Citation: S. J. v. Industrial Alliance Auto & Home Insurance, 2023 ONLAT 22-008162/AABS

Licence Appeal Tribunal File Number: 22-008162/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:

S. J.

Applicant

and

Industrial Alliance Auto & Home Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

S. J., Applicant

Peter Kazdan, Counsel

Kiet Truong, Counsel

For the Respondent:

Trevor Crowe, Adjuster

James Brown, Counsel

HEARD: by Videoconference:

October 30, 31 and November 1-3, 2003

OVERVIEW

1The applicant, (“S.J.”) was involved in an automobile accident on January 2, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). S.J. was denied benefits by the respondent, Industrial Alliance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

BACKGROUND

2S.J. was involved in an accident on January 2, 2014. She was the front seat passenger of the car driving on the 401 east past Ottawa. She noted that they were approximately 1-2 hours away from Ottawa when the accident happened. She was not able to recall the accident details, however, she recalled that when the vehicle stopped she felt a sharp pain in her head and at the back of her neck.

3Reportedly, S.J. went to a hotel where she started experiencing blurry vision, severe headache, and sharp pain at the back of her neck within 2 to 3 hours post-accident. She called an ambulance which took her to a local hospital. She reported that due to the prolonged wait time in the hospital and her severe pain, she became exhausted and returned to the hotel. When she reached her final destination, she went to the hospital the day after the accident to seek treatment for her accident-related injuries.

4As a result of her accident-related injuries, S.J. was declared catastrophically impaired by her treating psychiatrist on October 1, 2020, and by Industrial Alliance’s psychiatrist on January 29, 2021. In the s. 44 report, the insurer assessor diagnosed S.J. with major depressive disorder, single episode, chronic, moderate to severe, with a diagnosis of persistent depressive disorder, with persistent major depressive episode, moderate to severe. There was an additional diagnosis of anxiety disorder; pain disorder associated with both psychological factors and a general medical condition; as well as a diagnosis of somatic symptom disorder, with predominant pain, persistent, moderate. The insurer assessor concluded that S.J.’s mental impairments attained the threshold for catastrophic impairment as defined by criterion (f) of s. 3.(2) of the Schedule. In other words, S.J. suffered a marked impairment in three or more areas of function that precludes useful functioning due to mental and behavioural disorders.

MOTION

5On November 7, 2023, S.J. filed a motion seeking an order protecting her confidentiality and identity in this proceeding. She further sought an order to protect the sensitive information contained herein. The grounds for the Motion are based on the need to protect S.J.’s identity from ongoing harassment by various non-parties, and the sensitive information requires a higher degree of protection from disclosure to ensure S.J.’s safety. S.J. makes her motion request pursuant to Rules 2, 3 and 13.1 of the Licence Appeal Tribunal Rules (2023) (the “Rules”).

6The respondent consents to the relief requested by S.J.

7Pursuant to Rule 13.1, the Tribunal may limit access to a record of proceedings or, during a proceeding, make an order at the request of one of the parties or on its own motion, limiting public access to all or part of any document or record or hearing to protect confidentiality of personal or sensitive information, as it considers appropriate in relation to:

a. Matters involving public security;

b. Intimate financial or personal matters;

c. Other matters where, having regard to the circumstances, the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that the hearings, documents or records be open to the public.

8Accordingly, I grant the motion to have the confidentiality and identity of S.J. protected in these proceedings and to protect the sensitive information contained within the decision. Therefore, I will use initials when referring to her throughout the decision and protect any sensitive information contained within.

ISSUES

9The issues in dispute are:

i. Is S.J. entitled to a non-earner benefit (“NEB”) of $185.00 per week from August 1, 2014 to date and ongoing?

ii. Is S.J. entitled to attendant care benefits (“ACB”) in the amount of $6,000.00 per month from January 2, 2014 to date and ongoing?

iii. Is S.J. entitled to $200.00 for medical services, proposed by Dr. Azadian in a treatment plan (OCF-18) submitted on June 18, 2021?

iv. Is S.J. entitled to $200.00 for medical services, proposed by Dr. Lakhani in an OCF-18 submitted on June 18, 2021?

v. Is S.J. entitled to $5,050.25 for medical services, proposed by Doctor’s Rehabilitation Clinic in an OCF-18 submitted on July 12, 2022?

vi. Is S.J. entitled to $1,958.25 for an attendant care needs assessment, proposed by ASA Rehab in an OCF-18 dated August 26, 2020?

