Zakaria v. Wawanesa Mutual Insurance Company, 2022 CanLII 8674

Citation: Zakaria v. Wawanesa Mutual Insurance Company, 2022 ONLAT 20-008398/AABS

Licence Appeal Tribunal File Number: 20-008398/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:

Latifa Zakaria

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

Decision and Order

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Mireille Dahab, Counsel

For the Respondent: Symone Marlowe, Counsel

HEARD: By way of Written Hearing

Reasons for Decision and Order

Background

1The applicant was involved in an automobile accident on April 7, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

2The parties participated in a Case Conference on December 2, 2020 but were unable to resolve the issues in dispute. A motion was later addressed via Vice Chair Ian Maedel's Motion Order, dated May 12, 2021, which extended the submission dates for the parties.

3The applicant has been removed form the Minor Injury Guideline (the 'MIG'²) by the respondent due to psychological injuries.

Preliminary Issues

Background of the procedural history

4When the parties attended their Case Conference on December 2, 2020, they received an Order³, which set a production exchange date of March 31, 2021. The written hearing date was scheduled for June 14, 2021.

5This hearing was adjourned⁴, on consent until July 19, 2021, with amendments made to the written submission dates, but the production deadline date was not amended.

6The Tribunal's Rules⁵ provide parties guidance on the admissibility of documents that do not comply with disclosure rules. Rule 9.4 states that if a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents, things or a list of witnesses, that party may not rely on the document or thing as evidence without consent of the Tribunal.

Admissibility of the applicant's Chronic Pain Assessment

7The respondent submitted that the applicant served it with a Section 25 Chronic Pain Assessment⁶ of Dr. Tajedin Getahun, Orthopaedic Surgeon on May 17, 2021. Since this date was nearly two-months late⁷, the respondent argued that this document should not be admissible. It also submitted that the applicant did not advise the respondent of her intention to obtain a Section 25 assessment.

8Furthermore, since this assessment was dated March 31, 2021, the respondent argued that the applicant had possession of said assessment long before it was provided to the respondent.

9Based on the issues described above, the respondent submitted that the applicant's representative's actions constitute "sharp practice".

10The applicant denied that the respondent experienced any prejudice experienced by the respondent by receiving Dr. Getahun's report in May of 2021, and that the respondent has failed to explain the alleged prejudice.

11The applicant does not deny that the respondent received the report in late, meaning in May of 2021, but rather, explained that since Dr. Getahun's assessment was transmitted by his office, directly to the adjuster, the applicant had no control over when the respondent would be served.

12In this case, the applicant failed to comply with the Tribunal's Case Conference Report & Order and did not ask the Tribunal for permission to rely on the Assessment.

13Therefore, after considering the submissions of the parties, I will not accept Dr. Getahun's Chronic Pain Assessment into evidence and find it is inadmissible. I base this ruling on the following. Firstly, the applicant failed to comply with the Tribunal's Rule 9.4.

14Secondly, both parties consented to the production date set at the Case Conference⁸ of December 2020, as reflected in the Case Conference Report and Order.

15Finally, the applicant's counsel was or ought to have been aware that an assessment from Dr. Getahun was going to be produced and relied on by the applicant. The applicant's legal counsel should have disclosed this to the Tribunal and respondent as soon as this report was commissioned. The applicant's legal counsel had ample opportunity to address this when it filed a motion to extend the written submission dates. Legal counsel chose not to raise that issue, thereby foregoing its ability to use the report in this hearing.

16In terms of the prejudice caused to the respondent by receiving the assessment after the production dates, the respondent has the right to do its own assessments prior to the hearing. Since the applicant served the documents on May 17, 2021, the respondent did not have the opportunity to decide if it wanted to commission its own Chronic Pain Assessment of the applicant.

17However, the fact that the applicant brought a motion⁹ forward and failed to mention or address her intention to rely on the Chronic Pain Assessment gives me concern. The applicant had ample opportunity to request permission from the Tribunal during this motion and failed to do so.

18For these reasons, I find the applicant's Chronic Pain Assessment to be inadmissible.

