had yet to improve the applicant's symptoms and impairments.

124The respondent submitted that given the length of time since the accident and the arguments above, the respondent submitted the OCF-18 was not reasonable and necessary.

125Should the Tribunal find that the denial was not proper, the respondent relied on Stranges v. Allstate Insurance Company of Canada⁵⁷, where the Court of Appeal found that an applicant must show entitlement despite a faulty notice.

126The applicant, again, submitted that the circumstances of Stranges do not apply in the subject matter, as Stranges related to a specified benefit from the previous legislation and not the Schedule.

Analysis

127After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the respondent is liable to pay the OCF-18 as it failed to provide a compliant notice, subject to section 38(8) of the Schedule.

128I agree with the applicant's arguments in relation to M.F.Z. v Aviva Insurance Canada⁵⁸, and that the respondent has an obligation to provide applicants with a clear, unambiguous denial of a benefit.

129When reviewing and considering the EOB that denied the OCF-18, the reasons stated were lacking; though I appreciated the respondent's arguments that the applicant should have been aware of the basis of the denial, namely the findings of Ms. Morland and Dr. Marchuk. However, as the denial did not explain the basis of this finding, or provide the medical or other reasons, as required by section 38(8) of the Schedule, I find this notice to be deficient.

130I was also more persuaded by the applicant's arguments with regards to Stranges; as noted by the applicant, the circumstances for the subject matter are very different from Stranges.

131I agreed with the applicant's submissions regarding Stranges ; as it involved a claim far removed from the current Schedule and its framework, I found the case to not be relevant. This is because Stranges relied on legislation being the Statutory Accident Benefits Schedule - Accidents After December 31, 1993 and Before November 1, 1996, O. Reg. 776/93 (the " SABS "), that is distant from the current Schedule.

132Instead, I preferred the applicant's arguments, which were based on the Schedule applicable at the time of her accident and more contemporaneous to the facts at hand.

chiropractic services for $1,634.30

Submissions and Evidence

133The parties agree that the Auto Insurance Standard Invoice ('OCF-21') for this treatment plan was submitted by the clinic⁵⁹. The OCF-21 was denied on the basis of policy limit exhaustion⁶⁰. This denial linked the OCF-21 to an approved OCF-21 from 2018.

134The applicant submitted that the benefit is payable, and payment should be paid directly to her, as the respondent approved it and her policy limits have not been exhausted.

135The respondent agreed that an OCF-21 from 2018 for chiropractic services has been approved. The clinic then submitted a similar OCF-21, 2 years later. The respondent acknowledged that the denial on the basis of policy coverage limits was an error and submits this has been fixed.

136The respondent submitted that because an OCF-21 was submitted demonstrates that the applicant has already received the treatment. Since the clinic who prepared the OCF-21 provided the services to the applicant, the clinic⁶¹ should be receiving the funds in question. Therefore, the applicant is not entitled to the money for treatment she already received, and this is an issue between the clinic and the respondent which does not involve the applicant

137The applicant denied that she received the treatment plan, as it was denied. Therefore, she should be entitled to the payment for the benefit.

Analysis

138After considering the submissions and evidence of the parties, based on a balance of probabilities, as the parties agree that the respondent has approved payment for the benefit, the respondent shall make payment to the treatment provider directly.

139The OCF-21 in question was submitted by the treatment provider, which supports the respondent's position that the payment should be given directly to the service provider.

140The applicant did not claim to have incurred the OCF-21; and though she is entitled to this treatment, she is not entitled to direct payment from the respondent.

interest

141The applicant submitted that she was entitled to interest on all unpaid benefits in dispute based on section 51 of the Schedule.

142The respondent disagreed and submitted none of the benefits are outstanding.

143In the alternative, the respondent submitted that the interest is only owed from the date that the treatment or benefit was incurred.

144The applicant did not specifically address if the treatment plans were incurred.

145The applicant is therefore entitled to the medical cannabis and occupational therapist services; interest will be payable in accordance with section 51 of the Schedule should these benefits become overdue.

AWARD

146The applicant submitted that she was entitled to an award for the respondent's unreasonable withholding of her IRB. As I have not found that the applicant is entitled to this benefit, no award is owing.

CONCLUSION and order

147The applicant is not entitled to the disputed IRB.

