Citation: Caprio v. Travelers Canada, 2023 ONLAT 21-004882/AABS

Licence Appeal Tribunal File Number: 21-004882/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:

Stephanie Caprio

Applicant

and

Travelers Canada

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Tara Sciara, Counsel

For the Respondent:

Tom Yen, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Stephanie Caprio, the applicant, was involved in an automobile accident on July 10, 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, Travelers Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $2,977.36 for occupational therapy, proposed by Entwistle Power in a treatment plan submitted on April 16, 2021?

ii. Is the applicant entitled to $1,697.20 for physiotherapy, proposed by Leah Cumby in a treatment plan submitted on January 19, 2021?

iii. Is the applicant entitled to $1,493.84 for physiotherapy, proposed by Leah Cumby in a treatment plan submitted on February 22, 2021?

iv. Is the applicant entitled to $2,090.93 for physiotherapy, proposed by Leah Cumby in a treatment plan submitted on July 18, 2019?

v. Is the applicant entitled to $2,512.26 for vestibular physiotherapy, proposed by Motion Physio in a treatment plan submitted on February 16, 2022?

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

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

viii. Is the applicant entitled to an award for costs pursuant to Rule 19 of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017) (the “LAT Rules”)?

RESULT

3I find that:

i. the applicant is barred from proceeding with the issue of the treatment plan for occupational therapy, due to non-attendance at a scheduled insurer assessment, pursuant to s. 55(1)2 of the Schedule;

ii. The applicant is entitled to the treatment plan for vestibular physiotherapy, plus interest in accordance with s. 51 of the Schedule;

iii. The applicant is not entitled to the three physiotherapy treatment plans as she has not established that they are reasonable and necessary;

iv. The applicant is not entitled to an award or costs.

procedural issues

Page limit of respondent’s submissions

4The applicant submits that the respondent exceeded the 20-page limit as mandated in the Case Conference Report and Order (“CCRO”) dated March 1, 2022. She requests that pages 21 and 22 of the respondent’s submissions be struck.

5I agree with the applicant that the respondent has exceeded the page limit set out in the CCRO by two pages. However, the applicant has not provided any submissions as to the prejudice she suffered as a result of this breach. In addition, I note that the CCRO contains the standard clause that submissions that exceed the page limits may not be considered. As a result, I am not bound by the page limits as set forth in the CCRO and am not obligated to disregard anything beyond the 20-page limit. Further, I note that the respondent included as part of its submissions, long excerpts from correspondence between the respondent and the applicant’s representative. Such excerpts would total approximately 2 pages of its submissions.

6When weighing procedural fairness and any potential prejudice brought, I find the scales tip in favour of the respondent. The respondent would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded in this manner, as striking the last two pages would prevent the respondent from addressing the issues of an award and costs. As such, I will consider all of the respondent’s written submissions in rendering this decision.

Non-attendance at occupational therapy insurer’s examination

7The applicant also requests that the Tribunal disregard the respondent’s submissions with respect to her non-attendance at a proposed occupational therapy insurer’s examination (“IE”). In its submissions the respondent had argued that the applicant should be barred from proceeding with the occupational therapy treatment plan (“OCF-18”), due to her non-attendance at the scheduled occupational therapy IE. The applicant submits that this issue was improperly raised in the respondent’s submissions and that it should have been raised as a preliminary issue at the case conference. The applicant argues that she was now forced to use most of her allotted eight-page reply submissions to address this issue.

8I am not persuaded by the applicant’s arguments. Although I agree that the respondent did not raise the issue of the applicant’s non-attendance at the case conference, the applicant has not provided any case law in support of the argument that such non-attendance must be specified at the case conference as a preliminary issue and cannot be raised by an insurer at the time of the hearing.

9Moreover, this was not a new issue being raised by the respondent for the first time in its submissions. The applicant was clearly aware of her non-attendance at the scheduled IE and in fact, in her initial submissions had discussed her non-attendance. In paragraphs 32-35 of her initial submissions, the applicant raised the issue of her non-attendance and summarized correspondence between her counsel and the respondent discussing her reasons for not attending the IE. I note that the applicant provided further fulsome submissions on the issue as part of her reply. As such, the applicant has not shown that she has suffered any prejudice by the respondent raising this issue at this stage and I will consider the respondent’s submissions with respect to the non-attendance at the occupational therapy IE.