Admissibility of the applicant's Affidavit dated June 14, 2021

19Like Dr. Getahun's Chronic Pain Assessment, the respondent took issue with another piece of evidence that the applicant wishes to rely on, her affidavit sworn June 14, 2021.

20As discussed above, this affidavit was not submitted in accordance with the Case Conference Report & Order.

21Furthermore, the respondent raised the issue that the Case Conference Report & Order¹⁰ specified that no affidavits would be submitted into evidence. The respondent submitted that it was not aware that the applicant would be submitting an affidavit until it received the applicant's written submissions. As a result of this action, the respondent was unable to cross-examine the applicant. Based on this, the respondent requested that the Tribunal exclude the affidavit from the applicant's evidence.

22The applicant's counsel made similar submissions regarding this issue, as she submitted that there was no prejudice to the applicant, or, in the alternative, this could have been cured by the respondent by seeking an adjournment to cross-examine the applicant. Since the respondent did not, the applicant's counsel submitted that there is not prejudice, and the affidavit should be admissible.

23After considering the submissions and evidence of the parties, like the Chronic Pain Assessment of Dr. Getahun, I find that the applicant's affidavit is not admissible. Again, I rely on Rule 9.4 of the Tribunal's Rules, which clearly state that disclosure that does not comply with an Order may not be relied on without consent of the Tribunal. As discussed above, the applicant had ample opportunity to ask for permission to include the affidavit as part of her disclosure but did not do so.

24Furthermore, I rejected the applicant's argument that the respondent should have remedied the applicant's failure to respect the Tribunal's Order. In this case, it was the applicant who failed to comply with the Tribunal's Order, therefore, she is the party who should remedy the issue.

25Based on the above, the applicant's affidavit is not admissible to this hearing.

Admissibility of the respondent's submissions & costs

26The applicant also raised a preliminary issue in her Reply Submissions, stating that the respondent failed to respect the Tribunal's Motion Order dated May 12, 2021, which required the respondent to make it's written Submissions by July 5, 2021. The applicant submitted that the respondent failed to do by only serving its submissions on the applicant on July 7, 2021.

27The applicant submitted that on July 5, 2021, the respondent served the applicant with its written submissions, however, the submissions only contained the respondent's book of authorities and no written submissions. The applicant submitted she notified the respondent and received its submissions on July 6, 2021 after 8:00 pm, without explanation for the delay. The applicant stated that the respondent ought to have notified the applicant and provided the proper documents. Based on this, she submitted that the Respondent acted in bad faith and unreasonably, which entitles the applicant to costs. She provided no evidence to substantiate this beyond her submissions.

28The applicant submitted that by not respecting the Tribunal's Motion Order, the respondent unfairly prejudiced the applicant, and that the Tribunal should also disregard the respondent's submissions.

29The respondent did not have the opportunity to address this issue, as it was raised in the applicant's Reply submissions.

30Upon a review of the Tribunal's internal Case Management System, I found that the respondent's written submissions were received by the Tribunal on June 30, 2021 and they were accompanied by a Certificate of Service stating that Helena Grevenitis, assistant to the respondent's counsel, served the respondent's submissions on June 30, 2021 by email on the applicant. The certificate of service also included a copy of the email which transmitted the respondent's submissions, dated June 30, 2021.

31Therefore, since the applicant has failed to provide supporting evidence to demonstrate her position, I find that her argument failed, as she was unable to substantiate her argument.

Issues

32On consent, the parties agreed that the following issues are to be decided by the Tribunal:

i. Is the applicant entitled to the cost of an examination for $2,020.00 for an occupational therapy assessment recommended by Novo Medical Services Inc., submitted August 7, 2019 and denied August 15, 2019?

ii. Is the applicant entitled to a medical benefit for $1,794.67 for physiotherapy recommended by Health Max submitted January 6, 2020 and denied January 14, 2020?

iii. Is the applicant entitled to a medical benefit for $3,459.95 for assisted devices recommended by Novo Medical Services submitted February 5, 2020 and denied February 11, 2020?

iv. Is the applicant entitled to a medical benefit for $668.45 for physiotherapy recommended by Health Max submitted May 11, 2020 and denied May 26, 2020?

v. Is the applicant entitled to a medical benefit for $2,141.13 for physiotherapy recommended by Health Max submitted October 10, 2020 and denied October 23, 2020?

vi. Is the applicant entitled to a non earner benefit for $185 per week from May 7, 2019 to April 7, 2020 submitted May 7, 2019 and denied September 9, 2019?

vii. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Regulation 660?