148The applicant is entitled to the expense for medical cannabis.

149The applicant is not entitled to the assistive devices.

150The applicant is entitled to the occupational therapy services expense.

151The applicant is entitled to interest on the medical cannabis and occupational therapist services once incurred, should these benefits become overdue.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 216-004619 v State Farm Insurance, 2018 CanLII 13165 (ON LAT).
3. 3And requested on June 2, 2020, by the respondent.
4. 4On February 9, 2021.
5. 5On February 10, 2021.
6. 6Meaning the emails between counsels dated April 21, 2021.
7. 7Based on an email from Karen Delaney to Alexander Hartwig dated February 10, 2021.
8. 8Based on the email from Alexander Hartwig to Karen Delaney dated April 21, 2021
9. 9Dated February 19, 2021.
10. 10In December of 2016.
11. 11Dated April 21, 2021.
12. 12The clinical notes and records of Dr. Chand and Dr. Wawrow.
13. 13Based on emails between the applicant and the respondent's counsels dated June 2, 2020.
14. 14Ibid.
15. 15Dated February 19, 2021.
16. 16Dated April 21, 2021.
17. 17Dated June 2, 2020.
18. 18Based on the respondent's Psychological Assessment report of Dr. Rashwash dated October 25, 2019.
19. 19P.M. v Aviva General Insurance, 2020 CanLII 63584 (ON LAT).
20. 20Based on an email from the applicant's counsel to the respondent's counsel regarding psychological treatment, dated April 21, 2021.
21. 21Dated September 13, 2018.
22. 22Based on the Independent Physiatry Assessment Addendum of Dr. Yuri Marchuk dated September 13, 2018.
23. 23Independent Neurological Report of Dr. Mendis, dated March 11, 2019.
24. 24On April 16, 2019.
25. 25Dated April 13, 2020.
26. 26As noted by Dr. Chand and Dr. Marchuk.
27. 27Dated April 13, 2020.
28. 28Based on the respondent's Psychological Assessment report of Dr. Rashwash dated October 25, 2019.
29. 29Ibid.
30. 30Based on the clinical notes and records of Dr. Chand dated October 20, 2015.
31. 31Based on the clinical notes and records of Dr. Chand dated January 17, 2017.
32. 32Based on the clinical notes and records of Dr. Chand dated February 6, 2018.
33. 33Based on the respondent's Psychological Assessment report of Dr. Rashwash dated October 25, 2019.
34. 34On December 10, 2018.
35. 35Dated January 22, 2019.
36. 36Dated October 26, 2016.
37. 37Jackson v. Aviva Insurance Company of Canada, 2021 CanLII 18939 (ON LAT).
38. 38Dated September 16, 2016.
39. 39Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457 at paragraph 9.
40. 40Ibid.
41. 41Dated May 24, 2018.
42. 42Treatment and Assessment Plan (OCF-18) of Ms. Carr, dated August 29, 2018.
43. 43In-Home Occupational Therapy Assessment Report of Ms. Carr dated May 24, 2018.
44. 44Namely degenerative disc disease and disc protrusion.
45. 45Independent Occupational Therapy In-Home Examination of Ms. Morland dated November 6, 2018.
46. 46Ibid.
47. 47Ibid.
48. 48Based on the respondent's Psychological Assessment report of Dr. Rashwash dated October 25, 2019.
49. 49A.S. v. Heartland Farm Mutual Inc., 2020 CanLII 27364 (ON LAT) at para. 12.
50. 50Independent Occupational Therapy In-Home Examination of Ms. Morland dated November 6, 2018.
51. 51M.M. v Aviva Insurance Company, 2020 CanLII 37673 (ON LAT
52. 52Dated April 18, 2019.
53. 53Via an Explanation of Benefits correspondence from the respondent dated May 6, 2019.
54. 54M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) at para. 10, and 22-25.
55. 55As seen in M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) at para. 62 and 63.
56. 56In Dr. Marchuk's Independent Physiatry Examination dated April 20, 2018.
57. 57Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457 at paragraph 9.
58. 58M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) at para. 10, and 22-25.
59. 59Known as Global Wellness Chiropractic & Laser Centre on March 21, 2020.
60. 60Based on an EOB dated January 22, 2019.
61. 61Known as Global Wellness Chiropractic & Laser Centre.