Citation: Vila v. Aviva Insurance Company, 2023 ONLAT 20-004742/AABS

Licence Appeal Tribunal File Number: 20-004742/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:

Sevim Vila

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Donata Di Iorio, Counsel

For the Respondent:

Nathalie Rosenthall, Counsel

Kevin So, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Sevim Vila, the applicant, was involved in an automobile accident on March 6, 2018, 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 Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to the assessments, treatment, or benefits proposed by Prime Healthcare, as follows:

i. $3,792.72 for physiotherapy treatment, in a treatment plan submitted on May 3, 2018;

ii. $2,136.00 for physiotherapy treatment, in a treatment plan submitted on August 21, 2018;

iii. $1,749.28 for physiotherapy treatment, in a treatment plan submitted on October 12, 2018;

iv. $1,301.96 for chiropractic treatment, in a treatment plan submitted on November 13, 2018;

v. $278.42 for physiotherapy treatment, in a treatment plan submitted on November 21, 2018;

vi. $550.81 ($6,925.21 submitted less $6,374.40 approved) for psychological treatment, in a treatment plan submitted on February 28, 2019;

vii. $214.70 for physiotherapy treatment, in a treatment plan submitted on June 26, 2019;

viii. $98.89 ($558.10 submitted less $459.21 approved) for assistive devices, in a treatment plan submitted on October 24, 2019;

ix. $1,017.00 ($2,147.00 submitted less $1,130.00 approved) for psychological treatment, in a treatment plan submitted on February 19, 2020;

x. $1,470.02 for physiotherapy treatment, in a treatment plan submitted on February 25, 2020;

xi. $1,670.34 ($4,136.16 submitted less $2,465.82 approved) for counselling sessions, in a treatment plan submitted on December 14, 2021;

xii. $1,563.72 for shockwave therapy, in a treatment plan submitted on December 14, 2021;

xiii. $4,631.29 for assistive devices ($4,875.41 submitted less $244.12 approved), in a treatment plan submitted on March 7, 2022; and

xiv. $2,187.72 ($12,759.68 submitted less $10,571.96 approved) for rehabilitation support worker treatment sessions, in a treatment plan submitted on March 22, 2022.

xv. $1,230.92 for an attendant care assessment, in a treatment plan submitted on May 7, 2018;

xvi. $1,499.35 for a functional impairment assessment, in a treatment plan submitted on October 31, 2018;

xvii. $2,000.00 for a chronic pain assessment, in a treatment plan submitted on December 10, 2018;

xviii. $9,288.60 for a psychological, chiropractic, massage, acupuncture, and physiotherapy assessment, submitted on January 8, 2020; and

xix. $3,069.52 for 21 hours of translation services for a psychological assessment, submitted on December 14, 2021.

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

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

RESULT

3The applicant is entitled to the following, plus interest in accordance with s. 51 of the Schedule:

1. $214.70 for translation services in the treatment plan submitted on June 26, 2019;

2. $63.72 for the submission of the treatment plan dated October 24, 2019;

3. $1,205.92 for an attendant care assessment in the treatment plan submitted on May 7, 2018; and

4. $2,000.00 for a chronic pain assessment in the treatment plan submitted on December 10, 2018.

4The applicant is not entitled to the remainder of the treatment plans in dispute.

5The respondent is liable to pay an award under s. 10 of O. Reg. 664 in the amount of $250.00, plus applicable interest.

ANALYSIS

Overview

6To 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.

7I have listed the issues in dispute as they are identified by the applicant in her submissions, but I have grouped the treatment plans below according to kind.

$3,792.72 for physiotherapy treatment, in a treatment plan submitted on May 3, 2018

$2,136.00 for physiotherapy treatment, in a treatment plan submitted on August 21, 2018

$1,749.28 for physiotherapy treatment, in a treatment plan submitted on October 12, 2018

$1,301.96 for chiropractic treatment, in a treatment plan submitted on November 13, 2018

$1,470.02 for physiotherapy treatment, in a treatment plan submitted on February 25, 2020

8The applicant does not make specific submissions in support of these treatment plans. She argues generally that she deserves to recover completely and fully, “something that might be possible through physical therapies and psychological counselling”. The respondent submits that the applicant has failed to prove on a balance of probabilities that the OCF-18s are reasonable and necessary. The respondent relies on various s. 44 reports of Dr. Sharma, who opined that the proposed facility-based treatment was not reasonable or necessary.

