Citation: Omoniyi v. Co-operators General Insurance Company, 2023 ONLAT 20-014372/AABS

Licence Appeal Tribunal File Number: 20-014372/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:

Abiodun Omoniyi

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATORS:

Tyler Moore and Deborah Neilson

APPEARANCES:

For the Applicant:

Abiodun Omoniyi, Applicant

Andrew Franzke, Counsel

Nidhi Vinayak, Counsel

For the Respondent:

Kathleen O’Hara, Counsel

Court Reporter:

Jo Velimirovic

Heard by Videoconference:

July 4, 5, 6, 2022

1The applicant was involved in automobile accidents on March 11, 2019 and December 17, 2019. She was the seat-belted driver on both occasions. The applicant submits that, as a result of the March 11, 2019 accident, she sustained sprain and strains to her back and aggravation of her right hip osteoarthritis. Further, she submits that, as a result of the December 17, 2019 accident, she fractured her left third digit, and injured her left neck, shoulder, and back.

2The applicant sought benefits related to both accidents pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). She was denied certain benefits by the respondent, after which she applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY PROCEDURAL ISSUES

3We were required to address two procedural matters during the hearing as follows:

a. Whether the applicant could file her supplemental brief; and

b. Whether the applicant could file the curriculum vitae (“CV”) of Dr. Steiner and medical documents?

Applicant’s Supplemental Brief

4The applicant’s supplemental brief was first served the day before the hearing. The respondent took issue with the untimeliness of the brief because there were documents that they had not seen until that time. The applicant submitted that the respondent would have already had everything contained in the supplemental brief except for the employment file from KW Habilitation. The respondent advised that the only documents from the supplemental brief that it did not have and to which it objected being filed with the Tribunal were the curricula vitae (“CV”) and acknowledgements of expert’s duty forms (“AED”) for Dr. Allen, chiropractor, and Remik Zakrzewski, occupational therapist.

5The applicant submitted that the Tribunal has the discretion to admit documents under the Statutory Powers Procedure Act (“SPPA”). The applicant submitted that Mr. Zakrzrewski had also opined with respect to the attendant care benefits at issue. His CV should be part of his expert report. The respondent submitted that it would be prejudiced if the documents were admitted at such a late date, and that the applicant had not taken steps to comply with previous Tribunal orders.

6Given that the applicant failed to comply with the Tribunal’s motion Order dated March 22, 2022 to serve documents he intended to rely on by April 29, 2022 and file them by June 24, 2022, there is a presumption that the respondent is prejudiced. However, we found that the prejudice to the applicant in not being able to prove the expertise of her witnesses and that they were not biased outweighed the prejudice to the respondent. Further, when asked what steps would cure the prejudice against the respondent, the respondent advised that it did not require any curative measures. Accordingly, we allowed the applicant’s supplemental document brief to be filed given its relevancy.

CV and Medical Documents

7The applicant sought a motion order just before making his closing submissions. The motion related to the admission of the CV and AED of Dr. Steiner, and three pages of what she submitted were new medical records. The respondent submitted these new records were in fact a script for physiotherapy and two business cards.

8The applicant’s representative submitted that these documents confirmed that the applicant had right hip osteoarthritis that was documented by a healthcare provider before her first accident. The applicant testified that she saw a physiotherapist before the first accident and her representative conceded that it was an unfortunate oversight that the documents were not submitted earlier.

9The respondent objected as it had made a number of requests for pre-accident medical records prior to the hearing that were ignored by the applicant. The respondent submitted that applicant’s counsel was able to obtain the script for physiotherapy directly from the applicant almost immediately.

10The applicant submitted that not admitting the documents would be highly prejudicial to her. In her view, procedural fairness and reasonableness required that the documents be admitted as they were relevant to the issue of the Minor Injury Guideline’s applicability. For those reasons, she argued that the Tribunal should exercise its discretion and allow the documents into evidence.

