Citation: Sheikh v. Aviva Insurance Company, 2023 ONLAT 21-006763/AABS

Licence Appeal Tribunal File Number: 21-006763/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:

Ameer Sheikh

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lyndra Griffith

APPEARANCES:

For the Applicant:

Ameer Sheikh, Applicant

Ilya Kirtsman, Counsel

Nicole Taylor, Counsel

Kate Barretto, Counsel

For the Respondent:

Jenny Tran, Adjuster

Jean-Claude Rioux, Counsel

Natalie Maltz, Counsel

Court Reporter:

Breanna Clancy

Heard by Videoconference:

September 12, 13, 14, 15, 2022

1Ameer Sheikh, the applicant, was involved in an automobile accident on January 22, 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 Aviva Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent terminated the applicant’s income replacement benefits (IRB) and also denied the applicant’s claim for attendant care benefits (ACB), physiotherapy and assistive devices.

ISSUES

3The issues in dispute are:

Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week for the period October 25, 2019 to March 22, 2021?
Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week for the period March 23, 2021 to date and ongoing?
Is the applicant entitled to an attendant care benefit in the amount of $386.80 per month for the period January 22, 2019 to September 7, 2021?
Is the applicant entitled to an attendant care benefit in the amount of $533.49 per month for the period September 8, 2021 to date and ongoing?
Is the applicant entitled to $2,149.90 for occupational therapy services, or an OCF-18 dated May 21, 2019 OCF-18?
Is the applicant entitled to $599.48 for assistive devices for an OCF-18 dated May 21, 2019?
Is the applicant entitled to $1,591.53 for physiotherapy services dated January 17, 2021?
Is the applicant entitled to $4,589.51 for physiotherapy services for an OCF-18 dated December 2, 2019?
Is the applicant entitled to $1,383.28 for physiotherapy services for an OCF-18 dated October 23, 2020?
Is the applicant entitled to $5,450.00 for an orthopedic assessment for an OCF-18 dated June 3, 2020?
Is the applicant entitled to an invoice (OCF-6) dated May 16, 2022 in the amount of $18,525.00 for rehabilitation expenses?
Is the applicant entitled to $2,594.06 for occupational therapy services for an OCF-18 dated March 4, 2022?
Is the applicant entitled to $5,029.70 for assistive devices for an OCF-18 dated March 4, 2022?
Is the applicant entitled to $1,696.26 an assessment for an OCF-18 dated March 4, 2022?
Is the applicant entitled to $4,017.12 for treatment for an OCF-18 dated October 18, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4I find that the applicant:

i. Is entitled to assistive devices in the amount of $599.48;

ii. Is entitled to physiotherapy in the amount of $1,383.28;

iii. Is entitled to assistive devices in the amount of $3,137.97;

iv. Is entitled to interest payable in accordance with s. 51 of the Schedule; and

v. Not entitled to the other, remaining benefits in dispute.

ANALYSIS

Background

5The applicant was working as a parking attendant when a car ran over his left foot. He recalls his foot having severe pain and difficulty bearing weight. He drove himself to a walk-in clinic and then went to the emergency room where he had x-rays performed. There were no fractures. He was subsequently given crutches and discharged home. He was followed up in the fracture clinic at the hospital and was diagnosed with a crush injury. Within a few months of his injuries the applicant began physical rehabilitation.

Causation

6The applicant made six pages of submissions on the causation of his chronic pain to his left foot, however it is unclear why he is arguing causation when he received medical and rehabilitation benefits and two years of IRBs due to the crush injury to his left foot. Where causation does not appear to be challenged by the respondent, I make no findings on it.

The applicant is not entitled to IRBs

7The applicant is seeking IRBs for the pre- and post-104 week period.

8For the reasons that follow, I find that the applicant is not entitled to IRBs for the period of October 25, 2019 to date and ongoing.

Entitlement to IRBs within 104 weeks of the accident (October 25, 2019 to March 22, 2021)

9Although the case conference report and order dated January 10, 2022 listed that IRBs were in dispute from October 25, 2019 to March 22, 2021, the applicant submits that the respondent erroneously did not pay IRBs from October 25, 2019 to December 2, 2019.

10The respondent submits that it paid the applicant $44,560.00 in IRBs, with payments up to March 22, 2021 and that only post-104 week income replacement is in issue.

11In his reply, the applicant argues that no IRBs were paid between October 25, 2019 to December 2, 2019 and that the respondent did not include any evidence, such as a cheque or OCF-9 statement, to show otherwise.

