Citation: Campuzano v. Aviva Insurance Company, 2023 ONLAT 21-013953/AABS

Licence Appeal Tribunal File Number: 21-013953/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:

Esther Campuzano

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kevin Lundy

APPEARANCES:

For the Applicant:

Esther Campuzano, Applicant Eli Jakubovic, Counsel Bianca Zimperi, Counsel

For the Respondent:

Almeda Lucas, Representative

Andrea Bandow, Counsel

Court Reporter:

Rachel Thompson

HEARD: by Videoconference:

September 27, 2023

OVERVIEW

1Esther Campuzano (the ‘applicant’) was involved in an automobile accident on July 23, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the ‘Schedule’). The applicant was denied benefits by Aviva Insurance Company (the ‘respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to $3,831.19 for occupational therapy proposed by for Innovative Occupational Therapy Services in a treatment plan/OCF-18 (‘plan’) dated March 25, 2021?

2. Is the applicant entitled to $3,332.11 for occupational therapy, proposed by Innovative Occupational Therapy Services in plan dated May 14, 2021?

3. Is the applicant entitled to $622.00 for chiropractic services, proposed by Chiropractic Works in a plan dated June 28, 2022?

4. Is the applicant entitled to attendant care benefits in the amount of $845.35 per month from August 25, 2021 to date?

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

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

3At the start of the hearing, the applicant withdrew issues 1 and 4 above.

RESULT

4The applicant is not entitled to $3,332.11 for occupational therapy, proposed by Innovative Occupational Therapy Services in plan dated May 14, 2021.

5However, the applicant is entitled to $622.00 for chiropractic services, proposed by Chiropractic Works in a plan dated June 28, 2022, plus any applicable interest, subject to subsection 47(2) of the Schedule.

6The applicant is not entitled to an award under section 10 of O. Reg. 664 because the respondent unreasonably withheld or delayed payments to the applicant.

PROCEDURAL ISSUES

Exclusion of Evidence

7The applicant intended to rely upon a statement of account from her chiropractor, Dr. Paul Charlton at Chiropractic Works, covering services to the date of the hearing. The respondent opposed the admission of this document as the applicant had not disclosed it pursuant to the production order in any of the three case conference orders and reports (‘CCROs’) issued by the Tribunal. Counsel for the applicant explained that she had obtained the most recent update to this statement on the day before the hearing. She chose not to include an earlier version in the disclosed brief of documents as this edition would not have included the most recent entries and she preferred to rely on the latest version in the interest of completeness.

8I excluded this evidence as the applicant could have and should have disclosed it to the respondent as a matter of reasonable notice. Had the applicant disclosed an earlier version of the statement pursuant to the production order, the respondent would have been put on notice that the applicant intended to rely upon this evidence at the hearing. Subsequent production of an updated version that included the more recent entries would have resulted in significantly less prejudice to the respondent as it would have been aware of the original document and that entries would have continued to the date of the hearing. To admit the complete document without any prior notice would have denied the respondent a reasonable opportunity to review the evidence prior to the hearing itself.

9However, the respondent did not specifically contest the applicant’s testimony that she incurred the expenses described in the statement of account.

Denial of Adjournment

10At the end of the hearing, the respondent requested that the parties provide their closing submissions either at a subsequent half day continuation or via written submissions rather than orally and immediately following the close of evidence. The applicant opposed this request as inefficient and was prepared to proceed. I denied the respondent’s request as the hearing had been adjourned peremptory pursuant to the CCRO dated June 1, 2023 and the parties should have been prepared to complete all evidence and submissions on the scheduled hearing date without further delay. As well, although the issues at the hearing differed from those listed in that order, these changes resulted in less disputed issues for the respondent to address rather than more. As the parties are expected to attend the videoconference hearing ready to present evidence and submissions, absent extraordinary circumstances, I find no basis for further delay.

ANALYSIS

Background

11The applicant testified that prior to the accident, she was in good health and active. She went to the gym regularly, lifted weights, rode her motorcycle and enjoyed an active social life, including riding with friends. Although she had been diagnosed with hyperthyroidism, she testified that she was at a healthy weight at the time of the accident. She also had degenerative osteoarthritis in her knees prior to the accident.