11The respondent submitted that the applicant was in violation of LAT Rule 9 regarding the production of documents because she did not provide the requested medical documents as ordered by the Tribunal.¹ The applicant was previously granted a hearing adjournment because she was not ready to proceed, and she violated the Tribunal Order dated April 29, 2021, which stated that all documents were to be disclosed to the respondent by January 29, 2022. The respondent submitted that as a result, the applicant should not be allowed to introduce new evidence after all witnesses had already testified. In addition, the respondent did not summons any witnesses to provide context to the records in question, and the respondent would not have time to review the document or be able to send it to an IE assessor for an updated opinion. The applicant also failed to provide compelling reasons as to why the document was not submitted earlier. Simply not turning her mind to it until such a late stage is not a compelling reason to admit the documents.

12Nevertheless, with respect to the CV and AOE of Dr. Steiner, the respondent submitted that these documents would not have changed their hearing approach and they should go to weight, along with the conduct of the parties throughout the proceeding.

13The applicant’s motion was denied for the following reasons. We agreed with the respondent and found that the applicant’s reasons for such a late submission were not persuasive. The case-law relied on by the applicant in support of the motion did not address the introduction of new evidence during a hearing and so it had little relevance.² The applicant was also able to produce the documents within minutes to hours of when her representative requested them, and it was not clear why they could not have been produced prior to the deadline set out in the April 29 , 2022 motion Order.

14We found that allowing the documents would be highly prejudicial to the respondent. Although we allowed the CVs and AEDs of Dr. Allen and Dr. Steiner to be filed, the applicant’s attempt to then file new documents in the middle of a hearing shows a disrespect for the Tribunal and its processes, and displays a pattern of behaviour that the Tribunal does not encourage. The Tribunal has Rules and orders that deal with deadlines for the exchange and filing of documents in order to avoid the kind of prejudice that the respondent was facing that could not be cured by a short adjournment.

ISSUES

15Part-way through the hearing, the applicant withdrew all of the disputed issues related to her March 11, 2019 accident. Those issues included whether her injuries were predominantly minor and subject to the Minor Injury Guideline, whether or not she was entitled to $4953.00 for chiropractic services as proposed in a treatment plan OCF-18 dated April 4, 2019 and submitted by Spinetec Healthcare Solutions, and whether she was entitled to interest on any overdue payment of benefits. The remaining issues in dispute all relate to the applicant’s December 17, 2019 accident.

16The following are the issues we are required to determine: ³

i. Is the applicant entitled to attendant care benefits in the amount of $1,736.35 per month from September 16, 2020 and ongoing?

ii. Is the applicant entitled to Income replacement benefits (“IRBs”) in the amount of $334.06 per week from December 24, 2019 to April 4, 2021?

iii. Was the applicant overpaid by the respondent with respect to IRBs, and if so, in what amount?

iv. Is the applicant entitled to chiropractic and physiotherapy services in the amount of $3,307.50 proposed in a treatment plan OCF-18 submitted by Spinetec Healthcare Solutions on February 18, 2022?

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

RESULT

17The applicant is not entitled to attendant care benefits.

18The applicant is entitled to income replacement benefits from December 24, 2019 to October 1, 2020, which, after deductions for gross post-accident income, amounts to $0.

19We are unable to determine if there was an overpayment of IRBs and if so, how much it was.

20The applicant is not entitled to the treatment plan in the amount of $3,307.50 for chiropractic and physiotherapy services submitted by Spinetec Healthcare Solutions on February 18, 2022.

21As no benefits are owing, no interest is payable.

Analysis

Entitlement to Attendant Care from September 16, 2020 and ongoing

22We found the applicant to be a bright and resourceful individual. Her oral testimony, however, was not forthcoming. She avoided answering questions put directly to her at times, and she was a poor historian. We find that this calls into question her overall credibility.

23The applicant submitted that she only came to Canada from Nigeria in 2017, and that perhaps she did not fully understand the questions put to her. But, at no point was there ever a request for an interpreter and we found her to be completely fluent in English. The applicant also testified that she completed university coursework in Nigeria that was delivered in English. Accordingly, we do not agree with her submission that she did not fully understand the questions put to her. For these reasons, we have placed more weight on the documentary evidence and Dr. Allen’s testimony when they conflicted with the applicant’s testimony.