12The respondent has not denied that the applicant was entitled to an IRB from October 25, 2019 to December 2, 2019 and claims it already paid the applicant for this timeframe. Although the applicant states that the respondent did not pay the applicant for this period, this may be an accounting error by one of the parties and can be rectified without the Tribunal’s involvement as there is no dispute between the parties as to entitlement and no dispute about the amount of the IRB. Accordingly, the Tribunal will not make a finding on this issue.

Entitlement to IRBs beyond 104 weeks of the accident (March 23, 2021 to date and ongoing)

13I find that the applicant has failed to prove on a balance of probabilities that he is entitled to IRBs for the period from March 23, 2021 to date and ongoing.

14To be eligible to receive IRBs 104 weeks post-accident under s. 6 of the Schedule, an applicant must meet the stricter test of being completely unable to engage in any employment for which they are reasonably suited by education, training or experience.

15The applicant was accepted to a pre-med program in Aruba at Xavier University of Medicine in 2012. It is reported that he nearly completed his program by completing three out of four years but was unable to complete his program as he had to return home to be with his ailing father.

16He began working for his most recent employer in October 2018 as a parking attendant. His duties entailed providing drivers with an option for debit payment by bringing a debit machine to their vehicle, directing traffic and ensuring they exited the parking lot successfully. He earned $35.00/hour due to earning "double time and a half" as he typically worked 16 hours per day. He never returned to work following the accident.

17Orthopaedic Surgeon Dr. Tajedin Yenus Getahun completed a s. 25 orthopaedic assessment on October 27, 2020. He diagnosed the applicant with a crush injury to his left foot and myofascial strain of the lumbosacral spine. Dr. Getahun was of the opinion that the applicant’s left foot injury constitutes a permanent and serious impairment of important physical function. He opined that the applicant suffers a substantial inability to perform the essential tasks of his pre-accident employment as a parking attendant because he is unable to tolerate the required standing and walking of that position. Dr. Getahun further opined that the applicant also suffers a complete inability to engage in any suitable form of employment taking into consideration his education, training and experience. He recommended physiotherapy focusing on range of motion and strengthening of the left foot along with custom orthotics to assist him in possible return to employment.

18The respondent advised the applicant on March 17, 2021 that he was not entitled to an IRB 104 weeks post-accident based on a multidisciplinary report dated March 5, 2021. The report contained the opinions of Dr. Erin Boynton, orthopaedic surgeon, Rachel Yeboah, vocational consultant and Dawn Rynberk, kinesiologist. All opined that the applicant was not entitled to an IRB as his accident-related impairments have not resulted in a complete inability to engage in any employment or self employment for which he is reasonably suited by education, training or experience. Ms. Yeboah also noted that his pre-accident wage should be verified as this wage is much higher than is typical for parking lot attendants. There was no information on file verifying the applicant’s pre-accident wage and Ms. Yeboah deferred issues regarding wage determination and comparability to the respondent.

19The respondent submits that the applicant’s evidence falls considerably short of establishing that he meets the standard required by law as the applicant testified that he can walk for an hour without taking a rest, can pass the academic portion of a program as well as travel internationally. The respondent also argues that he could work as a medical office assistant as indicated in the vocational assessment completed by Ms. Rynberk, yet the applicant has failed to make any efforts to find employment.

20The applicant submits that Dr. Boynton testified that she would recommend a gradual return to work to his parking lot job rather than starting at full duties/hours. Dr. Boynton’s report also indicated that the applicant is able to return to his pre-accident job as a parking lot attendant and that if his job with his pre-accident employer is still available, this is a viable option.

21The applicant denies not making any effort to work. He agues that he tried for a year and a half, in good faith, to re-train in a different profession at Anderson College but was unable to complete the program because his accident-related injury to his foot did not improve. The applicant submits that he did not apply for jobs after his inability to finish Anderson College as he does not see himself as capable of performing any suitable full-time jobs.

