Citation: Guxo v. Aviva Insurance Canada, 2023 ONLAT 21-003416/AABS

Licence Appeal Tribunal File Number: 21-003416/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:

Marjeta Guxo

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Darcie Sherman, Counsel

For the Respondent:

Andrew Smith, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Marjeta Guxo, the applicant, was involved in an automobile accident on November 1, 2019 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.

PRELIMINARY ISSUE

2The Case Conference Report and Order dated September 24, 2021 identified a preliminary issue of whether the applicant was barred from proceeding with issue 3(ii) as listed below, due to her failure to attend a scheduled s. 44 examination. However, in its submissions the respondent concedes that the applicant has now complied with s. 44 of the Schedule and has attended all required assessments. As such, the preliminary issue is no longer an issue in dispute at this written hearing.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to attendant care benefits of $972.01 per month from December 2019 to August 2020?

ii. Is the applicant entitled to $1,790.00 for an ocular assessment, proposed by Prime Healthcare Inc. in a treatment plan dated February 28, 2020?

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

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

RESULT

4For the reasons set out below, I find the applicant is not entitled to attendant care benefits for the period in dispute, as she has not demonstrated that the benefit was incurred. I also find that the applicant is not entitled to the treatment plan, as she has not established that it is reasonable and necessary. As no benefits are overdue, no interest is payable. The applicant is not entitled to an award.

ANALYSIS

Attendant Care Benefits

5I find that the applicant is not entitled to attendant care benefits, as she has not demonstrated that the services were incurred.

6Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary attendant care expenses that are incurred by or on behalf of an insured person as a result of an accident for services provided by an aide, attendant or long-term care facility.

7Section 3(7)(e) of the Schedule provides 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. The applicant bears the burden of proving entitlement to attendant care benefits on a balance of probabilities.

8The applicant has provided limited submissions and no evidence as to whether these benefits were incurred under any of the prongs of s. 3(7)(e). The bulk of the applicant’s submissions on the issue of attendant care benefits discuss her ongoing accident-related impairments and her corresponding entitlement to this benefit. The applicant submits that her mother provided attendant care benefits. She does not appear to be arguing that her mother provided attendant care services in the course of her employment, occupation or profession. Rather, the applicant simply states that her mother was called from Albania to provide attendant care services and lists the type of help her mother provided. However, if the person who provided attendant care services is a family member, as opposed to a professional service provider, any attendant care benefits payable are limited to the economic loss incurred by the family member.

9In terms of the economic loss incurred by the applicant’s mother, the applicant has provided limited submissions and no evidence of such loss. An “economic loss” is a factual determination. The onus is on the applicant to demonstrate such a loss. The applicant provides a general statement that her mother suffered an economic loss as a result of travelling to Canada from Albania to provide attendant care services. However, the applicant has provided no detail of the amount of such loss or any evidence in support of her factual submission. Accordingly, she has failed to establish that the attendant care benefits were incurred, and as a result, I find that no attendant care benefits are payable to the applicant.

10To receive payment for a treatment and assessment plan under s. 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and how the overall costs of achieving them are reasonable.

The applicant has not established entitlement to the OCF-18 for an ocular assessment

11The applicant submits that the OCF-18 dated February 28, 2020 for an ocular assessment is reasonable and necessary due to her post-concussive symptoms. The OCF-18 consists of an assessment described as a Vestibular Ocular Motor Screening (“VOMS”). It was recommended by the applicant’s chiropractor Dr. Chad Hefford at Prime Healthcare Inc., and in the additional comments section of the OCF-18, it is described as a screening tool to detect signs and symptoms of a concussion. The applicant argues that her post-concussive symptoms are well-documented and that her family physician and treating specialist Dr. Ian Finkelstein are both supportive of the assessment.