12On Thursday, July 23, 2020, the applicant was riding her motorcycle and had stopped at an intersection. She was wearing her helmet. As she began to advance on the green light, she was struck twice from behind by an SUV. The SUV did not directly strike the applicant’s body. Although the second impact was significant, she was not ejected from the motorcycle and did not lose consciousness. She felt pain immediately in her back and left arm and recalled that the second impact pushed her forward, causing pain to her left hand as she gripped the motorcycle. Although her motorcycle was written off, the damage did not extend to the driver’s area.

13The motorcycle did not fall over and was held upright and in place by the SUV. The applicant was able to dismount the bike and sat down on the nearby traffic island and waited as emergency services arrived. She assumed that one of the witnesses contacted them as she was in shock and did not contact them. She described the immediate pain throughout her body as if every muscle had atrophied and spasmed and she received significant bruising. The fire department attended first, followed by an ambulance and police. Paramedics examined the applicant at the scene and determined that she did not have any broken bones. As confirmed in the Ambulance Call Report, she denied any vomiting or dizziness but could not recall if she reported any neck pain. Although she did not recall estimating to the paramedics that her pain scale for her back and shoulders was 4/10, she could not contest making this statement as recorded in the Ambulance Call Report. She declined the paramedics’ offer to transport her to the hospital as the accident occurred at the height of the pandemic and she was concerned about infection. The paramedics nonetheless gave her some pain medication. The police officer who attended at the scene drove her home and she did not attend at the hospital on the day of the accident.

Entitlement to $3,332.11 for Occupational Therapy

14I do not find that the applicant met her evidentiary onus to demonstrate on the balance of probabilities that this treatment plan is reasonable and necessary.

15Pursuant to section 15 of the Schedule, the respondent is liable to pay for all reasonable and necessary medical expenses incurred by or on behalf of the applicant. Subsection 16(1) of the Schedule provides that the respondent shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection 16(3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.

16Although the applicant suffered a brief reduction in her functionality, she was able to return to the activities of her daily living and employment after a comparatively short period of recovery.

17The applicant attended at her massage therapist the next day and attended at the office of her family doctor, Dr. Afrooz Drakshan, on July 25, 2020 as Dr. Drakshan was unavailable on the day immediately following the accident. The applicant had seen Dr. Drakshan since at least 2014, well before the accident and continues to see her as her family doctor. Dr. Drakshan examined the applicant thoroughly and noted her bruising. She prescribed muscle relaxants and Celebrex and recommended a hot compress and rest and later prescribed medication to address the applicant’s sleep issues caused by pain. She also referred the applicant for imaging, which confirmed the absence of fractures. As Dr. Drakshan found that the applicant had sustained soft tissue injuries, she recommended paramedical treatment, prompting the applicant to commence intensive chiropractic treatment, acupuncture and physiotherapy.

18Dr. Drakshan submitted an OCF-3 Disability Certificate (‘OCF-3’) on behalf of the applicant on October 27, 2020. The OCF-3 listed the applicant’s injuries as “lower back strain/sprain, neck pain muscle strain/sprain” and “severe back pain worse with movement unable to sit or move.”

Pre-Existing Medical Issues

19The applicant’s pre-existing conditions were documented in the clinical notes and records from Dr. Drakshan. For instance, on December 21, 2019, Dr. Drakshan recommended massage and acupuncture for knee and back pain caused by osteoarthritis. Although the applicant denied any discussion of osteoarthritis in her back, she could not explain the inclusion of this item in her doctor’s notes.

20Following the accident and as noted in the OCF-3, she gained weight and was not able to be as physically active, though she continues to attend a spin class on a regular basis. I find that despite the applicant’s lack of recollection, Dr. Drakshan’s clinical notes and records indicate that they had discussed weight loss repeatedly before and after the accident and that Dr. Drakshan had recommended more physical activity and aerobic exercise. Similarly, she discussed a “longstanding history of weight issues” in the context of her hyperthyroid condition with her endocrinologist, Dr. Christopher D’Sylva, MD, on February 22, 2021. She could not recall stating to Dr. D’Sylva that she had stopped exercising due to the pandemic.