9The applicant went to the hospital immediately after the accident, as she was having pain in her chest. She was given Advil and Tylenol. She went to the hospital again on March 13, 2018. She was noted as being very anxious, and having ongoing chest pain and syncope. A CT scan was conducted of her chest to rule out any fractures. She was provided with Ativan and Advil and discharged home. The imaging reports have not been submitted as evidence.

10The applicant has provided records from her family physician, Dr. Murray, from March to May 2018. During this time, the applicant was diagnosed with PTSD and generalized anxiety disorder, was counselled by Dr. Murray, and was prescribed Clonazepam, Zyprexa, Trazodone, and Ativan. At no point did the applicant mention any physical injuries to Dr. Murray. No further treatment records have been provided.

11The applicant relies on the s. 44 assessment of Dr. Bardai, general practitioner, from July 12, 2019. She advised Dr. Bardai that she was experiencing head and neck pain with radiation into her right shoulder, back pain, a skin crawling sensation in her lower extremities at night, and significant anxiety and depressive symptoms. Dr. Bardai noted that the applicant had significant insomnia, but this was unrelated to pain and physical discomfort. Dr. Bardai diagnosed the applicant with WAD I, myofascial pain of the head and neck, right periscapular strain, right lateral epicondylitis, right deQuervain’s tenosynovitis, bilateral medial collateral ligament sprain, bilateral greater trochanteric bursitis, bilateral SI joint dysfunction, neuropathic pain in the lower extremities, and psychological symptoms suspicious for anxiety/depressive illness. She noted that the applicant had received physiotherapy, massage therapy, acupuncture, and TENS. However, the applicant reported no benefits from the treatment either emotionally or physically. Dr. Bardai did not make any treatment recommendations.

12Aside from the OCF-18s themselves, the only other evidence provided by the applicant that speaks to her physical condition is the report of Dr. Grigory Karmy, chronic pain physician, of November 6, 2019. Dr. Karmy diagnosed fibromyalgia, persisting symptoms following a mild traumatic brain injury, chronic mechanical neck pain, mid back pain, left shoulder pain, right shoulder pain, lower back pain, bilateral knee pain, and bilateral ankle pain, chronic pain syndrome, sleep disorder, and mood disorder. Dr. Karmy stated that the applicant found treatments beneficial in alleviating her pain, however the effects were temporary, and she had not experienced long-term improvement in her symptoms and functionality. However, he recommended physiotherapy, an active exercise program, acupuncture, massage, chiropractic adjustments, and psychological treatments. He also recommended an MRI of the lumbar spine and ultrasound to the bilateral shoulders and knees.

13I have difficulty accepting the conclusions in Dr. Karmy’s report, especially in the absence of corroborating evidence. He noted that soon after the accident, the applicant visited her family physician with complaints of widespread musculoskeletal pain and headaches. Dr. Karmy stated that she was prescribed pain medication and muscle relaxants and it was recommended that she begin rehabilitation therapy. None of that information is borne out by the clinical notes and records of Dr. Murray, and those same records were apparently reviewed by Dr. Karmy. There are no records of the applicant making physical complaints to Dr. Murray, or physical therapy being recommended. In fact, upon review of the prescription summaries provided by the applicant, which go up to March 2021, it appears that she was never prescribed any medication for pain. All of the medication prescribed was for her psychological conditions. For that reason, I also do not accept the applicant’s submission that the prescription summaries show that she continues to take medication to “allow her to manage her pain symptoms”.

