Licence Appeal Tribunal File Number: 20-000613/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:
Millicent Munar
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Tina D. Radimisis, Counsel
For the Respondent:
Catherine Zingg, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Millicent Munar, the applicant, was involved in an automobile accident on July 19, 2017 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 the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2On November 1, 2022, the Tribunal released its written decision on this matter, where the Tribunal found that the applicant was barred from proceeding with her application pursuant to s. 55(1)2 of the Schedule, due to her non-attendance at scheduled insurer’s examinations.
3Following the applicant’s request for reconsideration, the Tribunal granted a rehearing on the basis that, through no fault of the applicant, the Tribunal did not receive all of the applicant’s submissions before rendering its decision. Accordingly, in its reconsideration decision dated April 11, 2023, the Tribunal ordered a rehearing.
4As such, I have been seized with the rehearing of this matter, on both the preliminary and substantive issues, listed below.
PRELIMINARY ISSUE
5Is the applicant prohibited from proceeding with her application at the Tribunal due to her alleged non-attendance at scheduled insurer’s assessments, pursuant to s. 55 of the Schedule?
SUBSTANTIVE ISSUES
6The substantive issues in dispute are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week for the period May 30, 2018 and to date and ongoing?
ii. Is the applicant entitled to a treatment plan (“OCF-18”) in the amount of $2,411.16 for active therapy and massage therapy, dated March 9, 2019?
iii. Is the applicant entitled to an OCF-18 in the amount of $1,079.75 for goods and services recommended by Promed Rehabilitation Clinic, dated April 28, 2018?
iv. Is the applicant entitled to an OCF-18 in the amount of $2,485.00 for a home/attendant care assessment, dated March 14, 2018?
v. Is the applicant entitled to the outstanding balance of an OCF-18 for a driver reintegration assessment, dated January 24, 2018?
vi. Is the applicant entitled to an OCF-18 in the amount of $2,200.00 for a psychological assessment, dated January 5, 2018?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7With respect to the preliminary issue, I find that the applicant is barred from proceeding with the issue of post-104 week IRBs due to non-attendance at scheduled insurer’s assessments, pursuant to s. 55(1)2 of the Schedule;
8With respect to the substantive issues in dispute, I find that:
i. With respect to pre-104 week IRBs, the applicant has not adduced sufficient evidence as to whether any amounts are owing by the respondent. As such I find that the applicant has failed to establish that she is entitled to outstanding payment of pre-104 week IRBs;
ii. The applicant is not entitled to the OCF-18 for a psychological assessment, as she has not established that it is reasonable and necessary; and
iii. The applicant is entitled to the remaining treatment plans in dispute, plus interest in accordance with s. 51 of the Schedule.
PRELIMINARY ISSUE – POST-104 WEEK IRBS
9I find that the applicant is barred from proceeding with the issue of post-104 weeks IRBs, due to her non-attendance at scheduled insurer’s examinations (“IEs”).
10Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
11Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
12The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE1.
13The preliminary issue in this matter had been added to the written hearing by way of a Motion Order dated August 9, 2021. Although I note that the Motion Order identified the preliminary issue as being whether the applicant was prohibited from proceeding with her application due to her non-attendance at scheduled IEs, from my review of the evidence, it appears that the IEs in dispute were scheduled solely with respect to the issue of post-104 week IRBs. Therefore, I agree with the applicant’s submissions that if the applicant is found to have not attended the properly scheduled IEs, she would be prohibited with proceeding solely with the issue of post-104 week IRBs, but would not be barred from proceeding with the remaining issues in dispute.
14The respondent submits that the applicant failed to attend two properly scheduled IEs to assess her claim for post-104 week IRBs – a physiatry IE and a functional abilities evaluation (FAE). It submits that it had re-scheduled these assessments multiple times to accommodate the applicant. The respondent further contends that given the issues in dispute, it would be prejudicial and unfair for it to proceed to a hearing without the benefit of these IEs.
15The applicant does not dispute that she failed to attend the FAE and physiatry IEs. However, she submits that the FAE assessment was not reasonably necessary, as the respondent would have had ample opportunity to examine any physical limitations by way of a physiatry assessment. The applicant further argues that while the physiatry assessment was rescheduled twice, reasonable explanations were provided. With respect to the third attempt at rescheduling, the applicant concedes that she did not attend the physiatry IE scheduled on September 18, 2019, but contends that her counsel reached out and requested that the IE be rescheduled, which the respondent has failed to do.