22The applicant testified that he is unable to do any work due to his accident-related injuries and that he has not applied for any jobs at all. Although the applicant says he cannot work, he has failed to convince me that his crush injury has resulted in his complete inability to engage in any employment that he would be suited for. I find the multidisciplinary report dated March 5, 2021 to be more persuasive than Dr. Getahun’s as it provided opinions as to his transferable skills and suitable alternative vocational options. Dr. Getahun opines categorically that the applicant is unemployable, and he does not discuss his transferable skills or alternative vocations. It should also be noted that it appears that Dr. Getahun has have misstated the test. He opined that the applicant suffers a complete inability to engage in any suitable form of employment taking into consideration his education, training and experience, but it should be “education, training or experience”. Although it is not clear whether this is a typo, given that Dr. Getahun categorically states that the applicant is unemployable, this suggest that it’s not a typo but rather the wrong test identified and applied by Dr. Getahun.

23Finally, Dr. Boynton recommend a gradual return to work to his parking lot job rather than starting at full duties/hours, which suggests that he is able to work in capacity. The applicant has not attempted to work nor has he sought out employment. The applicant has not discharged his burden of proving that on a balance of probabilities he is completely unable to engage in any employment taking into account his education, training or experience, as a result of his accident-related injuries. Accordingly, he is not entitled to a post-104 IRB.

The applicant is not entitled to ACB in the amount of $386.80 per month from January 22, 2019 to September 7, 2021

24Section 19(1)(a) of the Schedule states that an applicant is entitled to reasonable and necessary expenses incurred as a result of the accident for services provided by an aide or attendant. A prerequisite to entitlement is that the expense is “incurred,” as defined in section 3(7)(e)(iii) of the Schedule:

… an expense in respect of goods or services referred to in this Regulation is not incurred by an insured person unless,

(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

25I find that the applicant has failed to prove on a balance of probabilities that he is entitled to ACBs for the period from January 22, 2019 to September 7, 2021.

26Occupational therapist Laura Paulin completed a Form 1 dated May 24, 2019 totalling $386.80 monthly. Ms. Paulin recommended the following:

i. 5 minutes 7 times per week to prepare him for meals;

ii. 60 minutes 2 times per week to supervise/assist in walking;

iii. 5 minutes 7 times per week to clean tub/shower/sink/toilet;

iv. 10 minutes once a week change bedding, make his bed and clean his bedroom; and

v. 10 minutes 7 times to respond to an emergency or for custodial care.

27The applicant submits that had the respondent approved the ACB he would be independent of his mother and receive professional assistance that would help with recovery. He submits that his ACB needs were carefully documented and opined on by Ms. Paulin, Ms. Bingham, and Dr. Getahun.

28The respondent submits that the applicant’s mother’s evidence contradicted the applicant’s evidence and that the only evidence he gave with respect to his need for attendant care was his mother and his fiancé at the time helped him to put on his underwear.

29The respondent further submits no attendant care benefits have been “incurred” for purposes of section 3(7)(e) of the Schedule.

30The respondent notified the applicant on August 30, 2019 that as per the s. 44 report dated August 22, 2019, completed by Dr. Boynton and occupational therapist, Robert Campos, it determined that he did not require any attendant care.

31Based on the evidence, I find the applicant was independent and self sufficient with his activities. The applicant’s evidence is inconsistent with that of his mother. On the one hand, his mother testified that she cooked and served him meals and waited outside the bathroom as he showered. She said that she waits and stands outside the shower while he is showering because “he is not capable with the pain that he is in”. Her testimony was unclear with respect to what type of assistance she provided with respect to showering. In contrast, the applicant described himself as independent with his self-care activities. Based on the applicant’s testimony and the s. 44 report and considering that the burden of proof lies on the applicant, I was not persuaded that that ACBs was reasonable and necessary.

32Further, as a family member who took time to care for her son, s. 3(7)(e)(iii)(B) requires that the applicant show that his mother sustained an economic loss as a result of providing her services. The applicant’s mother’s oral testimony that lacked sufficient detail and was inconsistent with her son’s evidence. She has not provided any details concerning the type of services performed or the dates and times they were performed or how she sustained an economic loss as a result of providing the goods or services to her son. I find that there is insufficient evidence of such economic loss as required by s. 3(7)(e)(iii)(B).

The applicant is not entitled to an attendant care benefit in the amount of $533.49 per month for the period September 8, 2021 to date and ongoing

33Occupational therapist Emma Bingham completed a Form 1 dated January 6, 2022, recommending $533.49 in monthly attendant care. In her Summary Of Future Care Needs Report dated September 8, 2021, Ms. Bingham opined that the applicant’s attendant care needs have increased slightly given that his pain is now deemed chronic in nature and his prognosis is guarded. Ms. Bingham recommended the following:

20 minutes 7 times per week for assistance in preparing, serving and feeding meals;
60 minutes 2 times per week to supervise/assist in walking
5 minutes 7 times per week to clean tub/shower/sink/toilet
10 minutes once a week change bedding, make his bed and clean his bedroom; and
30 minutes 7 times to ensure the comfort, safety and security in his environment.