14The description of the applicant’s injuries indicated by Dr. Karmy are different than the ones described by Dr. Bardai. Dr. Karmy notes that the applicant was experiencing headaches, neck pain, bilateral shoulder pain (more on the left), mid and lower back pain, bilateral knee pain, bilateral ankle pain, sleep disturbances caused by pain, anxiety and mood problems, and cognitive problems. However, the shoulder pain noted by Dr. Bardai was to the right, and the left shoulder was not mentioned. The bilateral knee and ankle pain was described by Dr. Karmy as being aggravated with activity (e.g. walking and standing), however the pain sensations in the applicant’s lower extremities noted by Dr. Bardai occurred at night, and were associated with restless legs. The applicant also advised Dr. Bardai that her sleep disturbances were due to psychological difficulties and were not due to pain. I note that these assessments were completed within only a few months of each other.

15I also find it difficult to reconcile Dr. Karmy’s recommendation for multiple modalities of physical treatment when the applicant advised Dr. Karmy that treatment was only temporarily beneficial, and the applicant advised Dr. Bardai that she received no benefits from treatment. For all of these reasons, I assign Dr. Karmy’s report less weight.

16The applicant underwent a s. 44 assessment by Dr. Sangita Sharma, general practitioner, on September 12, 2018. Dr. Sharma noted that the applicant was experiencing headaches, cervical pain with radiation into her left arm, and lumbosacral pain with radiation into her left leg. Her chest pain had resolved, and she did not have any other ongoing physical symptoms. Dr. Sharma opined that the applicant had sustained predominantly soft tissue injuries and recommended that she incorporate core strengthening and a cardiovascular program into her physical activity. She did not believe that the proposed treatment plans for physical therapy were reasonable and necessary. Dr. Sharma’s opinion did not change after another assessment in February 2020; even though at that point the applicant had developed chronic pain syndrome, Dr. Sharma’s opinion was that she had reached maximum medical recovery and facility-based rehabilitation was not required.

17The only other evidence in support of the need for the proposed treatment are the treatment plans themselves. They do not contain much information about the applicant’s progress with therapy, or whether physical therapy is assisting the applicant with managing her pain or meeting the other goals listed in the treatment plans. The need for treatment is incredibly difficult to assess without the clinical notes and records from the applicant’s treatment providers.

18The applicant submits that she has incurred some of the costs of the treatment plans in dispute, and that the benefit of these treatments has been a marked improvement in her injuries. The fact that some of the treatment was incurred does not automatically mean that it was beneficial, or that it was reasonable or necessary at the time. Further evidence is required in order to prove that claim, which the applicant has not provided. Submissions are not evidence. If anything, it appears based on the reports of Dr. Karmy and Dr. Bardai that the treatment was not overly helpful, if at all.

19For all of the above reasons, I find that the applicant has not proven on a balance of probabilities that the above treatment plans for physiotherapy and chiropractic treatment are reasonable and necessary.

$9,288.60 for a psychological, chiropractic, massage, acupuncture, and physiotherapy assessment, submitted on January 8, 2020

20The treatment plan in dispute is actually for multidisciplinary chronic pain treatment. Upon review of the OCF-18, the items listed were for a psychological assessment and treatment, physiotherapy assessment and treatment, chiropractic treatment, acupuncture, massage therapy, and a follow-up assessment with Dr. Karmy. The respondent approved $2,278.46 on April 20, 2020, for the psychological services, but denied the rest of the treatment plan. Only $6,950.14 is in dispute.

21For the same reasons as I have indicated above, I find that the applicant has failed to prove on a balance of probabilities that physical facility-based treatment is reasonable and necessary. I have also not been provided with a reason as to why a re-assessment with Dr. Karmy is warranted.

22I find that the denied portion of the treatment plan is not payable.

$278.42 for physiotherapy treatment, in a treatment plan submitted on November 21, 2018

$214.70 for physiotherapy treatment, in a treatment plan submitted on June 26, 2019

23The applicant incorrectly describes these treatment plans as “physiotherapy treatment” in her list of issues in dispute. Upon review of the OCF-18s, the treatment plan submitted on November 21, 2018, was for an “interpreter in order to proceed with the approved psychological assessment”. The treatment plan submitted on June 26, 2019, was for an “interpreter in order to proceed with approved driving Rehabilitation Assessment”.