21In addition to her historic weight issues associated with her hyperthyroidism, the applicant has reported pains that commenced well after the accident. For instance, the applicant saw Dr. Drakshan on Monday, August 8, 2022 and reported severe burning and numbness in her left hip that had started only the previous Wednesday. At the hearing, the applicant agreed that this complaint did not start immediately following the accident. Similarly, when she saw her vein specialist, Dr. Beder, physician, on April 13, 2022, she discussed severe pelvic pain that also did not commence immediately following the accident.

22However, although the respondent highlighted the existence of health issues preceding the accident, it did not contest the soft tissue injuries observed by Dr. Drakshan on July 25, 2020 or that the applicant’s complaints of pain and difficulty sitting were not caused by or at least aggravated by the collision.

Activities of Daily Living

23The parties essentially agreed that the applicant is able to carry out her activities of normal life and this is supported by the evidence presented. However, her level of functionality with respect to daily living offers some context to her ability to perform her employment duties, particularly as the latter comprises a comparatively narrow set of tasks potentially affected by her symptoms.

24On April 22, 2021, occupational therapist, Andrea Li assessed the applicant virtually on Zoom. This involved a room-by-room tour of the applicant’s residence, including her work area. Ms. Li also observed the applicant perform various exercises to assess her range of movements, transfers and functional abilities. Through checked boxes in Part 8 of the OCF-18 Treatment and Assessment Plan (‘OCF-18’), Ms. Li stated that the applicant is unable to carry out her tasks of employment but is able to carry out her activities of normal life.

25Regarding her level of physical activity following the accident, although the applicant no longer lifts weights, she returned to the gym to exercise and for social interaction and her mental health, particularly as she no longer sees her friends from motorcycle riding. She described her level of activity upon her return as less than before the accident and as much as she could manage. However, this evidence differed significantly from her statement to Dr. Drakshan that she engaged in “high activity since the accident.” She agreed with this statement under cross-examination and emphasized that she was exercising both before and after the accident. She denied any recollection of discussing exercise with Dr. Drakshan or Dr. Drakshan having recommended that she limit her exercise. However, a note in Dr. Drakshan’s records indicated a discussion of healthy lifestyle and dietary changes occurred on April 23, 2021. While the applicant denied this and other discussions with Dr. Drakshan, she acknowledged that she trusts her family doctor and was confident that she records their conversations accurately. Ultimately, she agreed with the content of these notes but denied that the discussion ever took place. The applicant acknowledged that she has never viewed her doctor’s notes and could offer no explanation for her doctor’s notes on these issues. On the balance of probabilities, I find that Dr. Drakshan’s notes represent an accurate account of her discussions with the applicant on her level of physical activity after the accident. Consequently, I find that the applicant’s level of activity following the accident may not have decreased quite as sharply as she described in her testimony.

26Similarly, the applicant advised Dr. Eyal Bodenstein, psychologist, in two interviews in December 2020 that she is able to climb stairs, perform her self-grooming and self-care activities and carry out household maintenance activities, as reported to Dr. Bodenstein. At the hearing, the applicant explained this independence as a matter of necessity as she resides alone and there is no one else to assist her.

27This description of the applicant’s recovery is similar to the following finding by Dr. Alborz Oshidari, physiatrist, in his report dated August 8, 2022:

At the present time, she remains independent in activities of daily living considering she does not have any choice but to perform her house chore activities. She is required to pace and rest. When she does not feel comfortable, she does not do the cleaning.

28It is worth noting that Ms. Li only evaluated the applicant virtually and therefore could not view her residence and response to physical tests to the same degree as in person. By contrast, at the request of the respondent, Rodney Pritchett, OT attended at the applicant’s residence and conducted an occupational therapy assessment on August 4, 2021, slightly more than one year after the accident.

29Mr. Pritchett conducts approximately fifteen to twenty independent assessments each month, arranged by Viewpoint Medical Assessments (‘Viewpoint’) and roughly 95% for insurers. He acknowledged that he had no independent recollection of the assessment and relied upon his report dated August 17, 2021. He also could not state whether his report went through any form of quality control from Viewpoint after he submitted it, but expressed confidence that it accurately reflected his findings without subsequent alterations. The applicant submitted no evidence to the contrary.