16I agree with the respondent’s submissions that the applicant failed to attend the reasonably necessary physiatry IE, without reasonable explanation. The respondent sent a Notice of Examination (“NOE”) dated June 7, 2019 scheduling five IEs, including the physiatry IE with Dr. Oshidari on July 12, 2019. The applicant requested that two of the other IEs (not the physiatry IE) be rescheduled due to child care issues, which the respondent accommodated. The applicant subsequently also requested that the physiatry IE be rescheduled due to childcare concerns.
17The respondent accommodated this request and rescheduled the physiatry IE to August 26, 2019. On August 23, 2019, the applicant’s legal representative contacted the respondent and stated that the applicant would only attend the physiatry assessment if a different assessor was used. The respondent submits that no reasonable explanation was provided for this demand, however, it accommodated the request and a new physiatry assessment was scheduled on September 18, 2019, with a different assessor. The applicant failed to attend this assessment. By way of letter dated September 24, 2019, the respondent noted the history of attempts to reschedule IEs to accommodate the applicant, her non-attendance on September 18, 2019 and, suspended the applicant’s IRBs due to non-attendance at the physiatry IE.
18The applicant does not dispute that the physiatry assessment is reasonably necessary in relation to her post-104 IRB claim. Nor does she submit that any of the respondent’s physiatry IE notices were deficient.
19I find that the applicant has failed to attend the physiatry IE and therefore, has not complied with s. 44 of the Schedule. I must determine whether the applicant’s explanation for her noncompliance is a reasonable one.
20The applicant argues that the respondent was required to reschedule the missed IE, as her counsel emailed the respondent on September 20, 2019, two days after the missed appointment, requesting that it be rescheduled. However, I note the respondent’s correspondence dated November 20, 2019, where it followed up on its September 24, 2019 letter, regarding the missed physiatry IE. The respondent noted that to date, it had not received a reasonable explanation for the non-attendance and requested that the applicant provide such a reason. The respondent also requested written confirmation that she attend any rescheduled physiatry IE. The applicant has not provided any submissions or evidence as to whether she provided a reasonable explanation for the non-attendance, or such written confirmation to the respondent that she would attend a rescheduled IE. She further has not provided any explanation for the non-attendance as part of her written submissions. As such, I find the applicant has fallen short of meeting her burden to establish a reasonable explanation for not attending a s. 44 IE.
21With respect to the FAE assessment, I further do not find the applicant’s argument that she was justified in refusing to attend this assessment because it was not reasonably necessary, to be persuasive. The applicant cites the Tribunal decision C.G. v Travelers Insurance, 2019 CanLII 101478 (ON LAT), in support of her position that the FAE was redundant. She contends that in this decision, the Tribunal found that an FAE was not reasonably necessary given the fact that neurological and physiatry assessments were sufficient to examine physical limitations, along with substantial information from the applicant’s treating physicians. I find that this decision is clearly distinguishable, as in the matter at hand, the respondent was unable to obtain such a physiatry assessment, due to the applicant’s non-attendance at the scheduled (and re-scheduled) physiatry IE. Similarly, I do not accept the applicant’s argument that a physiatrist would be able to opine on any physical limitations and capabilities rendering an FAE redundant, again, due to the fact that a physiatry IE was never obtained.
22As such, I find that the applicant failed to attend “reasonably necessary” IEs meant to assess her entitlement to post-104 IRBs. Section 55(1) of the Schedule is triggered. I have not been given any rationale to exercise my discretion to permit her to proceed with this issue, pursuant to s. 55(2) and (3) and I decline to exercise it. Accordingly, the applicant is barred from proceeding with this issue.
SUBSTANTIVE ISSUES IN DISPUTE
Pre-104 Week IRBs
23The applicant claims entitlement to IRBs from May 30, 2018, to date and ongoing. There does not appear to be any issue with non-attendance for IEs for pre-104 week IRBs, as such the issue is properly before me.
24The respondent does not appear to be disputing the applicant’s entitlement to pre-104 week IRBs. It submits correspondence it sent to the applicant dated December 12, 2018, where it confirmed the applicant’s ongoing entitlement to pre-104 week IRBs based on its IE assessments. However, the applicant appears to be claiming that the full amount of the pre-104 week IRBs has not been paid.
25The applicant submits that her IRBs were suspended effective May 30, 2018, due to an outstanding Disability Certificate (OCF-3). She submits correspondence dated August 20, 2018, showing that she provided this updated OCF-3, but argues that her benefits were not reinstated, despite the respondent’s receipt of the outstanding OCF-3. However, the applicant has not provided any further evidence or submissions on this issue. The applicant does not identify what the outstanding amount of pre-104 week IRBs would be. Nor does she provide any corroborating evidence of the fact that IRBs were not paid after she provided the outstanding OCF-3 on August 20, 2018.