34On March 4, 2022, the respondent advised the applicant that it would not fund any ACB on the recommendation of Robert Campos, who opined that ACBs were not reasonable and necessary in his IE in-home assessment report dated March 1, 2022. Mr. Campos opined that from a functional perspective the applicant was able to perform his self-care activities independently and that he does not require to complete these tasks.

35As stated above, the applicant reports being independent with his self-care activities. Mr. Campos’ report is consistent with the applicant’s testimony and I was not persuaded that the Form-1 completed by Emma Bingham is reasonable and necessary as the applicant reported only a moderate difficulty walking a mile and that his walking tolerances are 45 minutes--it does not make sense that he would require 60 minutes twice a day to supervise his walking. There was no rationale provided as to why he requires assistance cleaning his bathroom after every use, why he needed assistance changing his bedding once a week and why he needed assistance making dinner. In light of the totality of the evidence, I give more weight to Mr. Campos’ report because it is more consistent with the applicant’s reported self-care activities. Furthermore, as stated above, there is insufficient evidence to prove that the applicant’s mother sustained an economic loss as required by s. 3(7)(e)(iii)(B).

36Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

37The applicant bears the onus of proving entitlement to the proposed treatment by proving both OCF-18s are reasonable and necessary on a balance of probabilities.

38The applicant submits that the respondent has denied medical and rehabilitation treatment plans notwithstanding that treatment provides pain relief to the applicant.

39The respondent submits that the applicant has failed to discharge his burden of proof with respect to all of the disputed medical benefits.

The applicant is not entitled to occupational therapy in the amount of $2,194.90

40Ms. Paulin completed an OCF-18 dated May 21, 2019 in the amount of $2,194.90 recommending 5 sessions of “therapy, motor and living skills” in the amount of $748.15. The remaining amount of $1,596.75 was for travel time, brokerage fees, documentation and for completing the claim form.

41The applicant did not make any submissions for this issue apart from the general assertion that all the denied OCF-18s are reasonable and necessary.

42Dr. Boynton opined in her IE report dated August 22, 2019 that this plan was not reasonable and necessary because based on Dr. Boynton’s assessment of the applicant, she fond that he can resume his activities of daily living and he doesn’t require the recommended therapy sessions.

43I find that the applicant has failed to prove on a balance of probabilities that this OCF-18 is reasonable and necessary. There must be compelling contemporaneous evidence in support of the treatment plan as the OCF-18 on its own is not compelling evidence in support of treatment. The applicant did not direct me to any such evidence.

The applicant is entitled to assistive devices in the amount of $599.48

44Ms. Paulin completed an OCF-18 dated May 21, 2019 in the amount of $599.48 recommending: a bath mat, tub rail, bath bench, hand held shower, shower head gripper and a toilet safety frame.

45At the time this OCF-18 was requested, orthopaedic surgeon Dr. Chan noted on March 22, 2021 that the applicant reported being in a lot of pain in his left foot following in the accident and that he was using crutches for 8 months post-accident.

46Dr. Boynton also opined in her report dated August 22, 2019 that this plan was not reasonable and necessary because based on Dr. Boynton’s assessment of the applicant, she did not identify any objective evidence of ongoing impairment that would require the use of these assistive devices.

47I find that the applicant is entitled to the OCF-18 as there is sufficient evidence that the applicant had mobility issues at the time this plan was submitted, and he was using crutches to ambulate. It is only reasonable to assume that he may have required extra safety measures when using the shower and the toilet. The cost of these assistive devices is reasonable in the circumstances. The OCF-18 is therefore reasonable and necessary.

The applicant is not entitled to physiotherapy in the amount of $1,591.53

48Physiotherapist Abhishek Sharma completed an OCF-18 dated January 16, 2020, for $1,591.53, recommending 12 sessions of “therapy, multiple body sites.” The goals of the OCF-18 were pain reduction, increase in strength, increased range of motion and high functional restoration. Additional goals were to return to activities of daily life, to return to pre-accident work activities, sports, running. The applicant reported continuous mild to moderate pain in his left ankle and low back. Abhishek Sharma observed that he had mild end range restriction, left ankle dorsiflexion, some tightness felt in his lower legs. Minimal imbalance was noted in single leg standing, with more imbalance on the left.