30The applicant stated that the treatments received made her somewhat more comfortable sitting and sleeping and better able to cope with the pain. She lives alone on the third floor of her building and there is no elevator, compelling her to carry groceries and other items up three flights of stairs. As a result, the treatments assisted her with daily activities despite her pain. As the applicant still experiences balance impairments getting in and out of the shower and bath and transfers on and off the toilet, Ms. Li recommended the installation of something to hold other than the bathroom sink.

31By contrast, Mr. Pritchett observed no obvious balance difficulties despite tests and observations of transfers. He also noted that she was able to perform all six tests without encouragement and observed nothing to indicate that her functionality was impaired. Given the in-person format of his assessment, I prefer Mr. Pritchett’s evidence over that of Ms. Li as he was able to observe her performance on a battery of tests and was therefore less dependent on her self-reported subjective interpretation of her own functionality.

Tasks Related to Employment

32The applicant takes the position that she is unable to carry out her tasks of employment as a result of the injuries caused in the accident and that the proposed treatment plan is reasonable and necessary to assist in her recovery. Despite the respondent’s refusal of coverage, she still attends chiropractic and massage treatment but still experiences spasmic pain in her back, often while sitting at work.

33In her OT report, Ms. Li stated the following with respect to the applicant’s functionality at work:

In terms of her vocation, Ms. Campuzano is currently working full-time as a Donor Service Coordinator. She is working from home due to Covid-19 restrictions. She has been tolerating her pain symptoms to meet her job demands. Due to ongoing pain symptoms, it is highly recommended that she be provided with an ergonomic setup at home.

34However, the evidence as a whole suggests that the applicant was only prevented from carrying out these tasks for a comparatively short period and that she had already addressed the primary source of discomfort while sitting for prolonged periods herself.

35The applicant’s employment duties primarily involve computer work. As a result of restrictions related to the COVID-19 pandemic, the applicant works at home and had set up a home office in her one bedroom apartment. Prior to the accident, she used an ordinary dining room chair in her work area. As a result of Ms. Li’s assessment of the applicant’s desk, she replaced her dining room chair with an office chair at her desk as sitting for long periods had resulted in pain and discomfort. She did not indicate that this more ergonomic chair was insufficient for this purpose or that another device, such as the standing desk suggested by Ms. Li, would better assist her to work without pain or otherwise carry out her employment tasks. Even in the absence of the other assistive devices recommended by Ms. Li, in combination with her chiropractic and other treatments, her improved work area has allowed her work more comfortably three years after the accident, though she noted that she believes she will always experience some degree of pain while sitting.

36Most significantly, the applicant returned to work ten days after the accident on reduced hours and duties then returned to her full hours and duties fourteen days after the accident. Although her demanding physiotherapy schedule has resulted in some missed work days, there was no indication that she missed work as a direct result of her symptoms after her regular hours were reinstated.

37Although Ms. Li recommended assistive devices related to her home office in her OT report, Mr. Pritchett did not believe that are were necessary to assess her functionality specifically with respect to her employment, although he agreed that her rehabilitation would include restoring her functionality to work without pain. He agreed that the goals of an OT could include improving pain management at work and if required ergonomic set up of a work station. He also agreed that the role of an OT could involve education on pain management and related exercise as well as sleep hygiene education and increase socialization and recreational activities, such as motor cycle riding. Nonetheless, with respect to the facts of the present case, the applicant did not clarify how her comparatively minor remaining symptoms interfere with her carrying out the tasks of her employment beyond some intermittent discomfort and would therefore necessitate such intervention.

38Mr. Pritchett conducted a minimal investigation with respect to employment tasks as he spent the majority of the eighty minute assessment focussed on issues related to her eligibility for an attendant care benefit, later withdrawn at the hearing. He acknowledged only a basic understanding of the applicant’s employment and was unaware if she worked from home, which would seem relevant given the subject matter of the disputed plan and where his assessment took place. He opted not to investigate issues related to her work area or ergonomic items that could assist her to cope with pain. He also chose not to inquire about her pain symptoms in the context of her work and he neither observed any cognitive issues, nor conducted any formal cognitive tests. She also did not recall whether she reported any changes in cognition to Mr. Pritchett.