24At times, the applicant spoke very quickly. Due to the videoconference static, some of her testimony could not be heard. She was, therefore, asked to repeat a number of her answers. This led to her submission that the Tribunal was systemically prejudiced against her. We do not agree, and find that it was important to hear her testimony despite the technical difficulties.

25Under s.19 of the Schedule, attendant care benefits pay for all reasonable and necessary expenses that are incurred by an applicant for services provided by an aide or attendant. The monthly amount of attendant care that an applicant is entitled to is determined in accordance with a form called an assessment of attendant care needs (“Form 1”). The onus is on the applicant to prove that she required the care of an aide or attendant and that she incurred the expense of hiring one.

26The respondent did not take issue with the applicant requiring attendant care at the level claimed up to December 7, 2020. The respondent submitted, however, that there was no evidence that the applicant incurred the expense for attendant care claimed during that period. The respondent also suggested that the applicant may still be entitled to attendant care benefits despite not hiring an attendant or aide if she could prove that the expense was not incurred because the respondent unreasonably withheld or delayed payment of the benefit.⁴

27The applicant relied upon the report and the attendant care recommendations made by Remik Zakrzewski in his Form 1 dated September 16, 2020. He recommended 70 minutes per week for assistance with dressing, 70 minutes for undressing, 90 minutes for grooming, 315 minutes for preparing and serving meals, 35 minutes for assistance with postural changes, 35 minutes for medication administration, 140 minutes to assist with bathing, 210 minutes to assist the applicant with exercise, 420 minutes per week for assistance with cleaning up after the applicant and helping her to get her clothes ready and sorting laundry.

28The respondent relied on the report of Joan Saunders, occupational therapist, dated December 7, 2020.⁵ The assessment was requested by the respondent under s. 44 of the Schedule. The applicant reported to Ms. Saunders that she had difficulty doing her hair. The respondent submitted that the applicant’s self-report of difficulty is very different, however, from an assessor reporting the same difficulties based on actual observation of the applicant’s functional limitations. Ms. Saunders’s report and Form 1 concluded that the applicant did not require any further attendant care.

29The respondent submitted that the benefits sought in relation to the September 16, 2020 Form 1, almost nine months after the date of the accident, are inflated and not reflective of the applicant’s attendant care needs.⁶ The Form 1 does not reflect the assistance that the applicant testified she needed or that she received. The respondent submitted that, if anything, the applicant required and received what amounted to housekeeping support.

30The applicant testified and submitted that she needed assistance with cooking and heavy cleaning. According to the Schedule, however, housekeeping benefits are only available to individuals who are deemed catastrophically impaired. That does not apply to the applicant in this case. The respondent submitted that a Form 1 should not be used to craft housekeeping benefits under certain Form 1 categories.

31The applicant testified that prior to her accidents, she was responsible for all of the housekeeping, cooking, childcare, and outside maintenance of her home. She would prepare fresh meals multiple times a day for her family, and helped friends and family whenever they needed. After her December 19, 2019 accident in particular, she was no longer able to prepare multiple fresh daily meals for her family. However, she testified that she was still able to make some meals for her family, feed herself, dress and care for herself, and clean up the washroom after herself, albeit with some difficulty.

32The applicant testified that she had a personal support worker (“PSW”) friend come into her home to provide attendant care for a total of 105 hours between August and December 2020. Specifically, the PSW helped with cooking and heavy cleaning. The applicant paid her in cash, and she did not have any attendant care after December 2020.

33We find that the applicant required attendant care benefits up until Ms. Saunders’ December 7, 2020 Form 1. There is no earlier Form 1 on file that contradicts Mr. Zakrzrewski’s September 16, 2020 Form 1 recommendations of $1,736.35 per month.

34According to the Schedule, the attendant care at $1,736.35 per month recommended by Mr. Zakrzrewski is payable if it is incurred until such time as a new Form 1 is presented. Unfortunately, there was no evidence to corroborate the applicant’s testimony that she paid a PSW for attendant care, and whether any attendant care that she did receive was for services that corresponded with Mr. Zakrzrewski’s September 16, 2020 Form 1 recommendations.

