Citation: Awadalla v. Intact Insurance Company, 2022 ONLAT 19-008697/AABS and 19-010909/AABS

Licence Appeal Tribunal File Numbers: 19-008697/AABS and 19-010909/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:

Hanna Awadalla

Applicant

and

Intact Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Mireille Dahab, Counsel

Melika Dabirian, Counsel

For the Respondent:

Darrell March, Counsel

HEARD:

By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

¹ The applicant was involved in an automobile accident on August 4, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

² The applicant filed two separate applications related to this accident with the Tribunal, bearing file numbers 19-008697/AABS and 19-010909/AABS. As the parties addressed both matters in their submissions, I find that they consented to have these applications heard together; further, when considering that both matters involve the same or similar questions of fact, law, or policy, pursuant to s. 9.1(1) of the Statutory Powers Procedure Act, I therefore combine and hear the proceedings at the same time and render this Decision addressing both applications.

³ The application was also subject to several motions.

⁴ The Tribunal decided via Motion the issue of catastrophic impairment (“CAT impairment”) would not be added to the issues in dispute².

PRELIMINARY ISSUE

⁵ The respondent raised a preliminary issue in its submissions, arguing that the applicant should not be allowed to rely on catastrophic assessment reports (“CAT assessments”), and evidence that it submits are not relevant to the matter before the Tribunal.

⁶ The respondent submitted that the CAT assessments and evidence were produced to deal with the issue of the applicant’s CAT impairment as a result of the accident. The CAT impairment test differs from the test to be applied for the medical and rehabilitation benefits at issue in this hearing, namely the reasonable and necessary test. Further, since the applicant has already submitted an application to address the issue of CAT determination, namely file number 20-006345/AABS, the CAT assessments are more appropriately for that hearing than this one.

⁷ The respondent also argued that consideration of the CAT assessments and evidence would prejudice it, as the respondent was not provided with the ability to respond to this evidence.

⁸ The respondent also relied on 17-001265 v Waterloo Insurance³ to exclude the reports on the basis that the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure – October 2, 2017, as amended (”Rules”); specifically Rule 3.1(a), requires the Rules to be liberally interpreted and applied and may be waived, varied or applied on the Tribunal’s own initiative, or at the request of a party to facilitate a fair, open and accessible process and to allow effective participation by all parties.

⁹ The respondent also acknowledged that the Tribunal ordered⁴ that the applicant was permitted to rely on the pending catastrophic assessment reports as Adjudicator Makhamra found that said evidence was relevant to the issues in dispute. Adjudicator Makhamra also considered the prejudice to the respondent in her Order and allowed the respondent’s responding report to be produced in advance of the written hearing and allowed it to request a short adjournment for such.

¹⁰ The applicant did not address this issue in his submissions.

¹¹ After considering the submissions of the parties, I will not exclude the applicant’s CAT assessment and evidence. I relied on the principle of res judicata, namely that the Tribunal has already made a decision with respect to this issue, as seen in Adjudicator Makhamra’s Motion Order⁵.

¹² With respect to 17-001265 v Waterloo Insurance, I found this matter to be unpersuasive, as that matter did not involve the Tribunal having already made a decision regarding the allegedly prejudicial evidence, while in the subject matter, the Tribunal has already made an Order.

ISSUES

¹³ The following issues are before the Tribunal:

i. Is the applicant entitled to receive a medical benefit for a treatment plan (“OCF-18”) dated March 7, 2018, in the amount of $14,158.89 for a mattress, adjustable base, assistive devices and forms completion?

ii. Is the applicant entitled to receive a medical benefit for an OCF-18 dated June 28, 2018, in the amount of $4,982.50 for an orthopaedic mattress and forms completion?

iii. Is the applicant entitled to receive a medical benefit for an OCF-18 dated August 8, 2018 in the amount of $1,050.89, which was partially denied in the amount of $87.19 for chiropractic services fees and for forms completion?

iv. Is the applicant entitled to receive a medical benefit for an OCF-18 dated August 6, 2019, in the amount of $4,395.49 for manipulation, mobilization therapy and forms completion?

v. Is the applicant entitled to receive a medical benefit for an OCF-18 dated June 19, 2019, in the amount of $2,454.71, which was partially denied amount in the amount of $699.10 for a psychological assessment and forms completion?

vi. Is the applicant entitled to receive a medical benefit for an OCF-18 dated June 27, 2019, in the amount of $2,749.80 for aqua-therapy, exercise equipment, planning and forms completion?

vii. Is the applicant entitled to receive a medical benefit for an. OCF-18 dated July 2, 2019, in the amount of $3,769.66 for manipulation, mobilization, therapy and forms completion?

viii. Is the applicant entitled to receive a medical benefit for an OCF-18 dated June 19, 2019, in the amount of $2,200 for an in-home occupational therapy assessment and forms completion?

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

x. Is the Applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?

LAW

¹⁴ Sections 14, 15 and 16 of the Schedule state that an insurer shall pay medical and/or rehabilitation 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.