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

Law

33Section 3(7)(a) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident. The onus is on the applicant to prove that he/she/they suffers from a complete inability to carry on a normal life. This standard is often referred to as being one of the most difficult thresholds to meet under the Schedule.

34Section 12(1)1 of the Schedule states that the insurer shall pay a non-earner benefit (an "NEB") to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of, and within 104 weeks after the accident and does not qualify for an income replacement benefit (an 'IRB").

35Section 15 of the Schedule states that Insurers shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as the result of an accident, including dental services and physiotherapy services.

36Section 25 of the Schedule states that insurers shall pay the reasonable costs of examinations/assessments on behalf of an insured person and that the maximum rate for said assessment shall be $2,000.00 plus tax.

37Section 25(1)(4) of the Schedule states that the insurer shall pay reasonable expenses incurred by/on behalf of an insured person for reasonable fees charged by an occupational therapist/registered nurse, for preparing an assessment of attendant care needs under section 42 of the Schedule, including any assessments/examination necessary for that purpose.

38Section 51(2) of the Schedule states that if the payment of a benefit under the Schedule is overdue, the Insurer shall pay interest on the overdue amount.

39When determining if a treatment is reasonable and necessary, the applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan is reasonable and necessary¹¹.

Evidence & Analysis

$2,020.00 for an occupational therapy assessment

40The applicant submitted that the occupational therapy assessment is reasonable and necessary. The respondent disagrees.

41After considering the submissions and evidence of the parties, and based on a balance of probabilities, I find that the applicant is not entitled to $2,020.00 for an occupational therapy assessment for the following reasons:

i. The applicant submitted that the Treatment Plan (the 'OCF-18')¹² of Julian Amchislavsky, Occupational Therapist of Novo Medical, to be supervised by Dr. Nazila Isgandarova, Psychotherapist/Social Worker, for an Occupational Therapy assessment is reasonable and necessary.

The applicant submitted that the treatment plan sets out the medical goals are related to her accident related impairments. She put forward that as a result of the accident, she suffered both physical and psychological injuries, namely pain in her neck, lower back, arms, right eye, as well as fear, anxiety, flashbacks, intrusive thoughts, hypervigilance, avoidance of being in a vehicle, loss of motivation and interest, and reduced appetite and energy¹³.

The goals of the OCF-18 are pain reduction, return to activities of normal living, and other activities, which were elaborated by Dr. Isgandarova, who opined that the OCF-18 will help the applicant emotionally reintegrate into/strengthen family, social and community networks¹⁴.

The OCF-18 proposed that the applicant receive treatment with Mr. Amchislavsky and Dr. Isgandarova, which include an assessment and test related to mental health and addictions, counselling regarding interpersonal relationships, documentation, brokerage services and documentation for insurance purposes.

ii. The applicant also argued that as a result of section 25(1)(4) of the Schedule, the respondent is required to pay for the reasonable fees charged by an occupational therapist for preparing an assessment of attendant care needs including any assessment/exam needed for this purpose.

iii. The respondent reminded the Tribunal that the applicant carries the onus of demonstrating that the assessment in dispute is reasonable and necessary. Based on this, it submitted that the applicant has not met her burden of demonstrating such.

Since the applicant had not led the Tribunal to relevant evidence to support her position, the respondent submitted that the applicant has failed to meet her evidentiary burden¹⁵.

iv. The applicant also reminded the Tribunal that the respondent's assessor, Dr. Paul Robinson, Psychologist, found that the applicant suffered from adjustment disorder with mixed anxiety and depressed mood, acute, as a result of the accident¹⁶.

v. The respondent also submitted that the evidence of Dr. Isgandarova was unreliable, as Dr. Isgandarova, who conducted her pre-screening of the applicant on July 29, 2019, was contradictory to the evidence of Dr. Robinson¹⁷, where the applicant stated that after the accident, she still visits friends and family, despite her fatigue post-accident.

vi. After considering the evidence and submissions of the parties, I was more persuaded by the respondent's evidence and position.