26The respondent disputes the applicant’s submission that IRBs were only paid until May 30, 2018. It submits that in fact, $41,880.00 of IRBs were paid to the applicant, which would represent a period of just over 104 weeks. Despite providing reply submissions for this written hearing, the applicant did not address the respondent’s argument that $41,880.00 of IRBs was paid.
27Neither the applicant nor the respondent provided statements or records of the amount of IRBs paid. The only evidence before me on this issue is correspondence between the applicant and insurer, but it does appear to indicate that IRBs had been paid subsequent to May 30, 2018. I note the letter dated December 12, 2018 from the respondent, where it confirmed the applicant’s ongoing entitlement to pre-104 week IRBs based on its IE assessments. This implies that IRBs were being paid at the time. I further note the respondent’s correspondence dated September 24, 2019, which stated:
Please be advised that your entitlement to Income Replacement Benefits has been suspended effective October 3, 2019 due to non-compliance as you did not attend the Insurer’s Examination which was scheduled for September 18, 2019. Please note your Income Replacement Benefit payment has already been paid up to October 2, 2019.
28This correspondence appears to directly refute the applicant’s submissions that no IRBs were paid past May 30, 2018. The applicant has provided no evidence to refute the respondent’s assertion that it paid IRBs up until October 2, 2019, in the amount of $41,880.00. The applicant bears the onus to prove that she was not paid the full amount of pre-104 week IRBs and what any outstanding amount would be. Without such evidence or any specific submissions on this issue, the applicant has failed to establish that any outstanding amounts of pre-104 week IRBs are owed by the respondent.
29Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.
30The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.
31The applicant submits that the five treatment plans in dispute are all reasonable and necessary.
OCF-18s for physical therapy and therapeutic devices are reasonable and necessary
32The applicant submitted an OCF-18 dated March 9, 2019 for active therapy, chiropractic treatment and massage and an OCF-18 dated April 28, 2018 for a TENs unit, Biofreeze and shiatsu massage seat. The plans identified similar stated goals of pain reduction, aiding in personal care tasks and a return to activities of daily living (“ADLs”).
33The respondent denied both of the OCF-18s on the basis of a prior physiatry IE report of Dr. Oshidari dated March 28, 2018. Although the report considered treatment plans not in dispute, the respondent relies on Dr. Oshidari’s findings that the applicant had sustained only sprain/strain of the cervical, upper back and lumbar spine, contusion of the right shoulder and a tension headache as a result of the accident. Dr. Oshidari concluded that the applicant had achieved maximum medical improvement and that the applicant had received extensive treatment without any long-term benefit.
34Although the respondent denied the two OCF-18s on the basis that the applicant had reached maximum medical improvement from a physical perspective, the respondent failed to address the OCF-18s’ stated goal of pain reduction. The applicant’s chronic pain is well-documented in the medical record. The central goal of each of the OCF-18s was addressing the applicant’s pain to aid in her return to ADLs. I note that Dr. Oshidari’s own report noted that the applicant reported that she sometimes required her husband’s assistance for ADLs if she was in too much pain. I further agree with applicant’s submissions and caselaw that pain relief and maintenance of functionality are legitimate goals of treatment.
35Moreover, the applicant has provided a note from her family physician Dr. Leung specifically on the issue of the reasonableness and necessity of the treatment plans in dispute. Dr. Leung states that the applicant does require periodic rehabilitation treatment, such as chiropractic, massage and physiotherapy to address her chronic pain. The family physician also specifically references both the OCF-18 for therapeutic devices and the OCF-18 for physical treatment and states that they are reasonable and necessary. I place substantial weight on the opinion of the applicant’s family physician. The clinical notes and records of Dr. Leung indicate that the applicant attended at his office numerous times for accident-related impairments and chronic pain. Dr. Leung was actively involved in the applicant’s ongoing care, including attempting to manage her chronic pain by referrals to a pain rehabilitation specialist.
36I note that additional physiotherapy, chiropractic treatment and massage were also recommended in the s. 25 occupational therapy report of Ms. Amy Law, dated July 19, 2017. The respondent has not provided sufficient evidence to refute the recommendations of both Ms. Law, and Dr. Leung. Further, I find that the overall cost of the applicable OCF-18s is also reasonable.
37As such, I find that the applicant has established that both the OCF-18 dated March 9, 2019 and the OCF-18 dated April 28, 2018 are reasonable and necessary.
OCF-18 dated March 14, 2018 for a home/attendant care assessment is reasonable and necessary
38In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.