¹⁵ Section 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.

¹⁶ Section 25(1)(4) of the Schedule states that the insurer shall pay reasonable fees charged by an occupational therapist or registered nurse for prepare an assessment of attendant care needs under section 42, including any assessments/examinations needed for said purpose.

¹⁷ Section 38(14)(a) of the Schedule states that within ten business days after an insurer receives a section 44 report, the insurer shall provide the insured with notice indicating the goods and services of the OCF-18 that the insurer agrees to pay for, or, for the goods and services the insurer refuses to pay for and any other reasons for the insurer’s decision.

¹⁸ Section 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.

¹⁹ In Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”), the Divisional Court found that an insurer is not obliged to pay for a medical and rehabilitation benefit simply because the insured sustained an impairment; benefits must also be reasonable and necessary.

²⁰ Section 10 of R.R.O. 1990, Regulation 664, Automobile Insurance states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to the insured person, may award a lump sum of up to fifty percent of the amount to which the insured person was entitled to at the time of the award, with interest, on all amounts owing to the insured person, with interest at two per cent per month, compounded monthly from the time the benefits first became payable.

PARTIES’ POSITIONS

²¹ The parties agreed that the applicant has a significant pre-accident medical history and has a history of cervical spine surgery⁶, sleep apnea and sleep interruptions⁷.

²² The applicant submitted that as a result as a result of his accident, his pre-existing conditions were significantly aggravated.

²³ The respondent submitted that at least some of the applicant’s pain complaints were not as a result of his accident, and therefore, the disputed OCF-18s are not reasonable and necessary.

DISPUTED BENEFITS

$14,158.89 for a mattress, adjustable base, assistive devices and forms completion

²⁴ The applicant submitted that his OCF-18s for a mattress, adjustable base, assistive devices and forms completion are reasonable and necessary.

²⁵ The applicant submitted that the OCF-18⁸ in the amount of $14,158.89 has a goal of improving the applicant’s sleep, energy levels and return to his pre-accident work activities. This OCF-18 also included a Transcutaneous Electrical Nerve Stimulation (“TENS”) unit to relieve the applicant’s pain, a long-handled reacher and sock aid to assist the applicant with his activities of daily living (“ADL”s). The applicant submitted that as a result of his accident, he suffers from left shoulder joint degeneration as seen in the magnetic resonance imaging ⁹ (“MRI”) of Dr. Peter Liu, cardiologist. The applicant submitted that this injury necessitates him using a reacher to avoid pain.

²⁶ The applicant argued that his sleep apnea and sleep interruptions were exacerbated by his accident and relied on the report¹⁰ of Dr. Lara Davidson, psychologist. The applicant reported issues with his sleep getting worse “soon after his accident”. The applicant reported taking hours to fall asleep, intrusive thoughts, and a deterioration in his mood as a result of his poor sleep. The applicant also reported taking sleep medication, allowing the applicant to sleep five to six hours but sometimes less.

²⁷ With respect to the price of the OCF-18, the applicant submitted that the cost was reasonable, as the applicant currently owns a king-sized bed and a replacement, Tempur-Pedic mattress was priced at $5,570.00¹¹, with the adjustable based for said mattress being priced at approximately $3,250.00^12_2, and noted these prices do not include installation and delivery, as recommended in the disputed OCF-18.

²⁸ In the alternative, the applicant concluded that if the cost of the OCF-18 is found not to be reasonable, the applicant argued that the cost of an alternative Tempur-Pedic mattress should be found reasonable and necessary.

²⁹ The respondent submitted that the OCF-18 was not reasonable and necessary. The respondent relied on its Insurance Examination¹³ (“IE”) conducted by Dr. Andro Deni Kanalec, physician, where the doctor found that the applicant had extensive pre-accident injuries and pain before his accident. Dr. Kanalec opined that the applicant had sustained a whiplash associated disorder (“WAD”) with a grade of I to II, a left shoulder strain with a partial tear superimposed on the pre-existing degenerative changes, right ankle strain and a lumbar strain superimposed on pre-existing lumbar decompressive surgery for sciatic. The respondent submitted that the applicant suffered minor injuries.

³⁰ Dr. Kanalec opined that the applicant’s recovery would be delayed for up to 8 to 12 weeks due to the applicant’s pre-existing conditions. The respondent also noted that the doctor noted: “a hint of symptom magnification behavior evident during the physical examination”.

³¹ The respondent also relied on its IE Paper Review¹⁴, authored by Dr. Kanalec, based on new medical information received from the applicant. This IE found that the applicant sustained a cervical strain, WAD grade I-II with pre-existing cervical decompressive surgery and radicular features, left shoulder and right ankle strain and lumbar strain superimposed on pre-existing prior lumbar decompressive surgery for sciatica and confirmed that the applicant suffered uncomplicated, soft-tissue minor injuries as a result of his accident. Dr. Kanalec opined that the disputed OCF-18 was not reasonable or necessary as a result.