39However, I find this lack of focus on the applicant’s functionality regarding her employment tasks was reasonable given her prompt return to regular hours and duties and her overall level of functionality at the assessment. She advised him that she was independent in her self-care and housekeeping. Although she stated at the hearing that she is unable to sit for lengthy periods, she could not contest the respondent’s submission that she did not make this claim to Mr. Pritchett.

40As a result, he did not agree with Ms. Li’s recommendation that assistive devices were required and explained that he chose not to inquire further into the applicant’s work set up as she had advised him that she was back at work full time as of the date of the assessment.

41Mr. Pritchett stated in the report that the applicant had complained of intermittent discomfort in her neck, right shoulder and lower back and was coping with anxiety related to getting back on a motorcycle. Nonetheless, he also stated that she had advised him that “she has achieved approximately 90% recovery from injuries sustained in the subject motor vehicle accident and has resumed participation in her pre-accident personal care, housekeeping and employment activities.”

42According to a letter from the respondent to the applicant dated July 4, 2022, the 90% recovery statement by the applicant combined with the two years since the accident prompted the respondent to schedule the subsequent section 44 assessment with Dr. Oshidari, on July 21, 2022 to obtain more information.

43Whether or not Mr. Pritchett had any specific recollection of the applicant uttering this statement, at the hearing, she did not substantively contest its content as she has resumed her pre-accident participation in personal care, housekeeping and employment, albeit perhaps without endorsing the alleged 90% recovery estimate. She also did not directly dispute the statement for the truth of its contents, only that she uttered it.

44Mr. Pritchett had no independent recollection of the statement and agreed that even if the applicant had said this, it is entirely subjective and it would not necessarily indicate that she does not need further treatment or that the statement is equivalent to his own determination that she had in fact recovered to this extent. However, he noted at the hearing that this statement was generally consistent with other statements that she made with respect to her recovery during the assessment and his own observations of her functionality.

45For instance, Mr. Pritchett recorded the following statements from the applicant with respect to her psychological state in his report dated August 17, 2021:

Changes in mood: She reports she is “way better” than before. At present, she reports she is “happier” and “not depressed”. She reports there was a time when she was experiencing anxiety attacks and found this to be so debilitating that it would prevent her from engaging in activity. She reports her last “panic attack” was in January 2021 and she no longer experiences this anxiety. Overall, she reports she is managing her anxiety except for her “vehicle anxiety”. That is, she feels anxious whenever she is around a motorcycle. She is unsure if she will ride a motorcycle again. However, she reports no difficulties operating her car.

46The applicant did not recall making these comments to Mr. Pritchett and although she disagreed with his interpretations of her words, she did not substantively contest the content of the statements. She did not clarify how Mr. Pritchett misinterpreted or misrepresented her words and did not know whether she could have contacted him through her counsel about his report following the assessment. However, the applicant offered similar descriptions of her recovery to Dr. Bodenstein. Mr. Pritchett ultimately found the treatment plan not reasonable or necessary as he found the applicant to be “a very functional individual” on the date of the assessment.

47Although the applicant continues to experience pain from her injuries, in light of all of the evidence, she has achieved maximal recovery and demonstrated a high level of independence and functionality to the extent that the treatment plan is not reasonable or necessary.

Entitlement to $622.00 for Chiropractic Services

48I find that the applicant is entitled to $622.00 for chiropractic services, proposed by Chiropractic Works in a plan dated June 28, 2022.

49As with the prior issue, the applicant bears the evidentiary onus to demonstrate that the treatment plan is reasonable and necessary. Although the precise physical cause for her pain remains undiscovered, both her chiropractor and the respondent’s expert assessor effectively agreed that she has pain and a restricted range of movement. Although the treatment received has not resulted in permanent recovery, I find that the evidence indicates that it is reasonable and necessary in all of the circumstances.