When weighing the evidence before me, I put less weight on the physical injuries found by Dr. Isgandarova, who as a psychotherapist/Social Worker, and not qualified to make findings regarding physical injuries.

In terms of the applicant's needs for psychological treatment for her injuries, being the evaluation of the applicant for social integration treatment and associated fees, I find that the applicant had not met her onus to demonstrate that the treatment plans were reasonable and necessary, as she was unable to support her position beyond her OCF-18.

I also disagree with the applicant's submission that section 25(1)(4) of the Schedule obliges the respondent to approve the OCF-18 in question, as this treatment is not related to an assessment of attendant care needs, nor has the applicant shown that this assessment is necessary for that purpose. Moreover, since an Assessment of Attendant Care Needs¹⁸ (a "Form 1") was already completed, this argument is invalid.

$1,794.67, $ 668.45, and $2,141.13 for physiotherapy

42Since the applicant has requested approval for three OCF-18s for physiotherapy, with related goals, modalities, I will address them all at once.

43The applicant submitted that the OCF-18s for physiotherapy are reasonable and necessary. The respondent disagrees.

44After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant is not entitled to physiotherapy for the following reasons:

i. The applicant submitted that the OCF-18s in question are reasonable and necessary to address her physical and psychological injuries.

In terms of her physical injuries, the applicant relied on the clinical notes and records of her Family Doctor, Dr. Ghanim Abdelsalam¹⁹, who noted that the applicant had been attending massage, but was still dealing with pain in her right shoulder, with right subscapular tenderness and recommended that the applicant attend massage therapy.

ii. The applicant also relied on the clinical notes and records from Healthmax Physiotherapy clinic²⁰. The relevant notes state that the applicant attended and complained of neck, back, and shoulder pain, dizziness and sleep issues.

iii. The applicant further relied on the Attendant Care Assessment report²¹ of Haciyeva Kamala, Registered Nurse. This report found that Ms. Kamala recommended the applicant participate in an exercise program, with a focus on strengthening and conditioning exercises. She also submitted that the applicant should continue with her present treatment, including active and passive treatment. Ms. Kamala does not comment on the type or frequency of this treatment.

iv. The respondent submitted that since all of the applicant's physical injuries are soft tissue in nature, they do not require passive therapy like physiotherapy.

The respondent relied on the report of Dr. Michael Devlin, Physiatrist²². This report found that the applicant suffered only soft tissue injuries, which normally resolve within 3-6 months.

v. The respondent reminded the Tribunal that the applicant's family doctor, Dr. Abdelsalam, did not refer the applicant for physiotherapy nor recommend a frequency of this treatment. Since the only medical professional recommending physiotherapy is the applicant's treatment provider, it submitted that the applicant has not met her onus to demonstrate that these treatment plans are reasonable and necessary.

vi. After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the physiotherapy treatment plans in dispute are not reasonable and necessary. As stated above, the applicant carries the burden of demonstrating that the requested treatment plans are reasonable and necessary. She has failed to do so, as the only medical evidence she provided, the clinical notes and records of the treatment provider, and clinical notes and records from her doctor. Both of these pieces of evidence demonstrate that the applicant has complained of pain. However, no one except the treatment provider recommends that the applicant attend physiotherapy, nor commented on the frequency of the physiotherapy treatment.

Ms. Kamala does recommend that the applicant continue with her passive treatment but does not comment on the modality of treatment or frequency.

Without some kind of medical professional's recommendation for these 3 treatment plans, which was provided, the applicant cannot proceed with this claim, as she has not met her evidentiary onus.

$3,459.95 for assisted devices

45The applicant submitted that the assistive devices she requested are reasonable and necessary. The respondent disagrees.

46After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant is entitled to $3,459.95 for the assistive devices for the following reasons:

i. The applicant submitted that the assistive devices in question are reasonable and necessary to address her physical and psychological injuries as a result of the accident.