³² The respondent also submitted that this issue in dispute was “moot” as the applicant later requested an orthopaedic mattress, being the following issue in dispute. The applicant disagreed with this and submitted the issue was still live and required an order from the Tribunal.

³³ After considering the submissions of the parties, based on a balance of probabilities I find that the OCF-18 is not reasonable and necessary.

³⁴ With respect to the issues of the TENS device, the reacher, sock aid or the adjustable base were not discussed by the parties beyond describing their purpose within the OCF-18 and the reasons they were recommended. The applicant has not provided medical evidence to support these components of the OCF-18, and therefore, I do not find them to be reasonable and necessary.

³⁵ With respect to the Tempur-Pedic mattress, the applicant has not provided persuasive medical evidence that speak to the reasonableness and necessity of the mattress, and therefore, the applicant has not met his evidentiary onus. I did not find Dr. Lara’s evidence persuasive, and the doctor is a psychologist, and making recommendations with respect to physical injuries goes beyond the doctor’s scope of practice.

³⁶ However, the respondent was able to provide medical evidence, via its IEs by Dr. Kanalec, that do speak directly to the applicant’s injuries in relation to the disputed OCF-18. As the applicant has not provided evidence or arguments to address this evidence, I find that the OCF-18 is not reasonable and necessary.

³⁷ Moreover, the applicant did not provide evidence as to why a Tempur-Pedic brand mattress was specifically required. Therefore, I also rejected his argument with respect to an alternative mattress.

$4,982.50 for an orthopaedic mattress and forms completion

³⁸ The applicant submitted that the OCF-18¹⁵ in the amount of $4,982.50 has the same treatment goals as those in the amount of $14,158.89, as discussed above.

³⁹ The applicant relied on the Orthopaedic Assessment – Post-104 Report¹⁶ of Dr. Getahun, which found that this OCF-18 was reasonable and necessary to address the applicant’s neck and back pain and sleep issues.

⁴⁰ The respondent disagreed that the disputed OCF-18 was reasonable and necessary to address the applicant’s neck and back pain, particularly his issues with sleep.

⁴¹ The respondent relied on the above-mentioned IE of Dr. Kanalec, who also opined that the disputed OCF-18 was not reasonable and necessary as a result of the accident. Instead, Dr. Kanalec opined that this OCF-18 would address the applicant’s pre-existing injuries, which the doctor opined were at “base-line”.

⁴² The respondent also relied on the Paper Review of Dr. Kanalec, who determined that the applicant suffered a left shoulder partial tear with evidence of degenerative changes, but still had good function.

⁴³ After considering the submissions of the parties, based on a balance of probabilities I find that the applicant is not entitled to the OCF-18 for an orthopaedic mattress.

⁴⁴ When considering the evidence submitted by the parties, I was left with competing evidence from Dr. Getahun and Dr. Kanalec. I preferred the evidence of Dr. Kanalec, as it provided a clear and complete picture of the applicant’s pre and post-accident related injuries with respect to the applicant. Dr. Getahun’s evidence, on the other hand did not specifically address the applicant’s pre-existing conditions or specifically address if the applicant’s injuries are as a result of his accident or pre-existing conditions.

⁴⁵ I find that the applicant is not entitled to the OCF-18 in dispute.

$87.19 for chiropractic services fees and for forms completion

⁴⁶ The parties agreed that the disputed OCF-18 was partially approved in the amount of $963.70. The respondent denied the balance of the OCF-18 in the amount of $87.19.

⁴⁷ The applicant submitted he is entitled to the cost of completion of the OCF-18 pursuant to the Professional Services Guideline¹⁷ (“PSG”). The applicant submitted that the service provider is entitled to claim $200.00 for the completion of the OCF-18. The applicant relied on the disputed OCF-18¹⁸, which indicated Dr. Jerome Wong, chiropractor proposed the following in the OCF-18:

$600.00 for orthotics device

$200.00 for documentation

$78.00 for TENS unit accessories

$78.00 for motion medicine

$956.00 sub-total total

$97.89 in tax

$1,050.89 total

⁴⁸ The respondent submitted that the denied portion of the OCF-18 was on the basis that it in was in excess of the hourly rate for form completion pursuant to PSG.

⁴⁹ The respondent argued that the service provider was paid based on an hourly rate, instead of the $200.00 provided for completion of an OCF-18 in accordance with the PSG and relied on its Explanation of Benefits (“EOB”) indicating such¹⁹.

⁵⁰ The respondent submitted that the applicant had not shown that the disputed portion of the OCF-18 related to form completion was reasonable and necessary.

⁵¹ After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant is entitled to the denied portion of the OCF-18.

⁵² After reviewing the OCF-18 itself, it is clear on its face that Dr. Wong charged $200.00 to complete the form; I was not able to understand how the respondent determined Dr. Wong also charged an hourly rate.