49The respondent notified the applicant on January 22, 2020 that the plan was denied as additional information was requested from the service provider, including the duration of each service on the OCF-18 and confirmation of services that would be received from the physiotherapist and registered massage therapist. The respondent advised that the service provider put PR (procedure) as the duration of each service listed, but this code is to be used for manipulation services. The respondent was advised that all services must be described with unit measure “SN” (session) and “HR” (hour) unless it is for manipulation. The respondent advised that if the services proposed in the OCF-18 are not for manipulation, it would require his treating health practitioner to resubmit the OCF-18.

50The applicant submits that on April 21, 2021, his treating orthopedic surgeon, Dr. Chan, a foot and ankle subspecialist, recommended physiotherapy for his left foot pain and achilleas tendinosis. The applicant submits that the respondent had this report in its possession since May 22, 2022 but did not re-consider prior physiotherapy denials.

51Dr. Getahun also recommended in his report (assessment October 27, 2020) that that the applicant continue physiotherapy, focusing on range of motion and strengthening of the left foot along with custom orthotics to assist him in possible return to employment.

52Sports medicine doctor, Dr. Jacqueline Stoller, made a note on October 19, 2020 that she suggested that the applicant continue with physiotherapy for the time being.

53This OCF-18 was denied as additional information was requested from the service provider. No additional information was provided to the respondent and I agree that this information is crucial to determining whether the type and length of service was reasonable and necessary. The applicant has the burden to prove on a balance of probabilities that this OCF-18 was reasonable and necessary at the time it was requested and I am unable to find in favour of the applicant due to the lack of clarifying information in relation to the services claimed in this plan.

The applicant is not entitled to $4,589.51 for physiotherapy services for an OCF-18 dated December 2, 2019

54Although the case conference report and order dated January 10, 2022 listed this issue as physiotherapy, it is a work hardening program in the amount of $4,589.51 and is dated November 19. 2019. Work hardening is described as an interdisciplinary, individualized, job-specific program of activity with the goal of return to work. These programs use real or simulated work tasks and progressively graded conditioning exercises that are based on the individual's measured tolerances.

55The respondent submits that this OCF-18 was approved, except for $399.51, which it states is inconsistent with the Professional Services Guidelines. The respondent advised the applicant on December 12, 2019 that as per the Financial Services Regulatory Authority of Ontario (FSRA) guideline, the maximum a provider can charge for documentation, assessments and expenses related to professional services is $200.00. Therefore the respondent was unable to approve additional documentation support activity, brokerage service and or contact and file management.

56The applicant did not make any submissions on this issue.

57Given that the applicant has failed to make any submissions whatsoever on this issue, he has not met his burden to prove that the unapproved version of this OCF-18 is reasonable and necessary.

The applicant is entitled to $1,383.28 for physiotherapy services

58Physiotherapist, Shervin Karimii and massage therapist Ganna Faktorovych completed an OCF-18 dated October 15, 2020 in the amount of $1,383.28. They recommended 18 sessions of therapy, multiple body sites and hyperthermy, multiple body sites, education and one count of documentation to support the claim form. The goals of the OCF-18 were pain reduction, increase in strength, increased range of motion and high functional restoration and a decrease in intensity and frequency of headaches and prevention of chronicity. An additional goal was to return to activities of daily life.

59On December 22, 2020, the respondent notified the applicant that following a s. 44 with orthopaedic surgeon Dr. Boynton on November 30, 2020, she determined the treatment recommended was not reasonable and necessary in relation to the injuries sustained in the motor vehicle accident. Dr. Boynton opined that from an orthopaedic perspective, the applicant has reached maximum medical improvement from his accident-related injuries. Although she noted that he has ongoing pain, she found no significant structural abnormality. She further opined that there was no accident impairment present.

60The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary. Dr. Getahun and Dr. Stoller recommended physiotherapy contemporaneously to when this OCF-18 was requested. Dr. Chan made the recommendation several months later. Although Dr. Boynton opined that the applicant has reached maximum medical improvement from his accident-related injuries, she also noted that he has ongoing pain and one of the goals of this plan is pain reduction. The cost of this plan seems reasonable in the circumstances, as well as the number of sessions proposed. As a result, I find that the applicant has met his burden to prove on a balance of probabilities that this OCF-18 was reasonable and necessary at the time it was requested as there was sufficient contemporaneous supporting documentation in support of this plan.