ANALYSIS

OCF-18 for occupational therapy submitted on April 16, 2021

10I find that the applicant is barred from proceeding with the OCF-18 for occupational therapy (“OT”), due to her non-attendance at a scheduled IE.

11Section 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.

12Section 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. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE.

13The applicant does not dispute that she did not attend the OT IE, however, she argues that the assessment was not reasonably necessary given the medical information she had already provided. Although the applicant does not specifically reference the notice requirements under s. 44(5) of the Schedule, I infer that the applicant is also arguing that the respondent did not provide a medical reason for the IE. I do not find the applicant’s arguments to be persuasive.

14The respondent provided an initial Notice of Examination (“NOE”) dated May 7, 2021. It stated that based on a review of the file and medical documentation, it had concluded the OT treatment plan was not reasonable and necessary. It further referenced the findings of two previous 2019 IE assessments and stated that it would be arranging an IE. I agree with the applicant that this NOE is somewhat confusing as the first part of the letter states that it was not arranging an IE, but the latter part of the letter explains in detail why it would be arranging an IE. However, any confusion about whether an IE was being scheduled was rectified by the numerous letters and emails that were subsequently exchanged between the parties regarding the need for an IE.

15By way of subsequent letters and emails, the applicant’s counsel confirmed that the applicant would not be attending any further IEs. She stated that the respondent already had sufficient medical information in its file to approve the plan, and provided a detailed two page summary of the medical evidence. The applicant’s counsel further requested a fulsome response to all of the points raised and stated that the respondent must “point out what it is about the medical information in the file that does not support the submitted treatment plan”. In an email exchange, the respondent indicated that it had reviewed and considered all the medical information and still required the IE. However, the applicant maintained the need for a detailed response, including a specific reference to the additional medical information provided.

16I agree with the respondent’s submissions that its request for an IE satisfied the “medical and any other reasons” notice requirements of s. 44(5) of the Schedule. In its NOE the respondent summarized the findings of two previous IE assessments and why they did not support the plan. The respondent further indicated in the NOE and subsequent correspondence that it had reviewed the medical documentation received from the applicant, but that it still required an updated IE assessment. I do not find this to be an unreasonable request, particularly as the applicant herself has highlighted that the previous orthopedic and neurological assessments were conducted more than two years previously. I further do not agree with the applicant that the need for medical reasons requires “fulsome”, specific references to the itemized medical documentation provided by the applicant, and find the case cited by the respondent, A.U. v. TD Insurance Meloche Monnex, 2020 CanLII 19570 (ON LAT), persuasive on this issue.

17In that case, the Tribunal held that a request for a s. 44 IE does not necessitate “specific references to medical records or a review of the treating practitioner’s medical opinion” and that the “medical and any other reasons” provision is intentionally broad. I agree with this reasoning and find the respondent’s NOE and correspondence satisfied the notice requirements. While the applicant may have disagreed with the reasons for the request, I find that they are clear and unequivocal.

18Further, I find that the proposed assessment is reasonably necessary. The applicant submits that the proposed OT assessment is not reasonably necessary, as the adjuster already had sufficient medical information on the file to support the need for the OT treatment, and that the adjuster was required to specify why the medical information was lacking. It appears that the applicant is arguing that the respondent had improperly considered the medical evidence. I agree with the respondent that the applicant has not provided a legal basis for her argument that the IE assessment is not reasonably necessary, since the respondent already had sufficient information.

19Rather, when considering whether an IE assessment is reasonably necessary the Tribunal has often adopted the following six factors:¹:

i. The timing of the insurer’s request;

ii. The possible prejudice to the other side;

iii. The number and nature of the previous insurer’s examinations;

iv. The nature of the examinations being requested;

v. Whether there are any new issues being raised in the applicant’s claim that require evaluation; and

vi. whether there is a reasonable nexus between the examination requested and the applicant’s injuries.

20In applying these criteria, I find the respondent’s request was reasonably necessary. Firstly, there is no issue with the timing of the request for an IE as the notice and denial were sent following receipt of the OCF-18 for OT treatment. With respect to prejudice, the applicant has not led any evidence that she would suffer prejudice in attending the IE. In fact, I find that it will only provide further information about the applicant’s medical status. However, there is clearly prejudice to the respondent if it were forced to defend the claim without the benefit of an OT assessment, particularly in this situation where the applicant had obtained such an assessment herself. The respondent would be at a procedural and substantive disadvantage.