50The applicant has received physiotherapy and massage therapy for one and a half years following the accident. She receives her chiropractic treatment from Dr. Charlton at Chiropractic Works in Toronto. As of the date of the hearing, the applicant continued to attend chiropractic treatment albeit at a reduced frequency of approximately once every four to five weeks. She also attends massage therapy at a similarly reduced rate and estimated that she attended for this treatment approximately six times over the past year, with appointments for chiropractic treatment and acupuncture later in the week of the hearing.

51She stated that she has not stopped attending for these services since the accident as Dr. Charlton’s therapy relieves the pain in her back and shoulder. She believes that ending treatment would result in increased pain and stiffness in her back, hips, shoulder and a decline in her comfort and mobility. The relief from each treatment generally lasts four to five weeks. She pays for the treatment out of pocket in combination with her benefits and intends to continue attending for this treatment indefinitely. She pays $75.00 per one hour session but noted that this rate will increase to $85.00 as of October 1, 2023. She estimated that she attended between ten and twelve sessions after the respondent denied coverage.

52On July 26, 2022, the applicant underwent an approximately thirty minute in-person physical medicine and rehabilitation assessment with Dr. Oshidari and advised him that her primary concern was lingering pain in her lumbar area. She did not recall if she discussed any concentration issues to Dr. Oshidari.

53Like Mr. Pritchett, Dr. Oshidari receives this independent assessment assignment from Viewpoint. Also like Mr. Pritchett, Dr. Oshidari acknowledged that he had no independent recollection of his assessment of the applicant and relied entirely on the findings in his report dated August 9, 2022. He also conducts a significant number of such assessments each year, almost exclusively for various insurance companies. He retains his notes until Viewpoint issues his report. After he reviews his report, he shreds his notes. He explained that while he keeps a copy of his dictations, he does not retain a copy of his assessment notes as he does not have a doctor-patient relationship with claimants such as the applicant. As a result, although he personally reviews all of his reports for errors, he no longer has access to his notes used to dictate the report shortly after the examination.

54The case conference order issued by the Tribunal on January 20, 2023 required the respondent to produce a complete copy of Viewpoint’s file, including draft reports, referral letters, rough notes, questionnaires completed by the applicant, correspondence received from the respondent and a copy of all medical and/or clinical notes and records from each section 44 assessor’s assistant, clerk, nurse or anyone present during a section 44 assessment. The summons issued by the Tribunal on September 27, 2023 ordered Dr. Oshidari to bring to the hearing a similar list of documents. However, Dr. Oshidari denied receiving the summons and explained that the respondent had advised him of the date and time of the hearing. He also denied having access to the documents on the Viewpoint ADMS portal that he would have reviewed prior to the assessment and only last checked this portal to confirm that his report was accurate and last accessed the site around May 2023. That Mr. Pritchett was able to access his own documents on the Viewpoint site in very short order at the hearing does not equate to evidence that his access is comparable to that of Dr. Oshidari. It is also entirely possible that Dr. Oshidari simply lacks Mr. Pritchett’s familiarity and expertise in navigating the Viewpoint portal.

55Dr. Oshidari’s lack of access to these documents is however relevant to the various instances when the applicant denied making specific statements contained in the report or alleged that Dr. Oshidari interpreted her statements in a misleading manner. For instance, the applicant’s statements on the effectiveness of treatment have been at times contradictory. Although she testified at the hearing that they have been helpful in maintaining her functionality, on her own evidence, the improvement is not lasting. As she stated to Dr. Oshidari, the benefits from these sessions follow a fairly reliable pattern of expiry after a few weeks:

At the same time, she also attended physiotherapy initially twice per week and then once a week until about one or two months ago. The physiotherapist used shockwave therapy, stretching and a core exercise program. She also received 12 sessions of the acupuncture. When I confirmed with her that she received more than one and a half years of treatment, she reported yes. When I asked her how much the pain improved, she reported there is only temporary improvement regarding her pain.