vii. Is S.J. entitled to $1,958.25 for an attendant care needs assessment, proposed by ASA Rehab in an OCF-18 submitted June 14, 2022?

viii. Is S.J. entitled to $5,000.00 for a psychiatric assessment, proposed by ASA Rehab in an OCF-18 submitted June 14, 2022?

ix. Is S.J. entitled to prescription expenses submitted by IDA Pharmacy in the amounts and on the dates as follows:

(a) $715.60 on June 18, 2021;

(b) $652.00 on January 13, 2022;

(c) $896.80 on January 24, 2022;

(d) $889.94 on January 26, 2022;

(e) $569.21 on January 28, 2022;

(f) $247.83 on January 31, 2022;

(g) $73.26 on February 4, 2022;

(h) $564.37 on June 13, 2022; and

(i) $569.21 on June 14, 2022?

x. Is S.J. entitled to a housekeeping and home maintenance benefit in the amount of $100.00 per week from January 2, 2014 to date and ongoing?

xi. Is Industrial Alliances liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to S.J.?

xii. Is S.J. entitled to interest on any overdue payment of benefits?

RESULT

10I find that S.J. is entitled to the following benefits:

i. NEB for the period of August 1, 2014 to date and ongoing;

ii. ACB in the amount of $1,081.40 for the period of January 14, 2014 to date and ongoing;

iii. OCF-18 dated June 14, 2022 in the amount of $1,985.25 for an attendant care assessment;

iv. OCF-18 submitted June 14, 2022 in the amount of $2,000.00 for a psychiatric assessment; and

v. Interest is payable on the above in accordance with s. 51 of the Schedule.

11S.J. is not entitled to the remaining benefits in dispute. No interest or an award are payable.

12S.J. is entitled to an award, interest is payable.

ANALYSIS

NEB

13S.J. is entitled to NEBs for the period of August 1, 2014 to date and ongoing.

14The insurer shall pay a NEB to an insured if they suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. It is well-settled that Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), provides the framework for the NEB analysis into whether an insured suffers a complete inability to carry on a normal life. Heath requires a comparison of activities and circumstances pre-and post-accident over a reasonable period of time, allowing for greater weight to be assigned to activities that an insured identifies as important. To meet the test, an insured must be continuously prevented from engaging in substantially all of their pre-accident activities and, where pain is present, it should practically prevent them from engaging in those activities.

15The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.

16S.J. submits that as a result of the accident, she suffered physical and psychological impairments that have prevented her from engaging in substantially all of her pre-accident activities. In support of her claims, she relies on the following evidence, including, but not limited to:

i. Disability Certificate (“OCF-3”) dated February 10, 2014 – sprain and strain injuries, radiculopathy; cervicogenic headaches;

ii. X-ray of chest dated September 3, 2013 – normal results;

iii. CT Scan of head dated January 9, 2014 – normal results;

iv. X-ray of cervical spine, thoracic spine and lumbar spine – no abnormality;

v. MRI of thoracic and cervical spine dated April 24, 2014 – normal results;

vi. X-ray of left foot dated April 25, 2015 – no fracture;

vii. In-home assessment report and Form 1 dated May 9, 2014;

viii. Psychological assessment report dated April 30, 2014; and

ix. Chronic Pain report dated March 31, 2017.

17In the March 31, 2017 chronic pain report, Dr. Lamb, chronic pain specialist, diagnosed S.J. with chronic post-traumatic pain syndrome associated with headaches, neck pain, right shoulder pain as a direct result of the accident. He noted that her injuries do not allow her to fully engage in her activities of daily living. Dr. Lamb noted various barriers to recovery, those being right shoulder pain; abnormal sleep patterns; vehicle-related anxiety and depression; and avoiding activities due to pain. Dr. Lamb recommended a multidisciplinary chronic pain program in order to avoid permanent chronic pain symptoms.

18S.J. testified that she worked as a dental assistant prior to the accident, with a goal of attending school to become a dental hygienist. She also testified that prior to the accident, she played volleyball, attended the gym, socialized frequently, and was very active. Post-accident, she was no longer able to do her dental assistant job due to pain, and she was no longer able to participate in any sport or social activities due to pain. In addition, she was not able to attend any school programs. S.J. did not discuss the specifics of which activities she valued most or the time she spent doing the activities.