⁵³ Instead, I agreed with the applicant’s submissions, that Dr. Wong charged $200.00, which is in accordance with the PSG and therefore, the respondent must pay for it. The applicant is entitled to the balance of this OCF-18.

$699.10 for a psychological assessment and forms completion

⁵⁴ The applicant submitted that the remaining balance of the disputed OCF-18 for a psychological assessment is reasonable and necessary.

⁵⁵ The applicant relied on the report²⁰ of Dr. Davidson, which found that the applicant suffered from major depressive disorder – moderate to severe.

⁵⁶ The applicant submitted that he was found to be catastrophically impaired under criterion 8 with a class 4 marked impairment in his ADLs, persistence and pace²¹.

⁵⁷ The respondent submitted that the OCF-18 was partially denied on the basis of the hourly rate proposed versus the PSG²² as the hourly rate proposed was that of a psychologist, but the assessment was to be completed by a psychotherapist.

⁵⁸ The rates of service providers are prescribed in the PSG. The psychologist maximum hourly rate is $149.62. There is no rate specifically noted for psychotherapists. The respondent approved treatment by the psychotherapist at an hourly rate of $58.19, which is consistent with unregulated providers such as counsellors and psychometrists.

⁵⁹ To this point, the applicant relied on the matter of J.V. v. Intact Insurance Company ²³, where the Tribunal found that it a registered psychotherapist can be paid at the same hourly rate as a psychologist or psychological associate. The applicant submitted that the Tribunal considered that psychotherapists receive extensive training and experience, and their hourly rate is not defined in the PSG.

⁶⁰ The respondent argued that the applicant did not establish that this OCF-18 was reasonable and necessary.

⁶¹ The respondent relied on its Explanation of Benefits²⁴ (“EOB”) which denied the disputed OCF-18. The respondent’s EOB relied on the IE²⁵ of Dr. Arpita Biswas, psychologist.

⁶² With respect to J.V. v. Aviva Insurance Company, the respondent submitted that that decision was not relevant as, in J.V., the disputed OCF-18 was prepared by and service was to be conducted by a psychotherapist while in the subject matter, the applicant sought funding for an OCF-18 completed by a psychologist, but the assessment was completed by a psychotherapist.

⁶³ Instead, the respondent submitted the subject matter was similar to that of J.A. vs. Aviva Insurance Company²⁶, where the Tribunal found that amounts not covered by the PSG were to be determined by the parties involved. Moreover, in J.A., the Tribunal found that the disputed OCF-18 misleadingly indicated that the service would be provided by a registered psychologist and, instead, substituted a different service provider, and thereby that applicant was only entitled to the lesser rate of $58.19 per hour.

⁶⁴ The respondent submitted that it was misled to believe that the disputed OCF-18 was to be provided by a psychologist when, in fact, the OCF-18 was in fact to be provided by a psychotherapist. The respondent argued that based on this, the applicant should only be entitled to the lower hourly rate for psychotherapists.

⁶⁵ Based on the above, the respondent submitted the applicant had not shown that the OCF-18 in dispute was reasonable and necessary.

⁶⁶ The applicant disagreed that J.V. was not similar to the subject matter and submitted that the issues are nearly identical, as the disputed OCF-18 is for a psychological assessment to be conducted under the supervision of a registered psychologist, as noted in the OCF-18²⁷ itself, similar to J.V.

⁶⁷ In terms of J.A., the applicant disagreed with the respondent’s characterization of the facts before the Tribunal and submitted that the respondent was mistaken in arguing that the OCF-18 would not be conducted by a registered psychotherapist under the direct supervision of a registered psychologist.

⁶⁸ After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the disputed OCF-18 is reasonable and necessary.

⁶⁹ I considered both J.A. and J.V. and found the subject matter to be similar to J.V. and not J.A. This is because in J.A., the Tribunal found that the author of the OCF-18 was substituting the service provider.

⁷⁰ In the subject matter, after reviewing the OCF-18 itself, it is patently clear that the disputed services will be provided by a psychotherapist under the supervision of a psychologist.

⁷¹ Though I certainly understood and appreciated the respondent’s arguments, I find it has led no evidence to persuade me that the applicant or Dr. Andrew Shaul, psychologist, the author of the OCF-18, tried to mislead the respondent or the Tribunal.

⁷² Moreover, after reviewing the IE²⁸ of Dr. Biswas which the respondent relied on, I noted that the doctor found the OCF-18 reasonable and necessary and made no comments on the PSG.

⁷³ Therefore, the balance of this OCF-18 is found to be reasonable and necessary.

$2,749.80 for aqua-therapy, exercise equipment, planning and forms completion, $3,769.66 for manipulation, mobilization, therapy and forms completion and $4,395.49 for manipulation, mobilization, therapy and forms completion

⁷⁴ The applicant submitted that as a result of his accident, he sustained a tear in his left shoulder²⁹, right ankle degeneration³⁰, and a compression fracture in his lumbar spine.