The applicant relied on the evidence of Ms. Kamala's Attendant Care Assessment Report²³, which stated that the applicant reported pain her in neck, shoulders, and back as well as headaches, fatigue, dizziness and eye pain as a result of the accident.

Ms. Kamala made the following recommendations related to assistive devices:

1. Orthopedic mattress (queen size) - to promote increased comfort and support during sleep and improve sleep quality. Please note that the client's current sleeping surface does not provide optimal support for proper spinal alignment when sleeping. Enhancing sleep quality is vital to facilitate tissue recovery during the client's physical recovery process;

2. Memory foam pillow - to promote good neck support and improve sleep quality;

3. Swiffer wet jet mop - to eliminate need for a bucket and promote independence with mopping;

4. Electric heating pad - to increase blood circulation to the affected tissues by reducing stiffness, pain and spasm;

5. Anti-fatigue mat - to reduce compression of the spinal cord and improve posture as well as blood circulation during prolonged standing;

6. Shower chair - to help to increase safety by decreasing the chance of falling by providing a secure area in a slippery shower;

7. Lumbar back support - to relieve back pain and other associated symptoms;

8. Long handle body scrub brush - to improve ergonomics and functional tolerances as well as reducing musculoskeletal strain when performing activity;

9. Electronic toothbrush - to reduce shoulder pain; and

10. Obus -forme back support for car use.

All the devices in question to address the applicant's on-going pain related limitations. In terms of Ms. Kamala's assessments of the applicant's abilities related to these devices, the applicant was unable to demonstrate many of her restrictions due to pain.

Based on this evidence, the applicant submitted that she requires the devices to complete her activities of daily living ('ADL's) and to return to normal functioning.

ii. The respondent submitted that the applicant has again failed to provide enough evidence to show that the assistive devices are reasonable and necessary. It noted that she had not provided evidence related to the Swiffer, electric toothbrush, heating pad, anti-fatigue mat, and back brace.

iii. The respondent also noted that the applicant's family doctor, Dr. Abdelsalam, never specifically recommended any of the devices in dispute, nor provided a basis for such.

iv. It also reminded the Tribunal that the applicant reported being able to brush her teeth and clean independently as indicated in the section 44 In-Home Assessment Report²⁴ of Joan Saunders, Registered Occupational Therapist.

It also directed the Tribunal the In-Home Occupational Therapy Assessment²⁵ of Sarah Bromely, Occupational Therapist, which found that the applicant reported that she was independent using the toilet, bathtub and getting in and out of bed. She did report she sometimes experienced pain during sleep/bed transfers, and had pain in her shoulder, neck, arm and back when bathing, as well as lower back, hip and thigh pain with prolonged standing.

She was also observed independently able to: transfer herself from the toilet without support, step over/into her bathtub and transfer herself to and from her bed. Based on this, the respondent submitted that the applicant does not require a new mattress, box spring, pillow, bath bench and long handle brush, as she is independent with the tasks related to these tasks.

Ms. Bromley did not comment directly on the appropriateness of the assistive devices in question.

Ms. Saunders also noted in her report²⁶ that the applicant reported being independent with her dressing/undressing, bowel/bladder function, bathing, exercise and mobility. Ms. Saunders did not comment on the assistive devices being reasonable and necessary.

v. The respondent also submitted that the treatment plan is "grossly excessive" in relation to the applicant's injuries, and that some of her injuries/associated devices are not related to the accident. It did not provide corroborating evidence to support this.

vi. After considering the submissions and evidence of the parties, and based on a balance of probabilities, I find that the assistive devices in question are reasonable and necessary. I base this ruling on Ms. Kamala's report and findings, which recommended the devices in question.

Ms. Kamala took the time to address the applicant's pain related limitations, and as a result of said limitations, recommended all the devices stated above. She provided reasons to support this position.

The respondent's assessor did not do so. Instead, during their In-Home OT Assessments, they noted that the applicant was able to perform her ADLs with some pain. They failed to comment on if the applicant needed these devices and the reasons for such. Since the applicant has provided medical evidence that directly addresses her position, while the respondent has not, I was left more persuaded by the applicant's position.