35Although the applicant did not seek to have the attendant care deemed incurred, the respondent made submissions that she did not seek it for the following reasons. The respondent could not have delayed payment because it sent multiple letters to the applicant asking her to provide information about the support worker who was providing attendant care. The applicant was asked to submit any claims for attendant care for the period between August and December 2020 to the respondent for review.⁷ There was no response from the applicant. Simply put, the respondent requested information about the PSW’s background and whether or not she incurred any economical loss as a result of assisting the applicant. The applicant failed to provide that information, so the respondent denied the benefit in accordance with s.33 of the Schedule. Section. 33 sets out that an applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

36The insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with its s.33 request unless the insured person has a reasonable excuse. We find that the information requested from the applicant was reasonably required to determine whether she incurred an attendant care expense and for the respondent to adjust the claim for attendant care. As the applicant failed to comply with s.33 of the Schedule, and she provided no excuse for her failure, she is barred by s.33 of the Schedule from any entitlement to attendant care for the period of time she fails to provide the information.

Entitlement to IRBs from December 24, 2019 to April 4, 2021

37During the first 104 weeks after an accident, IRBs are payable to an insured person who is substantially unable to perform the essential tasks of her pre-accident employment as a result of an accident impairment. The applicant has the onus of proving her entitlement on a balance of probabilities. To determine the applicant’s entitlement, we must first identify what the applicant’s essential tasks of her employment at the time of the accident were.

38The applicant submitted that following her December 17, 2019 accident, she could not do the essential physical tasks required for her job as a PSW. She testified that her job was very physical in nature. We accept that the essential tasks of the applicant’s work involve lifting clients without assistance, preparing meals, assisting with feeding, cleaning, dressing, and providing personal care to clients.⁸ Prior to the second accident, the applicant provided care to clients with severe developmental disabilities independently and without any support.

39The applicant was off work for almost six months after her second accident. She enrolled in a full-time lab technician program in February 2020. According to her testimony, we find that her lab work was not physically demanding. The applicant testified that when she returned to work as a part-time PSW in June 2020 her duties were modified, and she was paired with another PSW who did the heavier lifting and meal preparation that was required.

40The respondent submitted that the applicant’s testimony is not corroborated by the medical evidence. We find that there is no documented evidence that the applicant was performing modified duties at work after October 1, 2020, and no witnesses, such as a co-worker or employer, were called to corroborate her testimony. The respondent relied on a letter from the applicant’s family physician, Dr. Emil Kahal, dated October 1, 2020 stating that the applicant was fit to return to regular duties. ⁹

41The applicant testified that she was the one who pushed Dr. Khalil for his October 1, 2020 note because she wanted to return to her regular duties. She testified that the note was premature, and she wasn’t ready for regular duties. There is no evidence, however, that the applicant ever returned to Dr. Khalil for a revised note to be put back on modified duties.

42The applicant submitted that the IE assessors who commented that she could perform full work duties did not testify or elaborate on their recommendations at the hearing. Those reports also failed to specifically address the essential tasks of her employment. The applicant submitted that for those reasons, their reports should be given little weight. We find, however, that the report of Dr. Paul Zalzal, orthopedic surgeon, that was commissioned by the respondent and dated October 5, 2020, references the applicant’s work as a ‘PSW’,¹⁰ and Dr. Khalil was the applicant’s own treating family doctor. He would have been most familiar with the particulars of the applicant’s employment and the status of her health condition.

43We accept that the injuries stemming from the applicant’s December 19, 2019 accident did result in a substantial inability to perform the essential tasks of her pre-accident employment as a PSW from the time of the accident until Dr. Kahlil’s October 1, 2020 note.¹¹ The same opinion was echoed by Dr. Zalzal in his orthopedic assessment dated October 5, 2020.¹²

44We find, however, that the applicant has failed to prove on a balance of probabilities that she suffered a substantial inability to engage in the essential tasks of her occupation as a personal support worker after October 19, 2020, as a result of the injuries she sustained from her second car accident.

45We find that the applicant is entitled to IRBs from December 24, 2019 to October 1, 2020.