⁷⁵ The applicant also submitted that Dr. Getahun noted the applicant’s limited ROM and tenderness in his lumbar spine, cervical spine and right ankle³¹.

⁷⁶ The applicant also relied on his left shoulder MRI conducted after his accident³², which showed infraspinatus fraying, a labral tear, severe glenohumeral and moderate acromioclavicular (“AC”) joint osteoarthritis and loose bodies.

⁷⁷ The applicant submitted that the OCF-18 for aqua-therapy was reasonable and necessary. The applicant relied on the OCF-18³³ itself, which includes goals of pain reduction, stress reduction, and increase of the applicant’s strength and ROM. The OCF-18 contemplates aqua-therapy assisting the applicant overcome pain with exercise in water.

⁷⁸ The applicant relied on Dr. Getahun’s opinion³⁴ that the OCF-18 was reasonable and necessary as it would provide low-impact rehabilitation for the applicant’s left shoulder, neck and back injuries.

⁷⁹ The applicant relied on clinical notes and records³⁵ from Dr. Charles Godfrey, physical medicine and rehabilitation specialist, who opined that the applicant “requires pool therapy and exercises”.

⁸⁰ The applicant relied on the above-mentioned MRI of his left shoulder, as well as an MRI of his lumbar spine, which found he suffered from advanced spondylosis and severe stenosis³⁶.

⁸¹ The applicant submitted that the OCF-18³⁷ for in the amount of $4,395.49 for chiropractic manipulation, mobilization, therapy and forms completion was reasonable and necessary, as the disputed plan addresses the limitations the applicant faces with respect to his ADLs including sitting, standing, bending, completing chores and work tasks.

⁸² The applicant submitted that the OCF-18³⁸ for in the amount of $3,769.66 for chiropractic services address the applicant’s issues with walking, performing his ADLs and work tasks and issues with sleep. The applicant noted that the OCF-18’s goal is to increase the applicant’s active therapy.

⁸³ The applicant submitted that the OCF-18s for chiropractic services noted that the applicant’s barriers to recovery include his radiculopathy, arthritic changes in his left shoulder and previous back surgeries.

⁸⁴ The applicant also submitted that both OCF-18s for chiropractic services also recommend that the applicant participate in spinal decompression and aquatic therapy.

⁸⁵ The applicant also relied on the OCF-18 in the amount of $3,769.66 of Dr. Wong which noted that the applicant’s left shoulder function improved based on the applicant’s previous OCF-18.

⁸⁶ The applicant also relied on Dr. Wong’s OCF-18 in the amount of $4,395.49, where the applicant reported that massage was helping increase his ROM and reduce his pain.

⁸⁷ With respect to the chiropractic OCF-18s, the applicant relied on the evidence of Dr. Getahun³⁹, where the doctor opined that the OCF-18s were reasonable and necessary and would benefit the applicant by assisting with his strength, managing his cervical and lumbar and left shoulder pain.

⁸⁸ The applicant submitted that pain management and increased strength and ROM make the OCF-18 reasonable and necessary, relying on 16-000960 v Northbridge Personal Insurance Corporation⁴⁰, which found that reduction of pain in order for a person to return to their ADLs was a legitimate goal and made the subject OCF-18 reasonable and necessary.

⁸⁹ The respondent submitted that the applicant has failed to show that the three disputed OCF-18s are reasonable and necessary.

⁹⁰ The respondent submitted that the disputed OCF-18s as a whole offer no “true benefit” to the applicant and relied on the decision of 16-003010 v Aviva Insurance Canada⁴¹, where the Tribunal found the applicant did not meet her onus as she was unable to show that she benefited from the dispute chiropractic treatment in the past or that it helped her recover from her accident.

⁹¹ The respondent relied on its EOB⁴², which stated that based on the IE report⁴³ of Dr. Fathi Abuzgaya, orthopaedic surgeon, aqua therapy would not help him with his functional recovery based on his current pain complaints and symptoms; therefore, the OCF-18 was not reasonable or necessary.

⁹² Dr. Abuzgaya’s October 2019 IE report referred to his previous IE report of July 29, 2019 in finding that aqua therapy was not reasonable and necessary as the doctor did not believe it would benefit the applicant’s further functional recovery. The doctor noted he did not have the clinical notes and records of the applicant’s orthopaedic surgeon, and that the applicant would also be undergoing an MRI, which the doctor wished to review.

⁹³ The respondent argued that the applicant stated many times that physiotherapies have not assisted with his pain issues. The respondent argued that as the applicant has not provided persuasive evidence that pain relief is an “achievable” goal of the disputed OCF-18s, they must be considered not to be reasonable and necessary.

⁹⁴ Based on the above, the respondent submitted that the applicant had not met his evidentiary burden to show that the disputed OCF-18s were reasonable and necessary.

⁹⁵ After considering the submissions and evidence of the parties, based on a balance of probabilities’, I find that the OCF-18 for aqua therapy was reasonable and necessary.