56As Dr. Oshidari lacked a specific recollection of the assessment and purported to have no means of accessing the original documents that could served to refresh his memory, his evidence with respect to the details of the assessment must be accorded reduced probative weight since he could not point to anything in his notes to support his version of events regarding statements the applicant denied making. However, despite the unavailability of Dr. Oshidari’s original notes, I find that his description of the applicant’s evidence is nonetheless reliable as it conforms with similar evidence she offered to others. In the present case, the above statement is consistent with her evidence at the hearing that the pain relief only lasts until the next chiropractic or physiotherapy session four or five weeks later, much as she advised Dr. Charlton, who completed the OCF-18 for this treatment plan.

57Following the applicant’s first visit to Dr. Drakshan after the accident, Dr. Drakshan examined the applicant’s spine but only diagnosed midline tenderness. At Dr. Drakshan’s recommendation, the applicant obtained a cervical x-ray on July 27, 2020. While there was no evidence of fracture, the x-ray showed mild degenerative changes and an apparent congenital fusion of C6 and C7 vertebrae. Similarly, a lumbar spine x-ray taken on the same date showed no evidence of a fracture and no acute injury but more degenerative change and anterior osteophyte formation. A subsequent lumbar spine MRI conducted on March 2, 2021 also revealed “minimal/early degenerative changes” and that the “definite cause for symptoms not identified.”

58However, the reports by Dr. Charlton and, to some extent, Dr. Ochidari were able to offer more clarity with respect to the applicant’s symptoms. Unlike Dr. Drakshan, neither noted any ambiguity with respect to the basis of the applicant’s pain symptoms. As well, the respondent did not suggest that the applicant’s injuries did not cause her symptoms or that they did not exacerbate her pre-existing conditions. Rather, the respondent argued that the services proposed are simply not reasonable and necessary.

59In the OCF-18, Dr. Charlton wrote that the applicant reported difficulty with prolonged sitting, dressing, sleeping (due to shooting pain in her lower back), prolonged standing, walking, bending and rising from a seated position. The stated goals of the treatment plan are pain reduction, increase in strength and increased range of motion. The functional goals listed are to return the applicant to activities of daily living, modified work activities and/or pre-accident work activities.

60Dr. Ohidari testified that although he found that the applicant exhibited a decreased range of motion as noted by Dr. Charlton, he emphasized that he believed that this decrease was subjective not objective. He distinguished between an active and a passive range of motion and stated in broad terms that patients may not move body parts out of fear of pain. Range of motion is the capability of a joint to go through its complete spectrum of movements. It can be passive or active. Passive range of motion can be defined as what is achieved when an outside force, such as a therapist, causes movement of a joint. It is usually the maximum range of motion. Active range of motion is what can be achieved when opposing muscles contract and relax, resulting in joint movement.

61That said, he acknowledged that he found the applicant to suffer from a decreased range of active motion but did not test her passive range of motion. As a result, I find that Dr. Oshidari did not contradict the findings of Dr. Charlton and avoided conducting tests that may have supported Dr. Charlton’s determinations in favour of an unsupported assumption that Dr. Charlton also referred to active and therefore subjective restrictions to the applicant’s range of motion. He also acknowledged that the applicant complained of pain and that pain is by definition subjective. When asked about his understanding of the duties of the applicant’s employment, he was initially evasive in his response but ultimately referred to his report to state that he understood her work involved computer work at a desk.

62Dr. Charlton stated in the OCF-18 that the plan was intended to strengthen the applicant’s areas of weakness but the closure of gyms due to the pandemic interfered with this objective. Dr. Oshidari disagreed that the treatment plan would assist with this goal but solely on the basis that the applicant’s symptoms only temporarily improved despite the passage of one and a half years since the accident. As a result, he did not believe that another eight sessions would improve the applicant’s condition. He also disagreed that the only venue for strengthening her areas of weakness would be at Dr. Charlton’s clinic since part of the goal of rehabilitation, as contrasted with palliative care, would be to encourage a transition after a three to six months to self-directed exercise. He did clarify precisely how directed exercise and treatment under the supervision of a qualified profession were inherently inferior to self-directed exercises, likely instructed at least in part by that same professional.

63Subsection 16(1) of the Schedule describes “rehabilitation” as measures “that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.” However, Dr. Oshidari took the position that only physical or “objective” disabilities qualify as impairments. I find that this is an unduly restrictive definition as the Schedule defines an impairment more broadly as “a loss or abnormality of a psychological, physiological or anatomical structure or function.” As the applicant rightly notes, if an impairment was limited to only a fracture, muscular or neurological issues as Dr. Oshidari insisted, there would be no market for chiropractors or massage therapists.