21In addition, the applicant has herself noted that the respondent had last conducted its orthopedic and neurological IEs in 2019. As such, there does not appear to be any suggestion that an excessive number of IEs are being requested, particularly as an OT assessment had never been conducted. The OT assessment is directly applicable to the OCF-18 for OT treatment and there is a clear nexus between this examination and the impairments in dispute. The applicant’s argument, that there was already sufficient medical evidence in the file to warrant the treatment, is something that the respondent was permitted to investigate, by way of its proposed IE.

22By requesting the OT IE, the respondent was within its rights under the Schedule. The applicant refused to attend and I do not find that she had a reasonable explanation for this non-attendance nor did she provide compelling evidence that the respondent’s notice was not in compliance with the Schedule. Accordingly, I find that she is statute-barred from proceeding on the issue of the OCF-18 for OT treatment. I note that s. 55(2) of the Schedule permits the Tribunal to allow an insured to apply despite being statute barred under s. 55(1)2. The applicant has not provided any evidence or submissions as to why I should exercise the discretion afforded by s. 55(2), and as such, I decline to do so.

The applicant has not established entitlement to the OCF-18s for physiotherapy treatment

23To receive payment for a treatment and assessment plan under s. 15 and 16 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 that the overall costs of achieving them are reasonable.

24The applicant submitted three OCF-18s for physiotherapy treatment, on November 18, 2019, January 19, 2021 and February 23, 2021. All three OCF-18s included the listed injuries of: WAD-2 with complaint of neck pain and musculoskeletal signs, sprain and strain of lumbar and thoracic spine and a concussion.

25The respondent denied the three OCF-18s on the basis of two prior IE assessments. In an orthopaedic IE dated October 2, 2019, with an addendum dated November 12, 2019, Dr. Rabinovich diagnosed the applicant with WAD-2, cervical myofascial strain and bilateral shoulder contusion and found that further facility-based treatment was not required. In a neurological IE report dated November 12, 2019, Dr. Kucher noted the applicant’s subjective complaints of headaches, but found that the applicant did not sustain any objective neurologic impairment as a result of the accident.

26The applicant has provided very limited submissions as to the reasonableness and necessity of the proposed physiotherapy treatment. The applicant simply states that “ongoing and/or declining impairments warrant treatment, therefore making the proposed treatment reasonable and necessary.” She also states that the OCF-18 forms themselves outline the purpose and benefits of the treatment, and that her family physician, the acquired brain clinic and her treating psychologist support such treatment.

27I do not find the applicant’s arguments to be persuasive. Firstly, I agree with the respondent’s submissions and cited case law that a treatment plan for a medical benefit, without more, is not enough to establish entitlement. The submitted OCF-18s do not include additional information that would provide support for the reasonableness and necessity of the treatment, such as detailed progress reports or summaries of treatment and progress. From the OCF-18s, it is unclear what portion of the physiotherapy treatment is meant to address the applicant’s pain complaints/strain and strain type injuries versus the post-concussive symptoms, which make up the majority of her submissions on the medical evidence. Further, the clinical notes and records (“CNRs”) of the applicant’s physiotherapy clinic submitted by the applicant do not provide detailed information as to the applicant’s progress and were only provided for the period from July to September 2019. Finally, the applicant has provided no submissions on how the goals of the OCF-18s were being met to a reasonable degree, particularly with respect to the two OCF-18 proposing physiotherapy treatment two and three years post-accident.

28Moreover, the applicant has not directed me to any specific medical evidence supporting the need for ongoing physiotherapy treatment. Rather, she makes the general assertion that in addition to her treating physiotherapy clinic, her family physician, the acquired brain clinic and her treating psychologist support such treatment. However, the applicant has not submitted any reports or treatment records from an acquired brain clinic, and she does not direct me to any evidence as to their recommendations for such physiotherapy. The s. 25 assessment from the applicant’s psychologist notes that the applicant attends physiotherapy and massage, but I do not see any specific recommendation for such treatment.