Non-earner benefit from May 7, 2019 to April 7, 2020

47The test for non-earner benefit has been established as one of the most rigid tests under the Schedule, as noted in Heath v. Economical²⁷. This test is subjective and requires a comparison between the insured person's "normal life" before and after the accident over a reasonable period of time.

48There are six factors from Heath that the Court of Appeal considered when determining if an insured person has satisfied the test of section 3(7) of the Schedule²⁸.

49After considering the evidence of the parties, based on a balance of probabilities, I find that the applicant does not suffer a complete inability as defined by the Schedule, and therefore, does not qualify for the non-earner benefit for the following reasons.

50The applicant submitted that because of the accident, she suffered a complete inability to carry on a normal life as a result of her accident related physical and psychological injuries.

51She supported this position by relying on the Disability Certificate²⁹ (the 'OCF-3') of Dr. Mahsa Takallou, Chiropractor, which found that the applicant suffered from psychological and behavioral factors, chronic post-traumatic headache, strain and sprain of the cervical, thoracic, and lumber spire, sacroiliac, shoulder joint and rotator cuff capsule and anticipated that the applicant's injury would last 9-12 weeks, or until June 17, 2019 to July 8, 2019.

52Dr. Takallou opined that the applicant suffers a complete inability to carry out a normal life due to issues caring for her infant, house chores, and regular ADLs.

53It is not denied that the applicant was diagnosed with Adjustment Disorder with Mixed Anxiety Depressed mood as a result of the accident³⁰.

54The applicant also drew my attention to several self reports of her physical pain and psychological issues, which interfered with her ADLs. The applicant reported to Dr. Isgandarova³¹ that her husband has had to assist her with groceries, carrying their infant and cleaning their home.

55The applicant also drew my attention to the Form 1³² of Ms. Kamala, which stated that the applicant needs assistance with dressing/undressing, grooming, feeding, laundering, hygiene, coordination and bathing.

56She also drew my attention to Ms. Bromely's clinical notes and records³³, that as stated above, the applicant reported pain while bathing, sleeping/moving to bed, and preparing meals.

57The applicant also drew my attention to the psychological progress report³⁴ of Psychotherapist Albier Elbarbary, which noted that the applicant was suffering from accident-related pain and psychological symptoms, which caused her to have difficulty caring for her family, sleep properly and had feelings of sadness, lack of interest and volatile emotions. Mr. Elbarbary does not comment on the applicant's complete inability in relation to the non-earner benefit.

58Finally, the applicant relied on the report³⁵ of Dr. Nina Belvakova, Psychologist, who opined that the applicant suffered a 70% loss in her ability to perform her day-to-day tasks, including household chores due to physical pain and fatigue. Dr. Belvakova submitted that the applicant is unable to care for her child or her home as she did prior to the accident and requires assistance for these activities³⁶.

59The respondent submitted that the applicant had not provided sufficient information to determine that she suffered a complete inability in light of the 6-part, Heath test. It submitted that the applicant reported to several of its assessors that she was completing pre-accident ADLs, and therefore, does not suffer a complete inability.

60The respondent relied on the section 44 assessment³⁷ of Dr. Anna Czok, Physiatrist, where the applicant reported that she was independent in relation to her personal care tasks and was able to do her home-based chores and care for her child independently, with some assistance from her husband related to her chores. Dr. Czok's diagnostic impressions reveal that she opined the applicant suffered from resolved cervical and lumbar sprains and strains, with no objective musculoskeletal impairment³⁸. Dr. Czok submitted that the applicant did not suffer a complete inability to participate in most of her normal activities.

61The respondent relied on the findings³⁹ of its assessor, Dr. Robinson, where the applicant reported being able to do all household chores prior to the accident as well as engaging socially with friends and family. After the accident, the applicant submitted she had fatigue but still engaged socially. She also reported being able to participate in her household chores but received help from her husband.

62Dr. Robinson diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed mood as a result of the accident⁴⁰. However, based on his assessment of the applicant's functional state, he concluded that the applicant's psychological injuries did not result in a complete inability to participate in substantially all of her normal activities.