19Industrial Alliance argues that S.J. does not suffer a complete inability to carry on a normal life. It relies on several s. 44 reports: a June 17, 2014 functional capacity evaluation and chiropractic report from Dr. Pardisnia; a July 8, 2014 psychological report from Dr. McCuthcheon; an October 17, 2014 report of Ms. Kulasingam, occupational therapist; an August 20, 2018 psychological report from Dr. Karp; a July 16, 2019 general physician report from Dr. [H]; a January 29, 2021 orthopaedic report from Dr. Yee; a March 21, 2017 chiropractic report from Dr. Chagha; and a March 25, 2020 psychology report of Dr. Syed.

20Dr. Pardisnia in both his functional capacity and chiropractic reports, specifically commented that S.J. does not suffer a complete inability to carry on a normal life. Notably, Dr. Pardisnia does not provide a formal diagnosis in his chiropractic report and stated that the purpose of the assessment was “determining the necessity of a course of proposed physical rehabilitation.” Neither of these factors specifically address S.J.’s NEB claim. Further, none of the other s. 44 reports address whether S.J. suffers a complete inability to carry on a normal life.

21I find S.J.’s medical evidence persuasive, in that Dr. Lamb’s report speaks to the issue of chronic pain, its impact on her functional ability, and that her pain affects her ability to “independently resume her activities”, in reference to her activities of daily living. There are significant limitations noted, both physically and psychologically, and there is an increased dependence on pain medication, post-accident, that was non-existent prior to the accident. Dr. Lamb’s report also notes that she continues to receive treatment and relies on family to assist with her activities of daily living and personal care tasks, ie; showering/hair washing and grooming. Dr. Lamb went on to note that S.J. is very sedentary due to her fear of pain, which is noted in Dr. Pardisnia’s report: that she is pain avoidant.

22After considering her pre-accident level of activity, when she was working and was in the process of returning to school to further her professional career, as well as active physically and socially, I find that S.J. has demonstrated that she suffers a complete inability to carry on a normal life as a result of the accident. The medical evidence and her testimony support that she is practically prevented from engaging in substantially all of her pre-accident activities, such as housekeeping and meal preparation tasks, as a result of accident-related pain.

23I find that the applicant is entitled to NEBs for the period of August 1, 2014 to date and ongoing.

ACB

24I find that S.J. is entitled to receive ACBs in the amount of $1,081.40 per month, for the period of January 2, 2014 to January 1, 2023.

25Sections 42(1) and (2) of the Schedule set out the requirements to apply for an ACB and identify the documents required to apply for the ACB. Section 42(1) states the application for an ACB must be in the form of and contain the information required to be provided in a document called an Assessment of Attendant Care Needs (Form 1). The Form 1 must be prepared and submitted to the respondent by an occupational therapist or a registered nurse. Section 19(2) states that the amount of an attendant care benefit is determined in accordance with the version of the Form 1 that is required to be submitted under s. 42. In all cases, the onus is on R.P. to establish entitlement to ACBs on a balance of probabilities.

26S.J. is claiming ACBs in the amount of $6,000.00 per month for the period of January 2, 2014 to date and ongoing for services provided by family members and personal support workers (“PSWs”).

27In support of her claim, S.J. relies on the testimony and report of Ms. Majidinamyne, occupational therapist, as well as family members. Ms. Majidinamyne recommended $8,318.00 per month in a November 13, 2020 Form 1 and $8,336.27 in a June 4, 2022 Form 1; this amount far exceeds the $6,000.00 per month allowable under the Schedule. S.J. also relies on an April 27, 2014 Form 1 completed by Ms. Golmohammadi, occupational therapist. Ms. Golmohammadi recommended the total monthly benefit as $1,081.40 in a May 9, 2014 report, noting that S.J. required assistance with dressing/undressing; assistance to wash, blow dry and style her hair as required; feeding and/or preparing food, required assistance; as did hygiene activities. I note that S.J. did not require the need for basic supervisory care. This level of care was also testified to by a family member.

28Industrial Alliance argues that Ms. Majidinamyne’s report and OCF-18 do not support that S.J. is entitled to ACBs. In this regard, it points to Part 8 (Activity Limitations) in the August 26, 2020 OCF-18, where Ms. Majidinamyne indicates “Unknown” in response to whether S.J.’s injuries affect her ability to carry out her tasks of employment or her activities of normal life. Further, it submits that the August 26, 2020 Form 1 recommends 19 hours of supervision a day for basic supervisory care, however, S.J. reported that she had no suicidal ideation, and there was no other evidence to support that she required almost 24 hour care.