24An administrator at Prime Health Care, Ms. Moisseyenko, reached out to the respondent on May 28, 2019, advising that the treatment plan submitted November 21, 2018, was denied, but the applicant required a translator during the approved assessment and counselling. Ms. Moisseyenko requested that the respondent approve the OCF-18. The respondent explained that interpretation services should be included in an OCF-18 for a proposed assessment or treatment. They asked that if the interpretation expenses were incurred, that Ms. Moisseyenko submit proof of same and they would consider payment. Ms. Moisseyenko provided a copy of the invoice via email in the amount of $214.70, and the respondent requested that she submit the invoice via HCAI for payment.

25Translation services for the completion of a psychological assessment are reasonable. Further, as the respondent has agreed to pay for the treatment plan of $214.70, I find that the applicant is entitled to it, if it has not been paid yet.

26There is a lack of clarity regarding the treatment plan for $278.42. From what I can glean from the email correspondence between the respondent and Prime Health Care, it seems that Prime Health Care simply resubmitted an OCF-18 in the amount of the actual invoice of the services proposed in the first treatment plan, which the respondent agreed to pay. The applicant provided an account summary from Prime Health Care which listed paid and outstanding balances on treatment provided. The invoice for $214.70 is listed, but there is nothing in the amount of $278.42.

27The applicant makes no submissions regarding either of these treatment plans. Even if I am wrong, and the treatment plans relate to translation services on two separate occasions, I find that in the absence of any other explanation or evidence as to the reasonableness and necessity of the treatment plan for $278.42, it is not payable.

$1,017.00 ($2,147.00 submitted less $1,130.00 approved) for psychological treatment, in a treatment plan submitted on February 19, 2020

28This treatment plan was also submitted for translation services, this time for assistance during driving counselling sessions. The proposed hourly rate for translation was $190. The respondent agreed to pay $100 per hour instead, as it felt that $190 was excessive.

29The applicant has not made any submissions or provided any evidence to justify the higher hourly rate. I find that the applicant has not met her burden of proof in this regard, and the denied portion of the treatment plan is not payable.

$550.81 ($6,925.21 submitted less $6,374.40 approved) for psychological treatment, in a treatment plan submitted on February 28, 2019

30Neither party has provided any explanation as to what the $550.81 pertains to in the treatment plan of February 28, 2019. Based on the account summary from Prime Health Care, it appears that the applicant did not incur this amount when receiving treatment under the remainder of this treatment plan. In any event, I cannot determine if this amount is reasonable and necessary without knowing what it is for. The burden is on the applicant, and I find that she has not discharged her burden for the denied portion of this treatment plan.

$1,670.34 ($4,136.16 submitted less $2,465.82 approved) for counselling sessions, in a treatment plan submitted on December 14, 2021

31This treatment plan was for psychotherapy with Tatiana Klopina, a psychotherapist. The respondent agreed to pay $99.75 per hour, as opposed to the $179.29 claimed. The respondent also offered to discuss the rate with the treatment provider. The respondent submits that Ms. Klopina never contacted them to discuss the rate further.

32The maximum hourly rates for services provided through the Schedule is governed by the Superintendent’s Guideline No. 03/14. The Guideline states that where an occupation is not specifically listed, that provider’s maximum hourly rate is not covered by the Guideline and the amount payable is to be determined by the parties.

33A psychotherapist is not an occupation specifically listed in the Guideline. The respondent relies on Hawes v. Aviva General Insurance Company, 2022 CanLII 70525, and argues that a contextual approach should be taken to determine whether an insurer is obligated to pay a psychotherapist the same rate that a psychologist is entitled to. I agree that each case should turn on its facts, which may include the therapist’s credentials, skills, training, experience, and type of therapy to be administered. This is not to be taken as an exhaustive list.

34The onus is on the applicant to demonstrate that she is entitled to the higher hourly rate. The applicant makes no submissions with respect to this treatment plan, nor does she provide any evidence to suggest why the appropriate hourly rate for Ms. Klopina should be $179.29. I find that she has failed to prove on a balance of probabilities that the denied portion of the treatment plan is reasonable and necessary.