63The respondent also relied on the In-Home Occupational Therapy Assessment of Ms. Saunders⁴¹, which found the applicant was independent with her dressing, medication, bowel/bladder function, supervisory care of her child, bathing, mobility, exercise and laundry. Ms. Saunders noted that the applicant did experience pain when housekeeping, but that the applicant would stop when she experienced such, rest, and continue. Based on this, Ms. Saunders found that the applicant did not suffer a complete inability to carry on a normal life.

64The applicant took issue with Dr. Robinson's report⁴², as she noted that despite reporting that she had issues with her household chores, caring for her child, getting in/out of a car, walking, bending and cleaning, he found her to not suffer a complete inability. The applicant also reported only being able to do 20-30% of her usual, pre-accident chores. The applicant submitted that Dr. Robinson's findings were not consistent.

65The applicant also took issue with the findings of Dr. Robinson compared to those of Dr. Czok, who found the applicant was independent with her ADL's. She also took issue with Ms. Saunders' findings, as Ms. Saunders found that the applicant could perform her modified ADLs but had pain, required assistance to prepare meals, and was limited in her walking abilities⁴³.

66Based on the above, the applicant submitted that the respondent's reports were not reliable, as the assessors did not have a complete background to the applicant's pre and post accident function, and thereby did not come to correct conclusions regarding the applicant's abilities.

67After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not demonstrated that as a result of the accident, she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

68I relied on the OCF-3 of the applicant⁴⁴, which was the only OCF-3 submitted by the applicant. This OCF-3 found that the applicant suffered a complete inability that would last until June 17, 2019 to July 8, 2019. Since the applicant did not provide an OCF-3 beyond this point, no evidence was provided to support her claim for complete inability beyond this time frame.

69I considered Dr. Isgandarova's findings⁴⁵ regarding the applicant's ADLs but noted that Dr. Isgandarova did not comment on the applicant's complete inability. Nor did the Form 1⁴⁶ of Ms. Kamala, or the report of Mr. Elbarbary⁴⁷

70Based on this, I find that the applicant's physical injuries have not caused her a complete inability.

71In terms of the applicant's psychological injuries, though Dr. Belvakova did opine that the applicant suffered a 70% loss in her ability to perform her ADLs, I was less persuaded by this. I base this on the fact that Dr. Belvakova based his assessment on the applicant's levels of physical pain and fatigue, which as a psychiatrist, is not his area of practice. Instead, the applicant's pain and physical endurance would be better evaluated by a doctor who specializes in the area, such as a physiatrist or pain specialist.

72Since I was not provided with an opinion regarding the applicant's complete inability due to her psychological injuries, I put less weight on Dr. Belvakova's findings.

73Furthermore, the applicant did not provide what I would call a "complete picture" of her life, pre and post accident. The Tribunal has found that an applicant will not be deemed incapable of performing substantially all of their pre-accident activities, if found to be capable of performing at least 50% of their pre-accident activities⁴⁸.

74Since the applicant has not provided a breakdown or testimony regarding her ADLs, and the only evidence provided regarding this was the evidence of Dr. Belvakova and the OCF-3, which I put less weight on, I find that the applicant has not met her evidentiary burden.

Interest & Award

75The applicant submitted that she was entitled to interest on all benefits in dispute based on section 51 of the Schedule.

76The respondent disagreed. It submitted that since the applicant was not entitled to any of the benefits in dispute, no interest was owing.

77After considering the submissions of the parties, based on a balance of probabilities, I find that interest is payable on the overdue claims in dispute, namely the $3,459.95 for assisted devices.

78Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled together with interest on all amounts owing to the insured (including unpaid interest).

79It 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 664, the insurer's conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

80She also submitted she was entitled to an award, as the respondent denied all of the disputed treatment plans based on a designation of a MIG impairment, despite providing the respondent with medical evidence to support her impairments.

81The applicant argued that as a result of the respondent's actions, she incurred a large debt with her treating clinics. Based on 16-002779 v. BelairDirect Insurance⁴⁹, where the Tribunal found an award was necessary when a respondent's actions had a serious effect on the applicant, causing her to go into debt, she submitted she was entitled to such.