IRB Quantum

46The method for calculating IRBs is outlined in s.7 of the Schedule. To calculate the applicant’s IRB, we must first determine the applicant’s gross annual employment income. Under s. 4(1) of the Schedule, gross annual income is defined as the insured’s salary and wages and includes any benefits received under the Employment Insurance Act, SC 1996, c.23 (the “EI Act”).

47The applicant submitted that, when her gross annual pre-accident income is used to calculate her IRB, she is entitled to IRBs in the amount of $334.06 per week from December 24, 2019 until the time she went off work to go on maternity leave on April 4, 2021. The respondent, however, submitted that the proper quantum is $298.23 per week.¹³ It submitted that the applicant incorrectly calculated her gross annual pre-accident income by using all income listed on her record of employment (“ROE”) from KW Rehabilitation. The applicant submitted that the ROE shows that she earned $5,559.98 of insurable earnings and that it should be included with her earnings from Sbareit Independent Living of $2,132.46 and from Shlagel of $17,866.17 for a total of $25,558.60.

48Under the Schedule, the total gross earnings from the 52 week period pre-accident are divided by 52 and then multiplied by 70% ($25,558.60 divided by 52 = $491.51 @70% = $334.05 per week.). However, we do not find that the applicant earned $25,558.60 in the 52 weeks pre-accident. The amount used by the applicant to calculate her pre-accident income included post accident income that she earned at KW Rehabilitation. The ROE from KW Rehabilitation that the applicant relied on lists her earnings from 2020 to 2021.¹⁴ It does not list her pre-accident income. Accordingly, we prefer the respondent’s calculation of the IRB.

49The applicant submitted that the respondent owes her income replacement benefits because it incorrectly deducted her EI benefits from her IRB. The respondent relied on s. 7(3)(a) of the Schedule, which allows an insurer to deduct 70% of any gross employment income received by an insured during the period she is eligible to receive IRBs from the amount of the IRB payable. It also relies on s. 4(1) of the Schedule, which defines “gross employment income” as including any EI benefits. The respondent deducted the EI benefits the applicant received between December 24, 2019 and March 7, 2020 from the IRBs payable from December 24, 2019 to Oct 18, 2020.

50The applicant submits that the respondent owes her IRBs because it improperly deducted EI that she received after the accident from her IRBs. The applicant submits that the respondent is prohibited from deducting EI benefits from IRBs on the basis that it is “other income replacement assistance” under s.4(1) of the Schedule. The definition of “other income replacement assistance” in s.4(1) excludes EI benefits. Based on that exclusion, the applicant submits that EI benefits could not be deducted from the IRB. We disagree for the following reasons.

51Historically, prior to the present Schedule, EI benefits were not deductible from IRBs, but were used to calculate the quantum of pre-accident gross income for the purpose of determining the amount of IRBs.¹⁵ Under the SABS, EI benefits were included in calculating pre-accident gross income. The Schedule, unlike the SABS, does not distinguish between EI received pre-accident or EI received post- accident under the definition of gross income. However, for gross post-accident income to be deducted under s.7(3)(a) of the Schedule from the IRB, it must have been received as a result of being employed after the accident.

52We accept that EI benefits received prior to the accident are gross income as defined in s.4(1) of the Schedule. The difficulty is that s. 7(3)(a) of the Schedule states that the gross employment income that is deductible from an IRB must have been received by the applicant as a result of being employed after the accident. It is not clear whether “after the accident” means the gross income was received because of employment that occurred after the accident or the gross income was received after the accident regardless of when it was earned. Generally, EI benefits are only paid when one is not employed. In other words, if the applicant did not return to work post-accident, then the EI benefits she received during that period of not working could only have been generated from her pre-accident employment and not as a result of post-accident employment.