$3,069.52 for 21 hours of translation services for a psychological assessment, submitted on December 14, 2021

35The applicant did not make any submissions regarding this treatment plan, provide any evidence, or even provide a copy of the OCF-18 itself. The respondent submits that in its denial letter, it requested further details regarding the specifics of the psychological assessment that the translation services were supposed to pertain to, including a breakdown of services, the provider, and the time to be spent. It submits that the applicant failed to provide any further information.

36I am entirely in the dark with respect to this treatment plan. The applicant has failed to satisfy her onus in showing that this treatment plan is reasonable and necessary, and accordingly I find that is not payable.

$98.89 ($558.10 submitted less $459.21 approved) for assistive devices, in a treatment plan submitted on October 24, 2019

37This treatment plan was for an English-Albanian voice translator for use during psychological treatment sessions. The applicant indicated that $98.89 was denied by the respondent. The respondent submits that only $63.72 was denied, which pertained to “documentation, support activity for claim form”. Upon review of the OCF-18 and Prime Health Care’s account summary, it appears that the respondent is correct, and the only outstanding amount is $63.72.

38The respondent submits that the applicant has not provided reasons as to why the balance of the treatment plan is reasonable and necessary, which is true. However, s. 25(1)3 of the Schedule states that where an insurer has approved any of the goods in a treatment plan, the insurer shall pay reasonable fees incurred by an insured person for a health practitioner to review and approve the treatment plan. This type of cost is inherently reasonable as per the Schedule. The OCF-18 was submitted by a physiotherapist, who claimed less than their allowable hourly rate and the $200 maximum under the Superintendent’s Guideline No. 03/14 for the task. The rest of the treatment plan was approved, and the respondent has not provided any reason as to why it was not prepared to pay for the cost of submitting the treatment plan, or why the amount claimed was unreasonable.

39I accordingly find that the remaining $63.72 in the treatment plan submitted October 24, 2019, is payable.

$4,631.29 for assistive devices ($4,875.41 submitted less $244.12 approved), in a treatment plan submitted on March 7, 2022

40This treatment plan was for a computer, brain-sensing headband for meditation, ergonomic pillow, bath scrubber, cognitive workbook, Lumosity subscription (a brain training app), Apple watch, craft allowance, four meal boxes, and the cost to complete the OCF-18. Although the applicant listed the amount in dispute as $4,631.29, upon review of the OCF-18 and the denial letter, it appears that the respondent approved the ergonomic pillow, long handled bath scrubber, cognitive workbook, craft allowance, and completion of the OCF-18, for a total amount of $583.12 including HST. The correct amount in dispute is therefore $4,292.29.

41The applicant does not make any submissions in support of this treatment plan specifically. The respondent submits that the denial was based on the s. 44 reports of Dr. Ariel Zielinsky, psychiatrist, and Rodney Pritchett, occupational therapist. The respondent argues that the applicant has failed to produce documentation to prove why the items are reasonable and necessary, and that she has not made any submissions or provided evidence to contest the findings of the s. 44 assessors.

42The only evidence before me in support of the treatment plan is the treatment plan itself. The treatment plan refers to an occupational therapy report from February 2022 as the basis for the items recommended in the treatment plan. That report is not before me, and the applicant makes no reference to it in her submissions. The treatment plan contains a half-page summary of the recommendations in the report, however the explanations for each of the items are not fulsome.

43Mr. Pritchett states that there is no evidence as to why the therapist recommended a laptop computer for video social interactions, or an Apple Watch to track activity, when the applicant could use the phone she already owns. He notes that the proposed meditation device is not medically certified, and that there is no reason why the applicant could not instead be provided with education regarding relaxation techniques. He further states that Lumosity has been found to provide misleading claims related to enhanced functioning, and that other cognitive remediation could be provided by using the recommended (and approved) cognitive workbooks. Finally, he notes that the applicant is capable of engaging in graded meal preparation, which can be incorporated into treatment, but that she could use her own food for this and does not require a meal box service. I find Mr. Pritchett’s reasoning sound, especially in the absence of any evidence or argument to the contrary.

44I accordingly find that the applicant has not proven on a balance of probabilities that the denied items in this treatment plan are reasonable and necessary.