82The respondent also relied on 16-004312 v. Aviva⁵⁰, where the Tribunal found that an applicant must show that the conduct of the insurer was so outrageous, it should have been "patently obvious to the insurer"⁵¹ that the disputed benefit was payable in order to be successful in obtaining an award.

83However, I find no award is owing, as the applicant had not met her onus to demonstrate such. She did not persuade me that the respondent's denial of the disputed benefits was so egregious that it was patently obvious to the insurer that the treatment plans were reasonable and necessary. Instead, I was presented with a situation where the Tribunal was obliged to weigh competing medical evidence. In order to attract an award under Regulation 664, the insurer's conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate, which the applicant did not demonstrate.

Conclusion

84The applicant is not entitled to the occupational therapy assessment, three treatment plans for physiotherapy or the non-earner benefit.

85The applicant is entitled to the assistive devices treatment plan, and interest owing on it.

86The applicant is not entitled to any further interest or award beyond what is mentioned above.

Order

87The applicant is entitled to payment of

1. $ 3,459.95 for assisted devices.

2. Interest on the above-mentioned treatment plan.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3 (1.1) of the Insurance Act.
3. 3Amended Case Conference Report and Order dated December 15, 2020.
4. 4Via a motion from the applicant dated May 12, 2021.
5. 5Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) as amended ("Tribunal Rules").
6. 6Chronic Pain assessment report of Dr. Getahun dated March 31, 2021.
7. 7According to the Amended Case Conference Report and Order dated December 15, 2020.
8. 8According to the Amended Case Conference Report and Order dated December 15, 2020.
9. 9Motion from the applicant dated May 12, 2021.
10. 10Amended Case Conference Report and Order dated December 15, 2020.
11. 11Scarlet and Belair, 2015 ONSC 3635 (Div Ct.) at para 24
12. 12OCF-18 for Occupational Therapy for $2,020.00, submitted August 7, 2019
13. 13Ibid
14. 14Ibid
15. 1517-000502 v RSA Insurance Company, 2018 CanLII 81878 (ON LAT).
16. 16Insurer’s Examination of Dr. Robinson dated August 21, 2019.
17. 17Insurer’s Examination of Dr. Robinson dated August 21, 2019.
18. 18Form 1 dated January 5, 2020.
19. 19Clinical notes and records of Dr. Abdelsalam dated January 7, 2020.
20. 20From April 24, 2020 to October 24, 2020,
21. 21Dated January 7, 2020.
22. 22Dated March 25, 2021.
23. 23Dated January 7, 2020.
24. 24Dated August 27, 2019.
25. 25Dated February 15, 2020.
26. 26Dated August 27, 2019.
27. 27Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.
28. 28Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.
29. 29OCF-3 dated April 15, 2019.
30. 30Dr. Robinson’s Insurance Examination of August 28, 2019.
31. 31Pre-screening of July 2, 2019.
32. 32Dated January 5, 2020.
33. 33Dated February 15, 2020.
34. 34Dated August 23, 2020.
35. 35Dated October 28, 2019.
36. 36Ibid.
37. 37Insurer’s Examination of Dr. Czok dated August 21, 2019.
38. 38Ibid.
39. 39Insurer’s Examination of Dr. Robinson dated August 21, 2019.
40. 40Ibid.
41. 41Dated August 28, 2019.
42. 42Insurer’s Examination of Dr. Robinson dated August 21, 2019.
43. 43Insurer’s Examination of Ms. Saunders dated August 27, 2019.
44. 44OCF-3 dated April 15, 2019.
45. 45Pre-screening of July 2, 2019.
46. 46Dated January 5, 2020.
47. 47Dated August 23, 2020
48. 48As seen in Sookram v Zenith Insurance Company, 2021 CanLII 13201 (ON LAT).
49. 4916-002779 v BelairDirect Insurance, 2017 CanLII 70688 (ON LAT).
50. 5016-004312 v Aviva Insurance Canada, 2018 CanLII 39463 (ON LAT).
51. 51Ibid at para. 58 i.