64There is no dispute that the chiropractic treatment has provided relief to the applicant from her pain symptoms. The respondent takes the position that because this relief is temporary, the plan is not reasonable and necessary. However, there no limitation in subsection 16(1) of the Schedule that limits the activities and measures employed to treat an impairment to those that achieve only permanent relief. As the applicant noted, given that the treatments provide four or five weeks of relief from pain, the eight sessions proposed in the OCF-18 could reasonably provide approximately thirty-two to forty weeks of relief.

65In the OCF-18, Dr. Charlton also stated that the applicant “did experience a flare up which will require more care.” Dr. Oshidari testified that it would be important to understand the causality of the flare up to determine if appropriate instruction would permit treatment through exercise outside of the clinic setting. Again, he denied that more treatment would be necessary to address a flare up of symptoms primarily on the presumptions that the flare up is unlikely to have been caused by the accident and the impairment is subjective or emotional not objective. He stated that although there was no doubt that she has pain and a restricted range of motion, he opined that rather than any objective impairment, her perception of harm is a major contributing factor for these symptoms. Specifically, in report he stated,

There is no doubt she experienced discomfort and pain in the back, which radiated to the buttock area. There is no doubt there is a significant restriction in range of motion of the lumbar spine, but I find there is good potential that her perception of causing harm or the expectation of experiencing pain is a major contributing factor to this restriction.

66Dr. Oshidari suggested that the cause of the applicant’s pain may be psychological but acknowledged that he is not a psychologist. He denied that the temporary relief the applicant derived from treatment constitutes an improvement because he could not find an objective impairment in the course of his examination. While he claimed to lack any recollection of the details of the assessment, he also claimed that the applicant stated that she only achieved a few days of temporary relief from treatment, a quantification not found anywhere in his report and in direct conflict with the applicant’s own evidence at the hearing. I find that this estimate should be accorded virtually no weight as on the witness’s own evidence, he relied entirely on his report which described the relief as merely “temporary” and with no estimate of duration.

67I find that the temporary pain relief resulting from chiropractic treatment is a reasonable and necessary expense pursuant to section 15 of the Schedule.

68Significantly, the applicant’s employer offers a group benefit plan initially through Equitable Life and later through Canada Life. This plan covers chiropractic treatment to a maximum of $500.00. As a result, pursuant to subsection 47(2) of the Schedule, payment of this medical benefit is not required for that portion of an expense for which payment is reasonably available to the insured person under her insurance plan.

Interest

69Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Interest is applicable to the $622.00 for chiropractic services, proposed by Chiropractic Works in a plan dated June 28, 2022, or any balance owing following coverage by the applicant’s benefit plan.

Award

70I find that the applicant failed to establish that the respondent is liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant.

71In her application, the applicant sought an award under this provision. Under section 10, the Tribunal may grant an award of up to 50% of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. While the applicant offered submissions on the failure of the respondent to disclose requested documents from the Viewpoint site as frustratingly cavalier and characterized its treatment of the applicant as indifferent, the applicant acknowledged that this conduct did not reach the level of bad faith. The applicant also did not examine the adjuster at the hearing despite her presence throughout the proceeding and did not point to any specific log notes or other evidence that would indicate that she failed to exercise good faith in adjusting the file or improperly withheld or denied payment. The applicant also did not specifically address this remedy at all in her closing submissions.

72As a result, I find that the applicant effectively abandoned this issue at the hearing.

ORDER

73The applicant is not entitled to $3,332.11 for occupational therapy, proposed by Innovative Occupational Therapy Services in plan dated May 14, 2021.

74The applicant is entitled to $622.00 for chiropractic services, proposed by Chiropractic Works in a plan dated June 28, 2022, plus any applicable interest, subject to subsection 47(2) of the Schedule.

75The applicant is not entitled to an award under section 10 of O. Reg. 664 because the respondent unreasonably withheld or delayed payments to the applicant.