39The applicant has provided sufficient evidence that she suffers from some impairments in her ability to carry out her ADLs due to her chronic pain. This has been noted by the applicant’s family physician Dr. Leung, her chronic pain specialist Dr. Kachooie and in a s. 25 functional abilities assessment. The respondent’s IE assessor Dr. Oshidari also noted the applicant’s reports that her husband at times had to assist with ADLs if she was in too much pain. Given the evidence I am satisfied the applicant has provided objective grounds to warrant an assessment of the extent of the applicant’s impairments in this area.
40Moreover, I do not find the respondent’s additional arguments denying the assessment to be persuasive. In addition to citing a lack of compelling evidence, the respondent submits that this assessment was duplicative, as it had previously received an OCF-18 for an attendant care assessment from another facility. While I would find this argument to be persuasive if the prior attendant care assessment had been approved, the respondent had denied the previous treatment plan. Therefore, I do not find that the proposed OCF-18 would be a duplication of services. The respondent also cites the fact that the proposed OCF-18 was dated March 14, 2018, but it had been submitted over a year later on April 24, 2019. However, I do not find the date of the submission to be a determinative argument with respect to the reasonableness and necessity of the assessment. The applicant’s chronic pain, functional impairment and difficulties in performing her ADLs has been documented in the medical file throughout 2018 and 2019 – both when the OCF-18 was dated and when it was submitted.
41Given the evidence cited above related to the applicant ongoing difficulties with fulfilling her ADLs, I find this assessment is reasonable and necessary pursuant to the Schedule.
OCF-18 dated January 24, 2018 for a driver reintegration assessment is reasonable and necessary
42The applicant submitted an OCF-18 dated January 24, 2018 in the amount of $2,219.74 for a driver reintegration assessment. The OCF-18 proposed a thorough driving evaluation assessment which would make specific treatment recommendations for the applicant’s vehicular phobia. The assessment was to include a review of file material to determine the applicant’s ability to drive, consulting with referral sources, an initial screening, an in-vehicle assessment, a driving evaluation and report preparation.
43The respondent partially approved the assessment in the amount of $572.61. It agreed to pay $58.19 for an hour assessment with a driving instructor, a one hour for “test, mental health and addictions” and one hour for report preparation. The respondent argues that the remainder of the plan is unnecessary, as the applicant’s psychological assessor Dr. Vitelli had already determined that a driver reintegration assessment would be beneficial, so this additional assessment would be duplicative.
44I agree with the applicant that the assessment proposed in the OCF-18 in dispute would not be duplicative. In Dr. Vitelli’s psychological assessment dated November 14, 2017, he stated that the applicant would benefit from a driver reintegration assessment, however, he did not conduct such an assessment himself. As such, a comprehensive evaluation and assessment of the applicant’s ability to drive with specific treatment recommendations had not yet been conducted. As such, I find that the outstanding balance of the OCF-18 for the driver reintegration assessment is reasonable and necessary.
The applicant has not established entitlement to the OCF-18 for a psychological assessment
45The applicant submitted an OCF-18 dated January 5, 2018 for a psychological assessment. She contends that given the extensive evidence of her ongoing accident-related psychological impairments, the assessment is warranted.
46However, I agree with the respondent’s submissions that the applicant has not established why a second psychological assessment is warranted, only a few months after a previously approved psychological assessment was completed. The applicant submitted a s. 25 psychological assessment dated November 14, 2017 prepared by Dr. Vitelli. No explanation is provided as to why another psychological assessment was required less than two months after Dr. Vitelli’s report. The applicant did not provide any submissions or evidence to refute the respondent’s argument that such an assessment so soon afterwards would be duplicative.
47As such, I find that the applicant has not established the reasonableness or necessity of the OCF-18 in dispute.
ORDER
48For the foregoing reasons, I find that:
i. the applicant is barred from proceeding with the issue of post-104 week IRBs due to non-attendance at scheduled IEs, pursuant to s. 55(1)2 of the Schedule. I decline to exercise my discretion to permit the applicant to proceed with this issue;
ii. the applicant has not established that the respondent owes any payment of pre-104 week IRBs;
iii. The applicant is not entitled to the OCF-18 dated January 5, 2018 for a psychological assessment; and
iv. The applicant is entitled to the remaining treatment plans in dispute, plus interest in accordance with s. 51 of the Schedule.
Released: May 11, 2023
Ulana Pahuta
Adjudicator
Footnotes
- State Farm Mutual Automobile Insurance Company v. S.R. and Financial Services Commission of Ontario, 2013 ONSC 2086.