29I note that in her report, Ms. Majidinamyne did not review any of the records of Dr. Lamb, Dr. Mikhail, or Dr. Lakani. I further note that none of the s. 44 reports were provided to Ms. Majidinamyne for her consideration in the completion of her report. I find it is problematic to rely on a report that does not consider additional medical documentation that may help to provide a fulsome picture of S.J.’s functional ability and the appropriate level of attendant care required.

30Section 3(7)(e) provides further guidance on when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person. Further, s. 3(8) states that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

31While S.J. directs me to the evidence of the assistance that was provided by her family members, I am not directed to proof that the cost of any of these services has been incurred. Further, the evidence presented by S.J. does not establish that any of the service providers have suffered an economic loss as a result of providing attendant care services. Lastly, there is no evidence that her family members provided the services in the course of their employment.

32Despite this, the records of the PSW’s (names withheld for confidentiality) show that in an OCF-6 dated May 19, 2023, attendant care services were provided by three PSW’s for the period of May 17, 2014 to May 17, 2023, totaling $362.880.00. The invoice itemizes the various services that were provided over the course of nine years. I find the invoice for the PSWs to be persuasive because it provides a full detail of the services provided, the period for which the services were provided, and the hourly rate charged for the period the services were provided. The services provided were in line with what Ms. Golmohammadi noted in her report.

33Industrial Alliance did not put forth any evidence or argument that refutes the OCF-6 of the PSWs, nor did it disagree that the OCF-6 establishes that the services were incurred in the course of duty of the PSW’s.

34In accordance with s. 19 of the Schedule, ACBs shall be paid for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant. I find that the threshold has been met by S.J. and that the incurred ACBs are payable. Further, I find her consistent and ongoing reporting of the level of care that she requires to engage in her self-care routines, demonstrates that, nine years post-accident, there is still a significant level of care required.

35However, I disagree with Ms. Majidinamyne’s recommendation in her Form 1s, as the amount is excessive, and there is no evidence that S.J. requires a level of care at or near the allowable maximum for individuals deemed catastrophically impaired under the Schedule. S.J. reported to Ms. Golmohammadi about her ongoing pain issues, and the impact it has on her ability to engage in her self-care and activities of daily living. While this report was completed not long after the accident, the pain complaints and limitations have not changed to date upon review of the medical evidence. S.J. reported ongoing functional limitations as it pertains to her neck, back, arm and head, which has been noted in both her own assessor’s reports as well as the s. 44 reports. Accordingly, I agree with Ms. Golmohammadi’s April 27, 2014 report and May 9, 2014 Form 1. The subsequent Form 1 rates are excessive and not payable above the $6,000.00 limit set out in the Schedule. There is no evidence that supports S.J. requires a level of care at the maximum rate. Accordingly, I find that the recommended monthly rate for ACBs in the amount of $1,081.40 for the period claimed is reasonable and necessary.

Balance of the OCF-18s submitted on June 18, 2021

36I find that the balance of the June 18, 2021 OCF-18s are not payable.

37In the June 15, 2021 OCF-18s, both Dr. Lakhani and Dr. Azadian prescribe medications. However, at Part 6, under the Injury and Sequelae Information section, a description of S.J.’s injuries are listed, however no code is provided. Under Part 12 of the Proposed Goods or Services, medications are listed, including the dosage and frequency, however, the required cost information (both estimated and projected) is not completed. Under Part 13 of the Signature of the Insurer, the Adjuster has signed the OCF-18 and indicated “Do not approve”, with a note that the OCF-18 is incomplete. In a June 29, 2021 denial letter, the reasons for the refusal is noted to be that Part 3, Part 6, Part 11 and Part 12 of the OCF-18 are incomplete. Accordingly, the letter goes on to note that the cost of form completion is not payable until the OCF-18s are completed.

38S.J. submits that the outstanding medication expenses are reasonable and necessary, as a result of her ongoing pain issues. She relies on the list of prescription expenses in support of her claim.

39In a letter dated January 25, 2017, Industrial Alliance informed S.J. that a claim for medication in the amount of $409.99 was not payable due to s. 33 non-compliance. The letter advised S.J. to submit any future medication expenses through an OCF-18 from her family physician.

40S.J. argues that under s. 38(2)(c)(i) of the Schedule, an applicant is not required to submit a treatment and assessment plan for expenses that are reasonable and necessary as a result of the impairment sustained by the insured person for drugs prescribed by a regulated health professional. However, this is an incorrect interpretation, as s. 38(2)(c)(i) does not say that a treatment plan is not required, it provides that an insurer is not liable to pay an expense that is incurred before a treatment plan is submitted, unless the (medication) expense is reasonable and necessary as a result of the impairment sustained.