29I similarly do not see evidence to substantiate the applicant’s claim that her family physician was recommending ongoing physiotherapy. From my review of the CNRs of Dr. Greenspoon, it appears the doctor specifically recommended physiotherapy very soon after the accident, on August 1, 2019. However, the applicant does not direct me to subsequent entries where Dr. Greenspoon continued to recommend such treatment months and years later. In multiple entries Dr. Greenspoon notes that the applicant attends physiotherapy, however, in my view such a notation is different from a specific recommendation. Rather, Dr. Greenspoon makes a number of different treatment recommendations, including referrals to a neurologist, ENT, psychologist, neuro-ophthalmologist and reference to a concussion clinic. Dr. Greenspoon further makes note on November 30, 2021, that the applicant had been referred to vestibular physiotherapy by the concussion clinic. However, I distinguish this from the physiotherapy recommended in these three treatment plans, as the applicant submitted a separate OCF-18 for vestibular physiotherapy from a different clinic, discussed below.

30The applicant bears the onus of proof to establish that the proposed treatment is reasonable and necessary. As she has not provided specific submissions or sufficient medical evidence supporting the need for ongoing physiotherapy, I find that the applicant has not met her onus to establish entitlement to the three OCF-18s for physiotherapy.

The applicant has established that the OCF-18 for vestibular physiotherapy is reasonable and necessary

31The applicant submitted an OCF-18 on February 16, 2022, from Motion Physio, for 16 sessions of physical rehabilitation. The stated injuries included concussion, WAD-3 with neurological signs, disorders of vestibular function, tendency to fall, other chronic pain, chronic post-traumatic headaches.

32The respondent denied the OCF-18 by way of letter dated February 18, 2022. The respondent noted the applicant’s non-attendance at prior psychology, occupational therapy and neuropsychology IE assessments and further noted that based on the previous IE assessments of Dr. Rabinovitch and Dr. Kucher and the lack of diagnostic imaging supporting neurological symptoms, the proposed treatment was not reasonable and necessary. In its submissions, the respondent also argues that the applicant has not established that she sustained a concussion as a result of the subject accident and argues that the surveillance it conducted did not show that the applicant suffered from post-concussive symptoms.

33I find that the applicant has adduced sufficient evidence that the proposed vestibular physiotherapy is reasonable and necessary.

34The CNRs of Dr. Greenspoon indicate that the applicant consistently reported neurological symptoms post-accident, which Dr. Greenspoon undertook to investigate. The applicant began to complain of headaches within a week of the accident and her physiotherapist raised the issue of a possible concussion two weeks after the accident, which was discussed with Dr. Greenspoon. The applicant continued to raise post-concussive symptoms with her treating physiotherapy clinic. The CNR entries of Dr. Greenspoon indicate multiple references to post-concussive symptoms throughout 2020 and 2021. On July 9, 2020, Dr. Greenspoon referred the applicant for a neurology consult. In a September 10, 2020, consulting letter, Dr. Raymond Lo noted the applicant’s post-accident reports of occipital headaches, scalp tenderness, intermittent dizziness brought on by head movements., photophobia and blurred vision. Dr. Lo found that the applicant’s neurological examination was normal, but that her symptoms could suggest vestibular dysfunction.

35Dr. Greenspoon continued to investigate the applicant’s neurological symptoms and in 2021, referred her for an MRI, to an ENT, and a neuro-ophthalmologist. In the referral letters, Dr. Greenspoon specifically references the applicant’s symptoms of dizziness, balance issues and light sensitivity post-accident and makes multiple references to post-concussive syndrome. In a CNR entry dated July 6, 2021, Dr. Greenspoon notes that the applicant was attending an acquired brain injury clinic and that they may be able to discern what investigations are best going forward.

36This appears to have led to the recommendation for the treatment proposed in the OCF-18 in dispute. In the Additional Comments section of the OCF-18, it was noted that the applicant had been referred to Motion Physio by the Integrated Adult Concussions Clinic to receive physiotherapy specifically for her concussion symptoms. It was also noted that Dr. Munitz, physiatrist, had recommended vestibular physiotherapy. Accordingly, I find that the applicant has led sufficient evidence that she has suffered from neurological symptoms as a result of the accident that have been investigated for years by her family physician and multiple specialists. The proposed vestibular treatment appears to have been specifically recommended by the concussion clinic the applicant was attending and as such, I find that the applicant has established its reasonableness and necessity.