$1,563.72 for shockwave therapy, in a treatment plan submitted on December 14, 2021

45The applicant has not made any submissions regarding this specific treatment plan. The respondent relies on Dr. Sharma’s opinion in her March 2020 report that continued facility-based treatment was not recommended. The respondent also submits that the applicant has not produced corroborating medical documentation indicating that this treatment plan is reasonable and necessary.

46No physician has ever recommended shockwave therapy as treatment. Even Dr. Karmy did not list shockwave therapy as a recommended treatment in his report. The OCF-18 proposing this therapy includes an explanation of what shockwave therapy entails generally. However, there is no information provided as to how this treatment would benefit the applicant specifically. I agree with the respondent that there is no corroborating evidence in support of this treatment plan.

47I find that the applicant has not proven on a balance of probabilities that this treatment plan is reasonable and necessary.

$2,187.72 ($12,759.68 submitted less $10,571.96 approved) for rehabilitation support worker treatment sessions, in a treatment plan submitted on March 22, 2022

48The denied portion of the treatment plan relates to planning ($1,068.96), brokerage ($1,068.84), and personal protective equipment (“PPE”) ($49.92). The applicant has not made any submissions in support of this treatment plan or these denied items. In fact, the applicant failed to list this item as an issue in dispute in her submissions, although she did not indicate that she was withdrawing it.

49The respondent submits that the applicant has not provided any reasons or evidence as to why the denied items are reasonable and necessary, or what the items were for, especially the brokerage fees. The respondent relies on Gordon-Tennant v. Aviva General Insurance, 2021 CanLII 45660 (ON LAT), in which the Tribunal stated that where there is no breakdown or explanation of a “planning” expense, or why the fee is required in addition to the treatment, the applicant has not met their burden of showing that the treatment plan is reasonable and necessary.

50In its submissions, the respondent confusingly also takes issue with the item listed as “preparation” for $1,068.96, which was never in dispute. The respondent acknowledges that the amount in dispute is $2,187.72. If “preparation” was included as an issue, the amount in dispute would be $3,256.68. The respondent’s letter partially approving the treatment plan specifically states that because they had approved costs for “preparation”, the cost for “planning” would not be payable. Both of these items in the treatment plan were for $1,068.96. It appears that the respondent may be under the mistaken belief that this is one of the issues in dispute when it is not. Even if I am incorrect in that assumption, the respondent cannot change its mind and deny part of a treatment plan in its responding submissions for the first time. For the sake of clarity, I find that the cost for “preparation” is still payable, as the respondent originally agreed.

51However, I find that in the absence of any explanation from the applicant as to how the items of “planning” and “preparation” differ, the cost for “planning” is not reasonable and necessary.

52With respect to the brokerage fees, the treatment plan indicates that the brokerage fees are for the purpose of the rehabilitation counselor communicating with the occupational therapist. The applicant has not provided any explanation as to why this is required. I find that she has failed to prove that the brokerage fee is reasonable and necessary.

53The respondent argues that PPE is considered “expenses related to professional services” under the Schedule, and “administration costs, overhead, and related costs, fees, expenses, charges and surcharges” pursuant to the Guideline. The respondent states that it should not be required to pay for charges that have the result of increasing the effective hourly rates of the service providers.

54The maximum hourly rate under the Guideline for a rehabilitation counsellor is $89.07, which is what was claimed and approved for the treatment itself. I find that PPE is captured by administrative and overhead costs, and including the cost for the PPE would increase the provider’s hourly rate beyond the maximum listed in the Guideline. In the absence of any evidence or argument from the applicant on this issue, I agree with the respondent and find that the expense for PPE is not payable.

55In summary, I find that the applicant has not proven on a balance of probabilities that the denied portion of this treatment plan is reasonable and necessary.

$1,230.92 for an attendant care assessment, in a treatment plan submitted on May 7, 2018

56I find that the proposed attendant care assessment is reasonable and necessary.