41Industrial Alliance denied the medication expenses in letters dated February 24, 2017, March 3, 2017, and March 6, 2017. S.J.’s family physician complied with Industrial Alliances request and submitted the expenses through an OCF-18. In a letter dated March 8, 2017, the adjuster questioned whether the medication S.J. was taking was related to the accident, and that the OCF-18 completed by the family physician was incomplete and would not be considered. Industrial Alliance maintained its denial of the medications in letters dated June 3, 2020, May 7, 2021, July 2, 2021 and January 28, 2022.

42Industrial Alliance submits that due to non-compliance with several s. 33 requests (for original prescription receipts), the medication expenses are not payable. It further submits that the information was provided in 2022 (for requests made as early as 2018) and is also therefore not payable. In addition, it submits that the OCF-18s from Dr. Lakhani and Dr. Azadian were incomplete and would not be payable until the treatment plans were completed properly and in their entirety. Additional OCF-18s for the period of October 7, 2019 through April 17, 2020 were also incomplete, and required the original prescriptions receipts, as photocopies of receipts were not acceptable.

43I find that S.J. has not met her burden to demonstrate that the medication expenses are payable. First, there was no explanation provided as to why requests in 2018 for original receipts for prescriptions were not provided until 2022. This is an excessive and unreasonable delay. As early as 2021, Industrial Alliance requested further information from Dr. Azadian and Dr. Lakhani, which once received, it would reconsider its determination of the medication expenses. I note that in a June 21, 2022 email correspondence, counsel for S.J. wrote to the Adjuster in response to the s. 33 requests. Counsel’s request was that if the information was still reasonably required to assist the Insurer in determining entitlement for benefits, that the number of questions for the doctors be reduced to “essential and necessary” ones to be able to obtain a report.

44In addition, I disagree with S.J.’s position on the s. 33 issue as it relates to the incomplete OCF-18s. The request was made as a result of incomplete OCF-18s on behalf of S.J.’s treatment providers. Incomplete OCF-18s are not payable pursuant to the Schedule. Industrial Alliance rightly requested that the OCF-18s be completed in order for the recommendation for medications to be properly considered. In addition, as it required original copies of the prescription expenses, for validation purposes, this is not an unreasonable request. In the various explanation of benefits correspondence, Industrial Alliance’s position was clearly explained, and, once the requests were complied with, the next steps were also provided in the correspondence. There is also no requirement on Industrial Alliance to meet a standard of “essential and necessary”. The Schedule provides for a reasonable and necessary standard, which Industrial Alliance’s requests satisfy. I find that Industrial Alliance’s explanation of benefits were clear, and the requests for additional information/OCF-18 completion were reasonable.

45Section 38(3) of the Schedule requires a treatment plan to be signed by the applicant, be completed and signed by a regulated health professional and include a statement from a health practitioner that in his opinion, the goods and services and their cost described in the treatment plan are reasonable and necessary. This allows an insurer to assess the reasonableness and necessity of the treatment plan before approving or denying it. If the treatment plan does not comply with s. 38(3), the benefit is not payable.

46No benefits are payable, where the OCF-18 is not completed, or, where an insured has failed to comply with a request for information that is reasonably required under s. 33 of the Schedule. Further, having provided no reasonable explanation for the extensive delay in providing the information requested, S.J. has failed to establish on a balance of probabilities, that the medication expenses are reasonable and necessary or that there was a reasonable explanation for the delay in providing the requested information.

OCF-18 in the amount of $5,050.25 for chiropractic treatment dated July 7, 2022

47Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. S.J. bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary. To do so, S.J. should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

48For the reasons set out below, I find that S.J. has not demonstrated on a balance of probabilities that the disputed OCF-18 is reasonable and necessary.

49The OCF-18 was completed by Dr. Nouraliei, who recommended further chiropractic treatment. S.J. did not specifically address the issue in dispute, other than to refer to different exhibits in support of her claim for treatment.

50Industrial Alliance relied on the September 2, 2022 s. 44 chiropractic report of Dr. Dimakis, who noted on physical examination that there is no evidence of any objective neurological or radicular findings related to the accident. Dr. Dimakis opined that S.J. does not have any overt functional limitations or substantial physical restrictions from a chiropractic perspective. Dr. Dimakis noted that S.J. has residual symptomatology related to myofascial soft tissue injury, predominantly affecting the right parascapular region. Dr. Dimakis went on to opine that there is no clinical indication for any further treatment or rehabilitation services as proposed in the OCF-18. Dr. Dimakis concluded that from an objective chiropractic perspective, S.J. has reached maximum therapeutic benefit.