53Sections 4(1) and 7(3)(a) are meant to ensure that the insured person receives an income replacement benefit that fairly and realistically reflects her actual income situation, avoiding both over and under compensation. To interpret s. 7(3) to exclude gross income received after the accident for work performed pre-accident is contrary to how income is treated under the Income Tax Act.¹⁶ We find from the references to the Income Tax Act throughout s.4 of the Schedule, that the Legislature intended income under the Schedule to be treated the same as income under the Income Tax Act. For example, s. 4(5) of the Schedule states that if a person is required to report the amount of his or her income under the Income Tax Act, the person’s income before an accident shall be determined without reference to any income the person has failed to report contrary to the Income Tax Act. Under the Income Tax Act, income from employment for a particular year is the income received in that year. Accordingly, an interpretation of “gross income received by the person” in s. 7(3) of the Schedule that means the receipt of the gross income regardless of when it was earned is harmonious with the Income Tax Act. It is also in keeping with the Legislature’s intention to ensure there is no overcompensation.

54Neither party provided us with any authority for the meaning of s.7(3)(a) of the Schedule. We find that the two possible meanings provided by the applicant are not harmonious with Legislature’s intent. Accordingly, we find that gross income includes the EI benefits received by the applicant after the accident regardless of when the employment took place that resulted in receipt of those EI benefits. We find that under s. 7(3) of the Schedule, the EI benefits received by the applicant after the accident are gross income that is deductible from her IRB.

Overpayment

55The respondent claims an IRB repayment from the applicant for an overpayment of benefits. The respondent submitted that it overpaid the applicant $258.86 in IRBs. The respondent initially sought a repayment of $2500.00.¹⁷ It submitted at the hearing that it recalculated the IRB and determined that the overpayment was much less than it initially calculated.

56No allegation of material misrepresentation or fraud was made by the respondent. This means that under s. 52(3) and 52(2)(a) of the Schedule, the respondent was required to provide notice to the applicant that it was seeking a repayment of the IRBs within 12 months of when they were paid to the applicant, and advise the amount that it was seeking. The only letter that was in evidence before us as to when the respondent sought a repayment and that stated the amount was the letter of June 27, 2022, which was served well beyond the twelve month period.

57The case conference Order stated that the issue before us was to determine whether the applicant was overpaid a non-earner benefit¹⁸ and, if so, how much. This is information that would be required if the respondent was seeking a repayment of a benefit, which is not an issue listed in the Order. We are unable to determine whether there was an overpayment of a specified benefit for the following reason.

58The respondent relied on its June 27, 2022 letter and the enclosed calculations that purport to show an overpayment of IRBs. We cannot determine from the letter what was paid to the applicant by the respondent or when. There is no way to determine from the letter how the respondent arrived at its calculation. Again, it appears as though the respondent included the applicant’s EI benefits in her post-accident gross income calculation, and that is what was deducted in determining her IRB quantum. If that is the case, the respondent properly withheld IRBs in an amount almost equivalent to 70% of the EI benefits that were paid to the applicant.

59However, it is not clear to us what was actually deducted from the IRBs. Accordingly, we are unable to determine what the amount of the overpayment was, if any, that was paid by the respondent. If the parties cannot agree on what that amount was, they may make further submissions in that respect, within 30 days of the release of this decision.

Entitlement to Chiropractic and Physiotherapy Treatment Plan submitted February 18, 2022

60The appellant’s onus is to establish that it is more likely than not that the treatment plan was reasonable and necessary at the time. Based on the evidence and submissions, we find that the applicant has not met her onus of proving entitlement to the disputed physiotherapy and chiropractic treatment plan dated February 18, 2022.

61The injuries listed on the disputed treatment plan include: intervertebral disc disorder, sprain/strain of the cervical spine, sprain/strain of the shoulder girdle, headache, unspecified arthritis, and fractured metacarpal bone.¹⁹ The treatment plan goals include pain reduction, increased strength, increased range of motion, increased endurance, increased flexibility, and a return to activities of normal living. The treatment plan called for a combination of active and passive treatment.

62The applicant attended Spinetec Healthcare Solutions for rehabilitation therapy following her December 19, 2019 accident until July 2020. She stopped going to any type of physiotherapy or chiropractic treatment. She attended a total of approximately 24 combined physiotherapy and chiropractic treatment sessions. Some of those treatment sessions overlapped on the same day.²⁰

63According to the applicant, treatment at Spinetec was helpful for pain reduction. Apart from the applicant’s oral testimony, however, there is little objective evidence that supports that her injuries were ongoing. The family doctor’s clinical notes and records end after March 23, 2019²¹. They do not corroborate any ongoing accident-related complaints, limitations, or disability after that time.