12The respondent does not dispute that the applicant suffered a concussion as a result of the accident. However, it submits that it is outside of Dr. Hefford’s scope of practice as a chiropractor to recommend specific treatment for brain injuries. The respondent further contends that the applicant was already being treated by her family physician and a specialist with respect to her post-concussive headaches. Finally, the respondent relies on its s. 44 neurological assessment, which found that such an assessment would not be reasonable and necessary to address the applicant’s primary neurologic complaint of headaches.

13I agree with the respondent’s submissions that the applicant has not established the reasonableness and necessity of the proposed VOMS ocular assessment.

14In her submissions, the applicant states that both her family physician and Dr. Finkelstein “support the applicant’s position that the Ocular Assessment is reasonable and necessary” to reduce the effects of her disability. However, from my review of the clinical notes and records (“CNRs”) of the doctors, I do not see such a specific recommendation. The applicant’s family physicians, Dr. Joulia Pronina and Dr. Heather Sherwin documented the applicant’s post-concussive symptoms, particularly her persistent headaches. Around the time the OCF-18 was submitted, Dr. Pronina referred the applicant to Dr. Ian Finkelstein at the Toronto Headache and Pain Clinic.

15Although the applicant submits that Dr. Finkelstein supported the proposed ocular assessment, I do not see any such reference in either his CNRs or his reporting letter dated February 20, 2020, which outlined a nine-point plan of care. Instead, he recommends medication, lifestyle changes, seeing an occupational therapist for concussion rehabilitation among other recommendations. The applicant continued to see Dr. Finkelstein throughout 2020, who monitored the applicant’s ongoing headaches and recommended alternate medications and injectables such as Botox.

16The respondent conducted a s. 44 neurological assessment by Dr. Jamsheed Desai. Dr. Desai conducted a clinical interview, neurologic, motor and sensory examination and diagnosed the applicant as suffering from persistent headaches secondary to trauma to the head and neck. He recommended prophylactic medication, alternative supplements, physiotherapy and secondary options such as Botox or cervical trigger point injections. Upon reviewing the OCF-18 in dispute, Dr. Desai found that it was not reasonable as the proposed assessment would not result in a significant improvement of the applicant’s post-concussive headaches.

17The applicant has not provided any submissions to refute the respondent’s argument that the applicant’s post-concussive symptoms were most appropriately assessed by her family physicians, specialist Dr. Finkelstein and neurologist Dr. Desai, as opposed to her chiropractor Dr. Hefford. In its submissions, the respondent provides an excerpt from the Chiropractic Act, 1991, S.O. 1991, c. 21, in support of its argument that it is outside the scope of a chiropractor to diagnose brain injuries. The respondent further questions whether it would be Dr. Hefford conducting this ocular assessment and if so, whether this is something he would be qualified to undertake. The applicant provides no submissions on this issue or clarification as to who would be conducting the ocular assessment.

18Further, no CNRs were provided from Prime Healthcare Inc., as evidence of the applicant’s concussion-related treatment with Prime or to support for the need for such an ocular assessment. Although the applicant was already receiving treatment from her family physician and Dr. Finkelstein at the time the OCF-18 was submitted, the OCF-18 does not note this contemporaneous treatment. No evidence was provided from the treating clinic as to how this proposed assessment was warranted in addition to the assessments and treatment provided by Dr. Finkelstein. Without any such supportive medical evidence, I am unable to find that the applicant has met her onus to prove the reasonableness and necessity of the OCF-18 in dispute.

Interest

19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.

Award

20The applicant 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.

21In the matter at hand, I found that the applicant did not establish that she was entitled to the treatment plan in dispute or attendant care benefits. As such, there is nothing in the evidence before me to suggest that the respondent unreasonably withheld or delayed any payment of benefits. Accordingly, the applicant’s request for an award is denied.

ORDER

22For the reasons outlined above, I find that:

i. The applicant is not entitled to attendant care benefits;

ii. The applicant is not entitled the treatment plan in dispute or interest;

iii. The respondent is not liable to pay an award under Regulation 664.