⁹⁶ I agreed with the applicant, namely that the OCF-18 hoped to reduce the applicant’s pain, stress, and increase his strength and ROM, are reasonable goals for treatment.

⁹⁷ I also found Dr. Getahun’s evidence persuasive that aqua therapy was reasonable and necessary to treat the applicant’s on-going shoulder, neck and back pain.

⁹⁸ The OCF-18 contemplates aqua-therapy assisting the applicant overcome pain with exercise in water, which was also recommended by Dr. Godfrey.

⁹⁹ With respect to the respondent’s evidence, though the respondent provided me with its EOB as the basis of denying the disputed OCF-18, it chose not to submit the original IE forming the basis of the denial instead relied on the above-discussed Paper Review.

¹⁰⁰ Though I appreciated the respondent’s evidence, without being able to review Dr. Abuzgaya’s initial IE report, I did not find the EOB and updated Paper Review persuasive that the OCF-18 was not reasonable or necessary.

¹⁰¹ Moreover, Dr. Abuzgaya’s Paper Review did not provide what I would describe as fulsome reasoning as to why aqua therapy was not beneficial nor make any comments on the applicant’s MRI with relation to the OCF-18. Though Dr. Abuzgaya had wished to review the applicant’s MRI, it does not appear the doctor actually commented on the MRI in relation to the disputed treatment plan; Dr. Abuzgaya’s lack of clinical rationale for his findings concerned me, and I found it less than persuasive.

¹⁰² In terms of the OCF-18s for chiropractic services, I also found them to be reasonable and necessary. Again, I was persuaded by Dr. Getahun’s evidence, which supported the disputed treatment plans to address the applicant’s left shoulder pain, neck and back pain.

¹⁰³ I also agreed with the applicant’s submissions with respect to 16-000960, and that pain reduction was a legitimate goal of treatment and treatment for such makes such OCF-18s reasonable and necessary.

¹⁰⁴ With respect to the respondent’s submission of the matter of 16-003010, I was not provided with evidence from the respondent that supported its position that the applicant reported that the disputed treatments did not help relieve his subjective pain or that this goal was not achievable.

¹⁰⁵ Instead, the only evidence that was brought to my attention was that of the applicant, where he reported to Dr. Wong that physical therapy was assisting him with his pain.

$2,200 for an in-home occupational therapy assessment and forms completion

¹⁰⁶ The applicant submitted that he is entitled to a benefit in the amount of $2,200.00 for an in-home, occupational therapy assessment.

¹⁰⁷ The applicant submitted that as a result of his accident, he suffers from impairments related to his accident that require occupational therapy and attendant care.

¹⁰⁸ The applicant relied on the evidence of Dr. Davidson⁴⁴, which found the applicant experiences challenges when completing his ADLs and requires help with dressing, has difficulty showering, and can only drive short distances due to pain and his impairments.

¹⁰⁹ The applicant also relied on the evidence⁴⁵ of Dr. Getahun, who opined that an in-home, attendant care assessment was reasonable and necessary to identify and address the applicant’s attendant care needs.

¹¹⁰ Dr. Getahun found that the applicant has significant impairments to the cervical spine, lumbar spine and to his left shoulder. Within a balance of medical probabilities these injuries and impairments would affect his ability to perform self-care duties including dressing, bathing and grooming. The doctor also opined that the OCF-18 would benefit the applicant to determine and identify his specific needs.

¹¹¹ The applicant submitted that based on his medical history, impairments and limitations, he suffers from functional impairments that prevent him from performing his tasks and home activates.

¹¹² The applicant submitted that based on the test seen in H.T.T. v Aviva Insurance Canada⁴⁶, he has met his evidentiary onus and is entitled to the OCF-18. In H.T.T., the Tribunal determined that an applicant must show that she has a functional impairment that prevents her from performing her tasks/activities in her home to justify this type of assessment.

¹¹³ The applicant also argued that based on the wording of section 25(1)(4) of the Schedule, the respondent is required to pay for the occupational therapy assessment.

¹¹⁴ The respondent disagreed with this position and submitted that the applicant has failed to show that the disputed OCF-18 is reasonable and necessary.

¹¹⁵ The respondent relied on its EOB⁴⁷, which informed the applicant that the disputed OCF-18 was not reasonable and necessary. The respondent also noted that the EOB stated it had been 22 months since the applicant’s accident, and the respondent did not receive objective medical evidence to support the disputed OCF-18.

¹¹⁶ The respondent argued that the applicant has incurred “a significant amount of treatment” before the submission of the disputed OCF-18. Based on this, the respondent submitted that if the applicant required help with his self-care tasks, he would have made a request for such earlier on in the accident-benefit process.

¹¹⁷ The respondent also submitted that the applicant has not filed an Assessment of Attendant Care Needs (“Form 1”) and therefore, has not shown that the disputed OCF-18 is reasonable and necessary.