51I find S.J. has not demonstrated entitlement to the treatment requested in the July 7, 2022 OCF-18. First, outside of the OCF-18, I find the evidence she relies on in support to be unpersuasive. Second, Dr. Dimakis conducted an interview with S.J., where she reports that she receives multimodal treatment from Doctor’s Rehab Clinic Inc. at a frequency of twice a week but was unable to provide an overall percentage of improvement to date, eight years since the accident. The fact that the treatment requested has not been shown to have helped the applicant supports the respondent’s position that further treatment is not reasonable and necessary. S.J. further reported to Dr. Dimakis that she receives weekly pain management treatment from Dr. [L], which includes injections.

52It is difficult to find ongoing treatment is required where the threshold for reasonable and necessary has not been met. While the OCF-18 sets outs the goals of treatment, there are no submissions that explicitly address two of the three prongs of the reasonable and necessary test. She has not identified how the goals would be met to a reasonable degree or that the overall costs of achieving same are reasonable. None of these branches of the test were discussed, and therefore, her claim for the July 7, 2022 OCF-18 is not successful. I find that the applicant has not demonstrated entitlement to this OCF-18.

OCF-18 dated August 26, 2020 in the amount of $1,958.25 for an attendant care assessment

53S.J. is not entitled to the August 26, 2020 OCF-18 in the amount of $1,958.25 for an attendant care assessment.

54S.J. did not make specific arguments or submissions on the OCF-18, however, her position is that the wrong legislation was relied on in the denial. There was no elaboration on this point. Upon review of the September 1, 2020 denial, the included legislation appears to be the Statutory Accident Benefits Schedule - Effective September 1, 2010. This is the correct legislation that was in place at the time of the accident.

55Industrial Alliance argues that the assessment was incurred prior to the submission of the OCF-18. Its position is that this OCF-18 is not payable because Ms. Majidinamyne conducted the assessment prior to submitting the OCF-18 for same.

56I agree.

57Ms. Majidinamyne provided an attendant care assessment report on November 13, 2020, and the OCF-18 is dated August 26, 2020. I note that the date of the assessment and the date of the OCF-18 are the same. I am not directed to any evidence or testimony that confirms that the assessment took place before the OCF-18 was completed. The evidence suggests that the results of the assessment, were likely relied on in order to properly complete the OCF-18.

58Section 38(2) of the Schedule sets out that an insurer is not liable to pay a medical or rehabilitation benefit, or an assessment or examination which was incurred by an insured person prior to the insured person submitting a treatment plan which satisfies the requirements set out within s. 38(3). There are four exceptions noted within s. 38(2).

59I find that the evidence supports that the assessment was incurred prior to the submission of the OCF-18 to Industrial Alliance. S.J. did not make any submissions regarding whether the exceptions listed in s. 38(2) apply, and I do not find any of those exceptions are applicable in this case. While I am sympathetic that S.J. incurred the expense, I find that the requirements set out in s. 38(2) are clear. Consequently, due to S.J.’s non-compliance with s. 38(2), the OCF-18 is not payable.

OCF-18 dated June 14, 2022 in the amount of $1,985.25 for an attendant care assessment

60S.J. submits that the OCF-18 was approved but has not been paid to date.

61Industrial Alliance confirmed that this OCF-18 was approved. Its position is that the occupational therapist has not provided an invoice.

62The parties agreed to follow up on this issue so that it can be resolved.

63I make no further comment on the issue and leave it to the parties to follow up as per their discussion.

OCF-18 submitted June 14, 2022 in the amount of $5,000.00 for a psychiatric assessment

64Section 25(1)(5) of the Schedule specifies that the insurer is not obligated to pay more than a total of $2,000.00 in respect of fees and expenses for “conducting any one assessment or examination” and for preparing reports in connection with it.

65The amount that S.J. seeks for the psychiatric assessment, even as it pertains to catastrophic impairment, far exceeds the allowable limit under the Schedule. There is no exception to the $2,000.00 limit, therefore, that is the maximum that Industrial Alliance would be obligated to fund towards S.J.’s claim.

66Industrial Alliance does not argue that the psychiatric assessment is not reasonable and necessary, only that the amount payable is subject to the $2,000.00 limit under the Schedule.

67Accordingly, I find that S.J. is entitled to partial payment of the OCF-18, in the amount of $2,000.00.