57The applicant does not make any specific submissions regarding this assessment. She does not explain in her submissions whether she has difficulty completing her self-care tasks. The respondent makes note of this in its submissions, and also relies on the report of Dr. Sharma in maintaining its denial. Further, the respondent relies on its own attendant care assessment, conducted by occupational therapist Amy Hanes on January 29, 2019. Ms. Hanes completed a Form 1 and opined that the applicant did not require an aide or assistant to complete her personal care tasks.

58Ms. Hanes indicated in her report that the applicant had some difficulty preparing meals, and that she mostly orders out, eats ready made meals, or receives assistance from friends with meal preparation. Mr. Pritchett, another s. 44 occupational therapist, noted that the applicant often forgets appointments, has left the stove on, and has forgotten to pay bills. Even Dr. Sharma noted that the applicant was having difficulty with meal preparation and that she was utilizing the assistance of a personal support worker.

59I have not been asked to decide whether the applicant requires attendant care services. However, I find that based on the evidence before me, the applicant may have some difficulties completing her activities of daily living that warrant an attendant care assessment.

60Clearly, the respondent also felt that it was reasonable for the applicant’s attendant care needs to be assessed. It cannot be said that an assessment is only warranted when completed by an insurer’s chosen assessor.

61One of the items in the treatment plan is for the provider’s mileage, in the amount of $25.00. I find that mileage is not payable, as there is no provision in the Schedule or Guidelines for the payment of mileage expenses for service providers.¹ The other components of the treatment plan are not unreasonable on their face, and the respondent has not argued that any of them are. I find that of the $1,230.92 proposed, $1,205.92 is payable.

62The respondent further submits that as the assessment has not been incurred, s. 25(1)4 of the Schedule does not apply. I agree that the obligation to pay for this assessment has not been automatically triggered by s. 25(1)4 as it does not appear to have been incurred. However, as I have found this assessment to be reasonable and necessary, it will be payable if it is incurred.

$1,499.35 for a functional impairment assessment, in a treatment plan submitted on October 31, 2018

63This treatment plan is for a functional abilities assessment to be completed by Dr. Glenn Uy, a chiropractor. The applicant has not made any submissions in support of this treatment plan. She has not explained the reasoning behind the request for a functional impairment assessment, nor why each of the items listed in the treatment plan are reasonable and necessary. The goal of the treatment plan is noted to be “to assess the patient’s impairments and assess their limitations as it related to pre-accident levels of workplace and in-home demands”. The functional goal was for the applicant to return to activities of normal living.

64As noted above, there is a dearth of evidence pertaining to the applicant’s physical injuries, and the treatment she received. Dr. Bardai, whose report the applicant relies on, even states that she did not suffer a substantial physical inability to perform the essential tasks of her employment. It appears that the applicant’s psychological injuries were what were preventing her from returning to work, and not her physical condition. The only evidence that could potentially assist the applicant is the report of Dr. Karmy, which I found to be problematic and accordingly assign little weight to. In any event, Dr. Karmy did not recommend a functional abilities assessment.

65Ultimately, the applicant has not provided compelling evidence that the proposed functional abilities assessment is warranted. She has not met her burden in proving that the assessment is reasonable and necessary.

$2,000.00 for a chronic pain assessment, in a treatment plan submitted on December 10, 2018

66I find that the chronic pain assessment is reasonable and necessary.

67This treatment plan was for the chronic pain assessment that was completed by Dr. Karmy on November 6, 2019. The applicant does not make specific submissions as to whether the assessment was reasonable and necessary. She relies on the report of Dr. Karmy generally in her submissions. Dr. Karmy made a number of diagnoses related to chronic pain, provided a prognosis, and made treatment recommendations.

68The respondent submits that none of the clinical notes and records produced by the applicant show any complaints of pain. The respondent argues that Dr. Karmy’s report should be given less weight given the minimal medical documentation reviewed in coming to his conclusions. The respondent also relies on Dr. Sharma’s reports, as she did not make further recommendations for any assessments or referrals to specialists.

69During her assessment in September 2018, Dr. Sharma initially found that the applicant did not meet the diagnostic criteria for chronic pain syndrome. However, by February 2020, approximately three months after Dr. Karmy’s report, Dr. Sharma found that the applicant had met the diagnostic criteria for chronic pain syndrome. She stated that while facility-based treatment was not required, the applicant should visit her family physician for medical management of her pain symptoms.