¹¹⁸ The request for the Form 1 appears to be based on the form’s findings with respect to the applicant’s ADLs and difficulties with such, including his cleaning, cooking and housekeeping activities, and I find them to be tangentially related.

¹¹⁹ The applicant disputed the respondent’s assertion that he had not filed her Form 1 and submitted a copy of her occupational therapy assessment and Form 1 assessment, both authored by of Janie Kim, occupational therapist⁴⁸ with his Reply submissions and evidence. Ms. Kim found that the applicant required attendant care services in the amount of $4,116.24 per month.

¹²⁰ After considering the evidence and submissions of the parties, based on a balance of probabilities, I find that the applicant is not entitled to the in-home, occupational therapy assessment.

¹²¹ I also chose to accept the test seen in H.T.T., meaning that for an insured person to be entitled to an in-home assessment, he must show, based on a balance of probabilities, that he suffers from a functional impairment which prevents him from performing tasks/activities in his home. I found this decision persuasive. Though I am not bound by previous decisions of the Tribunal, I agreed that this decision is a useful resource when establishing entitlement to an in-home, occupational therapy assessment.

¹²² In this case, I find that the applicant has not shown that he suffers from a functional impairment which prevents him from performing his tasks/activities at home. I was persuaded by Dr. Davidson’s finding, which support the applicant’s self-reporting of having difficulties with his ADLs and that the doctor’s findings were supported by Dr. Getahun. I also accepted that Dr. Getahun found that the applicant has impairments in relation to his ADLs, as this was not disputed by the respondent.

¹²³ However, with respect to the evidence of Ms. Kim, as the applicant failed to provide this evidence with his original submissions, I gave it little weight. This is because the applicant ought to have provided this evidence with his disclosure or original submissions and not in reply to the respondent’s evidence to ensure that the respondent is able to respond properly to the applicant’s arguments and evidence.

¹²⁴ As the applicant did not provide contemporaneous medical records from his family doctor or other medical providers supporting his position that he suffers from a functional impairment, I did not find this OCF-18 to be reasonable and necessary.

¹²⁵ I agreed with the respondent’s position, namely that the applicant did not provide persuasive evidence as to why he required an in-home, occupational therapy assessment nearly two years after his accident. Without this evidence, I find that the applicant has not met his evidentiary burden. Therefore, the applicant is not entitled to the in-home, occupational therapy assessment.

Interest and Award

¹²⁶ Section 51 of the Schedule states that interest is payable on any benefits that are not paid by the insurer within the time prescribed by the Schedule.

¹²⁷ As I have found that the applicant is entitled to the OCF-18s in the amounts of $87.19 for chiropractic services, $699.10 for a psychological assessment, of $2,749.80 for aqua-therapy, $3,769.66 and $4,395.49 for chiropractic services and $2,200 for an in-home occupational therapy assessment, the applicant is found to be entitled to interest on such and in accordance with s. 51.

¹²⁸ The applicant also submitted he ought to be entitled to a special award because the respondent unreasonably withheld and delayed payments to the applicant.

¹²⁹ The test for determining if an award is appropriate can be found in Persofsky v. Liberty Mutual Insurance Co.⁴⁹ and if needed, the quantum. Persofsky sets out the following factors for considering a special award:

i. the blameworthiness of the insurer’s conduct;

ii. the vulnerability of the insured person;

iii. the harm or potential harm directed at the insured person;

iv. the need for deterrence;

v. the advantage wrongfully gained by the insurer; and

vi. any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.

¹³⁰ The Tribunal added a seventh factor to consider when assessing a special award in the matter of 17-006757 v Aviva Insurance Canada⁵⁰, being the overall length of the delay.

¹³¹ The applicant submitted that the respondent arbitrarily denied the OCF-18s for chiropractic service in the amount of $87.19 and for a psychological assessment in the amount of $699.10.

¹³² The applicant submitted that as the respondent had previously approved of OCF-18s for the applicant’s chiropractic services, it ought to have been aware of the standard PSG rate of $200.00 for form completion.

¹³³ The applicant argued that the respondent acted in bad faith and that its denial of nominal amounts on the disputed OCF-18s is evidence of such.

¹³⁴ The applicant also submitted that the respondent did not act in good faith when adjusting the OCF-18s in the amounts of $2,749.80 for aqua therapy and $4,395.49 for chiropractic services.

¹³⁵ The applicant submitted that the OCF-18 for aqua therapy was sent to the respondent before its IE conducted by Dr. Abuzgaya. The applicant submitted the OCF-18 was not sent to the attention of the doctor and he did not provide his opinion. The applicant submitted that the respondent chose to deny the OCF-18 on a “nonmedical, unsupported and erroneous opinion” that the OCF-18 would not help the applicant functionally recover.

¹³⁶ The applicant also argued that the respondent acted unreasonably by requesting documents from the applicant, despite the fact that the applicant submitted he had already done so 30 days before the denial letter⁵¹.