37I further do not find the respondent’s submissions on the issue to be persuasive. Although the respondent relies in part on its surveillance reports, I agree with the applicant’s submissions that the respondent’s surveillance provides a limited snapshot of the applicant’s activities and the reports are not especially helpful in assessing symptoms such as headaches, dizziness, fogginess. Further, although the respondent raises the applicant’s non-attendance at prior IEs, I agree with the applicant that the respondent did not request an IE with respect to this treatment plan. Although the applicant did not attend the properly scheduled OT assessment, the respondent has not established how this affects its assessment of the applicant’s neurological diagnosis.

38Moreover, the respondent makes passing reference to the applicant’s prior non-attendance at a psychological and neuropsychological assessment. However, the applicant submits that both of these assessments were related to an issue not in dispute at this hearing and that as such, the issue of her non-attendance on those occasions is moot. Finally, although the respondent’s neurological IE assessor Dr. Rabinovich found in 2019 that the applicant did not sustain any objective neurologic impairment as a result of the accident, I find that the applicant has adduced sufficient evidence that she continues to suffer from accident-related neurological symptoms post-2019.

39For the foregoing reasons I find that the applicant has established that the proposed vestibular physiotherapy is reasonable and necessary.

The respondent is not liable to pay an award under s. 10 of Regulation 664.

40Under 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. The applicant submits that she is entitled to an award as the respondent has refused to consider any additional medical information provided by the applicant and continued to deny treatment plans based on outdated 2019 IE reports.

41With respect to the applicant’s submissions that the respondent refused to consider new medical information when assessing her file, I do not find that the applicant has established such a refusal. The applicant appears to be basing this argument in part on the fact that her counsel had requested multiple times that the respondent provide detailed and specific responses to itemized lists of medical evidence. However, I do not find that failing to provide a detailed response to the applicant’s letters, is evidence of a refusal to consider new evidence. The applicant also references an adjuster’s log note entry where the new adjuster indicated they had not yet read the entire file. However, the adjuster goes on to state that they will read the file in full and call her with next steps. I do not see this as evidence of a refusal to consider medical evidence. Finally, I agree with the respondent that attempts had been made to schedule various IE assessments, which the applicant refused to attend. This would have impeded its ability to obtain and consider additional medical information.

42The applicant also submits that the respondent improperly delayed in approving a treatment plan for a neuropsychological and psychological assessment and psychological treatment. She argues that the OCF-18 was denied on the basis of the 2019 orthopaedic and neurological IEs, despite the applicant’s removal from the MIG on psychological grounds and the respondent’s psychological assessor’s findings of a psychological impairment. However, I agree with the respondent that this treatment plan is not an issue in dispute in this hearing.

43Finally, although I found that the applicant is entitled to the OCF-18 for vestibular physiotherapy, it is well-settled that insurers are not held to a standard of perfection in their adjusting of claims. An award is meant to act as a deterrent against bad faith conduct by an insurer – not as punishment for reaching an incorrect decision. As per my reasons noted above, I find that an award is not appropriate.

The applicant is not entitled to costs

44The applicant submits that she is entitled to costs on the basis that the respondent continued to refuse to consider medical information, denied ongoing treatment recommendations and refused to consider information provided by her counsel. As such, the applicant contends that she was forced to repeatedly provide medical information the respondent already had, and reiterate the medical evidence and her position, leading to excessive and unwarranted costs.

45Rule 19.1 of the LAT Rules states that a party may request costs where they believe that the other party has acted unreasonably, frivolously, vexatiously or in bad faith in a proceeding. I find that the test is not met in this case.

46I agree with the respondent that the threshold for the consideration of costs is high. Although the applicant alleges errors, such as repeated denials or requests for information, and the lack of response from the respondent, I do not find that the applicant has led sufficient evidence that the respondent’s behaviour has met this high threshold. As such, I find that costs are not warranted

ORDER

47For the reasons outlined above, I find that:

i. the applicant is barred from proceeding with the OCF-18 for occupational therapy, due to non-attendance at the scheduled insurer’s assessment, pursuant to s. 55(1)2 of the Schedule;

ii. The applicant is entitled to the OCF-18 for vestibular physiotherapy, plus interest in accordance with s. 51 of the Schedule;

iii. The applicant is not entitled to the remaining OCF-18s for physiotherapy treatment; and

iv. The applicant is not entitled to an award or costs.

Released: May 25, 2023

__________________________

Ulana Pahuta

Adjudicator

Footnotes

1. 117-005291/AABS v Travelers Canada, 2018 CanLII 13172 (ON LAT), 17-000020 v. State Farm Insurance Company, 2017 CarswellOnt 11159