70Although I have issues with the recommendations in Dr. Karmy’s report, the fact that the respondent’s own s. 44 assessor also diagnosed the applicant with chronic pain syndrome is compelling evidence that the applicant’s pain condition warranted exploration and the provision of recommendations by a chronic pain specialist. I therefore find that it was reasonable for the applicant to have undergone a chronic pain assessment.

Interest

71Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the overdue benefits, if incurred.

Award

72Under s. 10 of O. Reg. 664, the applicant may be entitled to an award of an amount up to 50% of the benefits and interest owed to her if I find that the respondent unreasonably withheld or delayed payments.

73The applicant submits that the respondent failed to re-assess whether she needed the denied treatment plans after she was deemed catastrophically impaired. The applicant generally states that the respondent has failed to properly review and adjust her claim as material facts have changed, and she is accordingly entitled to an award for unreasonable delay in payment of the treatment plans.

74I do not find that an insurer has an obligation to re-assess every treatment plan after an insured person is deemed catastrophically impaired. The applicant has not pointed me to any authorities in support of that assertion. If a treatment plan is denied for the sole reason that someone is not catastrophically impaired, after they are deemed catastrophically impaired the insurer certainly has an obligation to re-assess the treatment plan as the reason for the denial no longer stands.

75The treatment plan for an attendant care assessment was denied by the respondent on May 9, 2018, as a result of the applicant being in the Minor Injury Guideline. The respondent reiterated its denial on September 26, 2018 and stated again that it was because the applicant’s injuries were minor. The applicant has subsequently been deemed catastrophically impaired. The communicated reason for the denial was no longer tenable once the applicant was removed from the Minor Injury Guideline.

76However, the respondent also relies on the s. 44 report of Dr. Sharma, who stated that the proposed assessment was not reasonable and necessary in September 2018. Although the communicated reason for the denial was the application of the Minor Injury Guideline, I find that the treatment plan’s reasonableness was in fact assessed by Dr. Sharma.

77However, the respondent clearly believed an attendant care assessment was ultimately reasonable and necessary, as it went ahead and paid for its own.

78It is well-settled law that an award should not be ordered simply because an insurer made an incorrect decision. The insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.² I find that the respondent was unreasonable in funding its own assessment but refusing to fund the applicant’s. If it truly believed that this type of assessment was not warranted, it would not have paid for its own. It was unyielding and inflexible when it came to funding the applicant’s assessment. Its behaviour with respect to this treatment plan attracts an award.

79I do not find that the respondent’s behaviour with respect to any of the other denials rose to the level of justifying an award.

80In determining the quantum of a special award, the Tribunal has found that the following factors may be considered: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and (vii) the overall length of the delay.³

81In this case, the respondent’s conduct should be deterred, and not paying for an assessment constitutes a monetary advantage. I do not find the applicant’s vulnerability or potential harm to be strong factors without further evidence in that regard. I do not believe that the respondent’s behaviour attracts the full 50% maximum allowable under O. Reg. 664. I find that $250.00 is an appropriate quantum for the award, plus interest pursuant to O. Reg. 664. This represents approximately 20% of the unreasonably denied attendant care assessment.

ORDER

82The applicant is entitled to the following, including interest in accordance with s. 51 of the Schedule:

1. $214.70 for translation services in the treatment plan submitted on June 26, 2019;

2. $63.72 for the submission of the treatment plan dated October 24, 2019;

3. $1,205.92 for an attendant care assessment in the treatment plan submitted on May 7, 2018; and

4. $2,000.00 for a chronic pain assessment in the treatment plan submitted on December 10, 2018.

83The applicant is not entitled to the remainder of the treatment plans in dispute.

84The respondent is liable to pay an award under s. 10 of O. Reg. 664 in the amount of $250.00, plus applicable interest.

Released: June 7, 2023

__________________________

Rachel Levitsky

Adjudicator

Footnotes

1. 1V.H. v Certas Home & Auto Company, 2018 CanLII 98286 (ON LAT)
2. 2S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT)
3. 3Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649.