¹³⁷ The applicant submitted that the OCF-18 for $3,769.66 for chiropractic services was denied based on Dr. Abuzgaya’s IE, where the doctor was unable to comment on the reasonableness and necessity of the disputed treatment until he had reviewed the applicant’s MRI and clinical notes and records. The applicant argued that this MRI was provided to the respondent on September 24, 2019⁵².

¹³⁸ The applicant submitted that the respondent failed in its duty to manage and adjust the applicant’s file, as the respondent did not request an addendum report to address the disputed OCF-18.

¹³⁹ With respect to the OCF-18 for an in-home assessment, the applicant submitted that this denial was done in bad faith and ought to be reprimanded via special award.

¹⁴⁰ The respondent submitted that the subject matter before the Tribunal does not warrant an award.

¹⁴¹ The respondent relied on the matter of J. G. v Travelers Canada⁵³, where the Tribunal found that “unreasonably withheld” can be defined as “behavior by an insurer which was excessive, imprudent, stubborn, unyielding or immoderate, in withholding or delaying payments” and that an award was not punish due to a differing view of the file.

¹⁴² The respondent submitted that the medical records show that the applicant’s requested OCF-18s were not reasonable or necessary and that there is no basis for the Tribunal to provide an award.

¹⁴³ After considering the submissions and evidence of the parties, based on a balance of probabilities I find that the applicant is entitled to a special award in respect of the $87.19 for chiropractic OCF-18 based on the unreasonable conduct of the respondent.

¹⁴⁴ As discussed above, I am left as a loss why the respondent chose to deny the amount of $87.19 for chiropractic services. As noted, the respondent is aware of the $200.00 form completion form of the PSG, and find its actions to be unreasonable, excessive and immoderate, as it ought to have paid for the balance of this disputed benefit.

¹⁴⁵ However, with respect to the other OCF-18s that have been found to be reasonable and necessary, I do agree that the respondent’s actions were not excessive or unreasonable. In terms of the psychological assessment, as noted by the respondent, this issue can cause issues for the parties due to their interpretation of the hourly rates. Moreover, as the applicant has not provided evidence that the respondent acted unreasonably, I decline to order a special award with respect to this benefit.

¹⁴⁶ With respect to the OCF-18s for aqua therapy and chiropractic services, I also decline to order a special award, as I agreed with the respondent’s arguments with respect to J. G. v Travelers Canada and that in this case, though the respondent incorrectly denied the OCF-18s, this was not done in bad faith but rather based on the findings of the respondent’s medial expert. I noted that Dr. Abuzgaya did review the applicant’s MRI in his Paper Review.

¹⁴⁷ With respect to the in-home assessment, I was not presented with persuasive evidence that the respondent acted in an excessive, imprudent, stubborn, unyielding or immoderate way to withhold or delay payment. Instead, based on my findings, it appears the applicant failed to send his evidence to the respondent within the timelines set by the Tribunal.

¹⁴⁸ Therefore, the applicant is entitled to a special award on the amount of $87.19.

¹⁴⁹ When considering the quantum of the award, I relied on 17-006757 v Aviva Insurance Canada ⁵⁴ , which found that the amount of a special award should be considered based on the principles of the Insurance Act, as established in Persofky v. Liberty Mutual⁵⁵ and that the award should be proportionate to the following factors:

i. The blameworthiness of the insurer's conduct;

ii. The vulnerability of the insured person;

iii. The harm or potential harm directed at the insured person;

iv. The need for deterrence;

v. The advantage wrongfully gained by the insurer from the misconduct; and

vi. Take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct.

¹⁵⁰ Based on the above, I find that the applicant is entitled to 50% of the disputed benefit of $87.19, based on the respondent’s conduct and the reasons discussed above.

Conclusion and ORDER

¹⁵¹ The applicant is not entitled to a benefit in the amount of $14,158.89 for a mattress, adjustable base, assistive devices and forms completion.

¹⁵² The applicant is not entitled to a benefit in the amount of $4,982.50 for an orthopaedic mattress and forms completion.

¹⁵³ The applicant is entitled to a benefit in the amount of $87.19 for chiropractic services fees and for forms completion and interest on such.

¹⁵⁴ The applicant is entitled to a benefit in the amount of $699.10 for a psychological assessment and forms completion and interest on such.

¹⁵⁵ The applicant is entitled to a benefit in the amount of $2,749.80 for aqua-therapy, exercise equipment, planning and forms completion, and interest on such.

¹⁵⁶ The applicant is entitled to a benefit in the amount of $3,769.66 for manipulation, mobilization, therapy and forms completion, and interest on such.

¹⁵⁷ The applicant is entitled to a benefit in the amount of $4,395.49 for manipulation, mobilization, therapy and forms completion, and interest on such.

¹⁵⁸ The applicant is not entitled to a benefit in the amount of $2,200 for an in-home occupational therapy assessment and forms completion.

¹⁵⁹ The applicant is entitled to a special award in the amount of 50% on the amount of $87.19.

Released: October 4, 2022

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