64There was also no clear reason as to why the applicant stopped attending treatment in 2020, other than her testimony that she didn’t believe the clinic that she was attending was receiving payment from the insurer. We find that the applicant’s lack of treatment between July 2020 and February 2022 along with the lack of a consistent medical record documenting any ongoing complaints to be particularly compelling.

65The applicant submitted that her physiotherapy and chiropractic treatment was limited after July 2020 because of restrictions related to the COVID-19 pandemic. The applicant’s representative also submitted that Spinetec Healthcare Solutions closed down during the pandemic and was only seeing patients for emergency visits. Dr. Allen, however, testified that Spinetec was only closed between May and July 2020. According to sign-in records from the clinic, the applicant attended treatment during that restricted time.²²

66While we accept that services such as chiropractic and physiotherapy were reduced during the COVID-19 pandemic, the fact that the applicant did attend treatment during a restricted time and stopped attending treatment altogether when service restrictions were less stringent does not support her submission that COVID-19 prevented her from receiving treatment.

67The respondent submitted that the applicant also stopped following up with her plastic surgeon regarding her left metacarpal fracture in March 2020. In his last report, Dr. Cornerman, plastic surgeon, noted that the applicant had full range of motion and could make a full fist.²³ According to the applicant, she was still having hand and wrist pain but just did not return to Dr. Cornerman. The treatment plan in question is dated almost two years after the applicant stopped seeing Dr. Cornerman.

68We found that Dr. Allen’s testimony was not convincing as to why he proposed a treatment plan for physiotherapy and chiropractic treatment after the applicant’s 19-month absence from treatment. Dr. Allen’s Subjective Objective Assessment Plan notes (“SOAP notes”) dated February 2022 listed a new diagnosis of post-concussive syndrome, but Dr. Allen could not recall if he had reviewed any other clinical notes and records besides his own when proposing the additional treatment, or in making a new diagnosis.

69Dr. Allen testified that he assumed the applicant’s complaints of pain were ongoing, but he could not identify any objective evidence to support that. He identified the types of questions that he would generally ask patients with respect to their condition in his testimony, but he could not recall what specifically he had asked the applicant in this case that prompted his recommendation for additional treatment, apart from her subjective report. It is also important to note that Dr. Allen had not reviewed the applicant’s file prior to giving his testimony at the hearing. His testimony was based on what he thought he could recall.

70We found Dr. Allen’s testimony failed to substantiate why Spinetec had proposed the treatment plan in question nearly two years after the applicant last attended the clinic.

71Based on the limited substantiating evidence that would support the proposed treatment plan, the lack of any rehabilitation treatment between July 2020 and February 2022, the fact that there are no medical records from any treating practitioner suggestive of consistent and ongoing injuries between July 2020 and February 2022, and Dr. Allen’s limited recollection and lack of records supporting that the proposed treatment was reasonable and necessary, we find that the applicant has not met her onus of establishing that the proposed treatment plan was reasonable and necessary.

Interest

72Pursuant to s.51 of the Schedule, interest is payable when the respondent fails to pay a benefit within the time period prescribed by the regulation.

73We determined that nothing is owing to the applicant. Accordingly, no interest is payable.

ORDER

74The applicant’s claim for attendant care is dismissed.

75The applicant is entitled to income replacement benefits of $298.23 per week from December 24, 2019 to October 1, 2020 before the deduction for 70% of her gross post-accident employment income in accordance with the Schedule.

76If the parties cannot agree on what the amount of IRB that was paid to the applicant after deductions for 70% gross post-accident income, they may make further submissions in that respect, within 30 days of the release of this decision.

77The applicant’s claim for $3307.50 for chiropractic and physiotherapy services submitted by Spinetec Healthcare Solutions in a treatment plan on February 18, 2022 is dismissed.

78The applicant’s claim for interest is dismissed.

Released: January 18, 2023

Tyler Moore

Adjudicator

Deborah Neilson