The applicant is not entitled to the unapproved amounts of an orthopaedic assessment

61Dr Getahun submitted an OCF-18 in the amount of $5,450.00 for an orthopedic assessment for an OCF-18 dated June 2, 2020.

62The respondent advised the applicant on June 15, 2020 that the OCF-18 dated June 2, 2020 for an orthopaedic assessment would be funded up to the $2,000.00 limit pursuant to s. 25(5)(a) of the Schedule.

63The applicant has not made any submissions on this issue and has offered no evidence as to why the $2,000.00 limit is not applicable. Therefore, I find that he has not met his burden of proving that the remaining $3,400.00 is reasonable and necessary.

The applicant is not entitled to an OCF-6 in the amount of $18,525.00 for rehabilitation expenses

64The applicant submitted to an invoice dated May 16, 2022 in the amount of $18,525.00 for tuition expenses for a physio/occupational therapy program at Anderson College. The applicant started attending this program on August 5, 2019 and has not completed it.

65The applicant submits that as a result of his inability to work he tried to mitigate damages as best as he could. He decided to enroll in a physiotherapy assistant program. The applicant did not know that the respondent may be able to pay for professional vocational assessment and counselling per the Schedule.

66The applicant submits that the respondent was aware that he intended to return to school because this was noted in Mr. Campos' 2019 report. The applicant argues that despite knowing that he intended to return to school imminently, it failed to advise him to submit an OCF-18 for potentially relevant benefits.

67The respondent argues that s. 38(2) of the Schedule is a complete defence to this claim. Section 38(2) states that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan. The applicant submits in reply that Ms. Tran acknowledged on cross-examination that the respondent mistakenly failed to send the applicant the standard initial letters outlining rehabilitation benefits a claimant may receive and how the expense submission process works. The applicant’s submissions cited McDonald v. Aviva Canada Inc. 2014 ONFSCDRS 31 where an insurer failed to fulfill its s. 32(2) obligations under the Schedule by not providing information to assist the claimant in applying for retraining/tuition benefits. I find that McDonald is distinguishable from this case. In McDonald, the applicant had her initial OCF-18 for vocational retraining approved by the insurer and she changed her program without submitting a new OCF-18. In this case no OCF-18 was submitted.

68The applicant had retained his current counsel prior to attending Anderson College and had been filing OCF-18s shortly after the accident. The applicant ought to have known that the respondent would need to approve of tuition fees prior to them being incurred. I agree with the respondent that it is not liable to pay an expense in respect of a rehabilitation benefit that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements. I find that s. 38(2) of the Schedule is a complete defence to this claim as the plan does not fall under one of the exceptions enumerated under the subsection.

The applicant is not entitled to $2,594.06 for occupational therapy

69Occupational therapist Emma Bunton proposed the OCF-18 dated January 13, 2022 for occupational therapy in the amount of $2,594.06 recommending: 6 sessions of “therapy, motor and living skills” in the amount of $897.79. The remaining amount of $1,696.28 was for travel time, brokerage fees, documentation, for completing the claim form and service planning. The purposes of the sessions were:

To reassess the need for adaptive equipment as the client’s functional status changes.
To facilitate a return to daily routines and re-activate the client at his own pace, while consulting with his family doctor and treating team, as needed.
To address barriers to return to meaningful activity at home and in the community, including cooking, housekeeping, social/leisure interests, and light fitness.
To review pain management, safe body positioning, energy conservation, and pacing to maximize activity tolerance.
To monitor and provide education on emotional health and well-being.
To assist with progressive return to work or school when appropriate.
To provide education on and facilitate implementation of sleep hygiene strategies.

70The applicant did not make any submissions for this issue.

71I find that the applicant has failed to prove on a balance of probabilities that this OCF-18 is reasonable and necessary. The OCF-18 on its own is not compelling evidence in support of treatment. There must be compelling contemporaneous evidence in support of the treatment plan. Again, the applicant does not direct me to any evidence in support of the treatment.

The applicant is entitled to assistive devices

72Ms. Bunton proposed the OCF-18 dated January 13, 2022 for assistive devices in the amount of $5,029.70. Ms. Bunton proposed a rocking recliner ($1,569.51), heating pad ($56.46), a wooden balance board ($40.66), shoe orthotics ($400.00) and an elliptical machine ($2,697.31).