Housekeeping and home maintenance benefit in the amount of $100.00 per week from January 2, 2014 to date and ongoing

68S.J. is not entitled to the housekeeping and home maintenance benefit for the period claimed.

69Housekeeping benefits are available to catastrophically injured persons who suffer a substantial inability to perform the housekeeping tasks that they did prior to the accident. Housekeeping benefits are capped at the rate of $100.00 per week, pursuant to section 23 of the Schedule. Section 45(6) of the Schedule provides that S.J. is entitled to payment of all housekeeping expenses incurred before the date of the determination of catastrophic impairment, that being, January 29, 2021.

70Relevant to this dispute, section 3(7)(e)(iii) of the Schedule provides that expenses in respect of services referred to in the Schedule are not incurred unless: the person who provided the goods or services did so in the course of their employment, occupation or profession in which they are ordinarily engaged in or sustained an economic loss as a result of providing the services.

71Section 3(8) provides me with the authority to deem the expenses to have been incurred if I find that the expenses were not incurred because Industrial Alliance unreasonably delayed or withheld payment.

72S.J. relies on various evidence in support of her claim for housekeeping. This evidence includes a May 19, 2023 OCF-6 for housekeeping services provided by family members; Molly Maid; VP Cleaning Services Corp.; and PSW Ms. [S]. Industrial Alliance partially paid for services provided by Molly Maid, VP Cleaning Services Corp. and Ms. [S]. In addition to the OCF-6, S.J. relies on a housekeeping “invoice” from her family members which details the time period (February 1, 2014 to February 17, 2023); weekly amount of time (more than seven hours a week); services provided (vacuuming, dusting, sweeping/mopping/garbage removal/ laundry/ironing/meal preparations/cooking/ washing dishes/cleaning various areas of the home/grocery shopping/grass cutting/snow clearing); and the total allegedly incurred ($46,800.00).

73There is no evidence before me that provides a breakdown of when the services were provided, who specifically performed what services, or for what duration of time any particular service was performed for. Further, there is no evidence on whether her family members suffered any economic loss as a result of performing any or all of the housekeeping services.

74Notwithstanding her catastrophic impairment, I find that S.J. is not entitled to the housekeeping expense for the period claimed. There is no evidence that Industrial Alliance unreasonably withheld payment of the expense. Lastly, I find the invoices of the family members are not helpful, because of the lack of a detailed explanation of the services provided. I do not find the evidence persuasive or that it meets the requirements of proof of incurred under the provisions of the Schedule.

Interest

75Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

76Interest is payable on the NEB for the period of August 1, 2014 to date and ongoing; ACB for the period of January 14, 2014 to date and ongoing; June 14, 2022 OCF-18 for an attendant care assessment (previously approved); and the June 14, 2022 OCF-18 for the partially approved psychiatric assessment.

Award

77S.J. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

78S.J. submits that Industrial Alliance failed to properly adjust her file, which led to it unreasonably withholding and delaying the payment of benefits. Her position is that Industrial Alliance engaged in behaviour, which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

79Pursuant to section 32(10) of the SABS, where the insurer is notified of the intention to make an application after seven days, the insurer may delay paying the benefit until the later of, 45 days after the day the insurer received the completed and signed application; or 10 business days after the day the applicant complies with any request made by the insurer under section 33.

80Within 10 business days after an insurer receives a claim for NEB, an OCF-1, and an OCF-3, the insurer is required by s. 36(4)(a), (b), and (c) of the Schedule to:

a. pay the specified benefit;

b. give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

c. send a request to the applicant under subsection 33 (1) or (2).

81Furthermore, section 36(6) details the consequences for an insurer that does not comply with s. 36(4)(b). It holds that an insurer “shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer gives a notice described in subsection (4)(b), on the day the insurer gives the notice.”

82S.J. argues that Industrial Alliance failed to adhere to the timelines in accordance with the Schedule. As noted above, Industrial Alliance was required to pay benefits, including the NEB, within 10 days after receipt of the requested information under s. 33 of the schedule.

83Under s. 33, an applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

a. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit;

b. A statutory declaration as to the circumstances that gave rise to the application for a benefit;

c. The number, street and municipality where the applicant ordinarily resides; and

d. Proof of the applicant’s identity.

77S.J. points out that her OCF-1 was submitted on January 31, 2014 and an OCF-3 was submitted on February 10, 2014, which indicated that she suffered a complete inability to carry on a normal life as a result of the accident. In accordance with s. 12(4) of the Schedule, Industrial Alliance is not required to pay an NEB for the first 26 weeks after the onset of the complete inability to carry on a normal life, which would be August 2014. S.J. has not been paid any NEB to date. Notably, S.J. was declared catastrophically impaired by her treating physician, Dr. Azadian on October 1, 2020 and by the s. 44 assessor, Dr. Gnam on January 29, 2021.

78Industrial Alliance responded to S.J.’s claim for an NEB in a letter dated July 10, 2014, advising that she did not qualify for an NEB as she did not suffer a complete inability to carry on a normal life as a result of the accident. It also advised that she did not require an ACB from a psychological perspective. This determination was made based on a s. 44 psychological insurer examination that was conducted on July 8, 2014 in order to address whether an OCF-18 submitted by S.J.’s treating psychologist was reasonable and necessary. S.J. submits that she was never informed by Industrial Alliance that the insurer examination was to address her entitlement to specified benefits.

79A similar letter, dated July 22, 2014, was sent to S.J. advising that a s. 44 chiropractic report from Dr. Pardisnia indicated that she did not suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Notably, the purpose of Dr. Pardisnia’s report was to address an OCF-18 submitted by S.J.’s treating chiropractor. S.J. alleges that she was never informed that she was attending the insurer examination to address NEB entitlement.

80S.J. submits that Industrial Alliance failed to comply with the requirements under s. 36(4) of the Schedule to provide sufficient notice of denial of the NEB. She further submits that the July 22, 20214 denial letter did not properly explain the medical and other reasons and did not advise of her right to appeal, pursuant to s. 54 of the Schedule. Section 54 sets out that if an insurer refuses to pay a benefit or reduces the amount of a benefit that a person is receiving, the insurer shall provide the person with a written notice advising the person of his or her right to dispute the refusal or reduction.

81Industrial Alliance made no submissions in response to S.J.’s award submissions, therefore, I have no argument to consider from it.

82Upon review of the evidence, and S.J.’s submissions, I find that Industrial Alliance has unreasonably withheld and delayed payment of the NEB.

Quantum of the section 10 award

77In considering the duration of time that has passed that S.J. has not received any payment for entitlement to the specified benefits, I find that Industrial Alliance’s position has been inflexible and unyielding. The NEB should have been paid at the earliest date of entitlement, or at the very least, a proper denial should have been provided at the conclusion of properly schedule s. 44 insurer examinations.

78S.J. was not informed that any s. 44 insurer examination she attended was for the purpose of determining her entitlement to specified benefits, which an insurer is required to do under s. 44 of the Schedule. Due to this non-compliance on the part of Industrial Alliance, it improperly maintained denials of benefits that S.J. was entitled to. This is the definition of an unreasonable withholding or delay of payment of benefits.

79While S.J. seeks an award at the “highest end of the spectrum”, I do not find a 50% award is appropriate. Industrial Alliance did delay in paying benefits, however, S.J. also caused delay in providing some of the reasonably required documents that were provided as late as 2022 (having been requested in 2018) without a reasonable explanation. While I appreciate that there was previous counsel for S.J., which may have contributed to some of the delays in providing documents in accordance with s. 33, I find that both sides take some responsibility in the delay of payment. However, I agree with S.J. that Industrial Alliance has not properly adjusted its file, which has resulted in S.J. not receiving benefits which she is entitled to, and that I have found she is entitled to.

80For the reasons provided, I find that an award in the amount of five percent of the amount of NEB benefits owed is appropriate because Industrial Alliance failed to properly adjust its file and pay out the benefit that was owing in accordance with s. 12 of the Schedule. Accordingly, I find that S.J. is entitled to an award of $4,578.75 plus interest in accordance with s. 10 of O. Reg. 664.

ORDER

81I find that S.J. is entitled to the following:

a. NEB in the amount of $185 per week for the period of August 1, 2014 to date and ongoing;

b. ACB in the amount of $1,081.40 for the period of January 14, 2014 to date and ongoing;

c. OCF-18 dated June 14, 2022 in the amount of $1,985.25 for an attendant care assessment;

d. OCF-18 submitted June 14, 2022 in the amount of $2,000.00 for a psychiatric assessment; and

e. Interest is payable on the above in accordance with s. 51 of the Schedule.

82S.J. is not entitled to the remaining benefits in dispute. No interest is payable on the remaining benefits.

83S.J. is entitled to an award of $4,578.75 plus interest in accordance with s. 10 of O. Reg. 664.