73Ms. Bunton noted that the applicant’s physiotherapist, Mr. Karimii, supports the recommendation for an elliptical in order to promote an increase in his exercise tolerance and to allow him to participate in exercise in his home in winter months. She stated that Mr. Karimii has also suggested that he be provided with a balance board which would aim to train muscles around the ankle and improve balance. Ms. Bunton recommended shoe orthotics because the applicant has been provided with them in the past in order to correct biomechanical foot issues. These orthotics are in need of replacement and further funding was requested for replacement orthotics.

74In her report dated August 22, 2019 and again at the hearing Dr. Boynton opined that the applicant’s impairment is one of deconditioning. During her examination of the applicant on September 13, 2021, Dr. Boynton observed that he had difficulty squatting and touching the ground due to poor hip and core muscle activation. She observed poor flexibility of his hamstring with poor core and gluteus muscle activation. She testified that she thinks the imbalances in his body are due to his sedentary lifestyle. Dr. Boynton recommended that the applicant could benefit from a home exercise program.

75Dr. Boynton further testified that in her experience there are no use for orthotics as they are a band aid solution and the applicant should learn to strengthen his foot as there is no abnormality in his foot. Dr. Getahun on the other hand, recommended custom orthotics to assist the applicant in possible return to employment.

76Dr. Boynton noted on several occasions that the applicant’s deconditioning is contributing to his impairment, and she recommended a home exercise program, although she did not specify what that would entail. She opined that a balance board and elliptical machine would likely help him with this program. It is also not unreasonable that a person who suffers a crush injury to their foot may benefit from the extra support of a shoe orthotic, especially when they had previously been provided with orthotics and they were recommended by an orthopaedic surgeon. As a result, I find that the applicant has met his burden to prove on a balance of probabilities that the elliptical machine, balance board and shoe orthotics are reasonable and necessary at the time it was requested. There was insufficient evidence to prove that the remaining assistive devices (rocking recliner and heating pad) were reasonable and necessary.

The applicant is not entitled to $1,696.26 for an occupational therapy assessment

77Ms. Bunton proposed the OCF-18 dated January 13, 2022 for an occupational therapy virtual assessment. The purpose of the assessment was to evaluate his safety, as well as his physical, psychosocial, cognitive function post-accident. Ms. Bunton said that this initial assessment was required in order to initiate an occupational therapy program. She said these services would address his functional goals, increase his safety, and increase his activity levels and participation in the community. Two visits were requested to complete this initial occupational therapy assessment.

78The applicant did not make any submissions on this issue.

79I find that the applicant has failed to prove on a balance of probabilities that this OCF-18 is reasonable and necessary. The OCF-18 on its own is not compelling evidence in support of treatment. There must be compelling contemporaneous evidence in support of the treatment plan and the applicant does not direct me to any evidence in support of the treatment.

The applicant is not entitled to $4,017.12 for treatment

80The case conference report and order dated August 16, 2022 listed this issue as treatment but in fact it is another work hardening program. Chiropractor Kushalmeet Pawar completed an OCF-18 in the amount of to $4,017.12 dated October 18, 2021 for a second work hardening program.

81The respondent submits that a second work-hardening program is not reasonable and necessary, when the applicant has already had one work hardening program approved, yet has made no efforts to return to work, or even to look for work.

82In light of the applicant not making any submissions on this issue and since a previous work hardening program has already been approved by the respondent, I find that the applicant has not met his burden of proving that this OCF-18 is reasonable and necessary.

Interest

83The applicant is entitled to interest in accordance with s. 51 of the Schedule for:

i. assistive devices in the amount of $599.48;

ii. physiotherapy in the amount of $1,383.28.

iii. assistive devices in the amount of $40.66 for a wooden balance board, $400.00 for shoe orthotics and $2,697.31 for an elliptical machine.

Award

84It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

85The applicant submits that Ms. Tran acknowledged on cross-examination that the respondent mistakenly failed to send the applicant the standard initial letters outlining rehabilitation benefits a claimant may receive and how the expense submission process works.

86The respondent submits that the claim for an award is preposterous.

87Although the applicant may have not received the standard initial letters from the respondent, the applicant retained counsel and was submitting OCF-18 shortly after the accident. I find that the applicant is not entitled to an award in this matter because the evidence before me does not support a finding that the respondent’s actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate and, as such, the applicant is not entitled to an award under Regulation 664.

ORDER

88For the reasons outlined above, I find that the applicant: