Licence Appeal Tribunal File Number: 21-008211/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:
Braedan Kucheran-Grenier
Applicant
and
The Co-operators
Respondent
DECISION
ADJUDICATOR:
Julia Fogarty
APPEARANCES:
For the Applicant:
Braedan Kucheran-Grenier, Applicant
Lawson Hennick, Counsel
Sundeep Singh, Counsel
For the Respondent:
Don LeQuyer, Claims Representative
Eric Grossman, Counsel
Adrienne Bramson, Articling Student
Court Reporter:
Guido Riccioni
Heard by videoconference:
February 21–23, 2023
OVERVIEW
1Braedan Kucheran-Grenier, the applicant, was involved in an automobile accident on June 4, 2020, 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, The Co-operators (the “Insurer”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was dropped off with fishing gear on the side of a highway near a local fishing spot by his mother while she parked their family vehicle. While the applicant was walking towards the fishing hole a tire detached itself from a passing vehicle.
3This tire struck the applicant from behind on the back of his legs, knocking them out from under him, he scraped his arm and lost consciousness during his fall.
ISSUES
4At the hearing the parties identified the following issues in dispute to be determined by the Tribunal:
i. Is the applicant entitled to $5,804.39 per month in attendant care benefits proposed by Downsview Healthcare, submitted November 7, 2021 and denied January 27, 2022?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from June 15, 2022 to date and ongoing?
iii. Is the applicant entitled to $1,518.36 for assistive devices proposed by Mind Connections, submitted February 10, 2022 and denied February 10, 2022?
iv. Is the applicant entitled to the following chiropractic services treatment plans from Complete Balance Health Centre:
(a) $1,774.34, for chiropractic treatments submitted April 1, 2022 and denied April 1, 2022?
(b) $1,300.00, for chiropractic treatments submitted January 12, 2022 and denied January 26, 2022?
(c) $1,779.34, for chiropractic treatments submitted June 22, 2022 and denied July 19, 2022?
(d) $400.00, for chiropractic treatments submitted September 7, 2021 and denied September 9, 2021?
(e) $2,200.00, for a chiropractic assessment submitted April 5, 2022 and denied May 31, 2022?
v. Is the applicant entitled to $349.08 ($1,097.68 less $748.60 approved) for counselling sessions proposed by Downsview Healthcare, submitted on a date not provided by the parties and denied May 10, 2022?
vi. Is the applicant entitled to $200.00 for the completion of OCF-18 forms, submitted May 28, 2021 and denied August 31, 2021?
vii. Is the applicant entitled to $2,200.00 for an in-home attendant care assessment proposed by Downsview Healthcare, submitted September 7, 2021 and denied September 16, 2021?
viii. Is the applicant entitled to $1,396.32 ($3,934.82 less $2,538.50 approved) for psychological treatment proposed by Downsview Healthcare, submitted November 18, 2021 and denied November 30, 2021?
ix. Is the applicant entitled to computer related expenses set out by Mind Connections, as follows:
(a) $1,299.99 ($1,823.38 less $523.39 approved) for a laptop computer proposed by Mind Connections, submitted April 25, 2022 and denied April 25, 2022?
(b) $699.99 for a graphics card, submitted on a date not provided by the parties and denied September 7, 2022?
x. Is the applicant entitled to occupational therapy services, as follows:
(a) $1,196.88 ($4,987.88 less $3,791.00 approved) for occupational therapy treatments proposed by Mind Connections, submitted January 31, 2022 and denied February 10, 2022?
(b) Is the applicant entitled to $1,176.88 ($4,967.88 less $3,791.00 approved) for occupational therapy sessions proposed by Downsview Healthcare, submitted on a date not provided by the parties and denied July 4, 2022?
xi. 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?
xii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant has not met the burden of proof to establish entitlement to attendant care benefits, non-earner benefits, any of the treatment plans, a s.10 award or interest.
6The application is dismissed.
ANALYSIS
7In the paragraphs that follow I express how I reached my findings that the applicant is not entitled to attendant care, several treatment plans, non-earner benefits, a s.10 award claim and interest.
ATTENDANT CARE BENEFITS AND ASSESSMENT
8Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the approved version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
9The applicant applied for attendant care assessment and benefits prior to the 104-week period expiring on June 2, 2022.
10The applicant relies on his experts’ opinions that he is suffering from numerous physical and mental ailments necessitating attendant care, and that an attendant care needs assessment would help determine how much attendant care he would require. The respondent provides that their experts came to very contrary positions about his mental and physical health. Specifically, that the applicant is in good health and requires no attendant care assessment or support.
11I found that the testimony of the applicant’s expert chiropractor, Dr. James Fung, was revealed to be less impartial, his evidence about the applicant’s abilities was internally inconsistent with his own notes, and I was persuaded that his training was inadequate in the context of the opinion he offered on concussions. I found the respondent’s experts’ opinions to be more consistent with the evidence, they illustrated through report and testimony that the applicant is no longer suffering from any physical impairments as a result of the accident. This was corroborated with prior testimony of the applicant given during his previous examination and the notes contained in Dr. Fung’s records illustrating leisure activities the applicant has been engaging in.
12The applicant submits that the 2100 minutes per week recommended for support only needs to take place as “periodic checkups” and encouragement for having meals, showering, and basically for supervisory care. This would translate to 5 hours per day in the opinion of Ms. Meeta Gugnani, occupational therapist. The position of Ms. Gugnani is supported by Dr. Fung.
13The respondent argues that the applicant does not need attendant care support and that the applicant is engaging in behaviour similar to learned helplessness advanced by Dr. Dubravka Dodig, neurological assessor, and Ms. Sarah MacRae, occupational therapy assessor. The respondent argues that this behaviour developed after the applicant brought this application. For the first ten months following the accident he received no treatment and engaged none of the supports available to him. For example, the applicant had a referral for physiotherapy treatment but did not undergo any prescribed treatments nor did he follow up with his family doctor.
14Ms. MacRae testified that the applicant began to receive unnecessary assistance after consulting legal counsel which is leading to the reduced activity tolerance and creating a state of learned helplessness as the status quo for the applicant. This was corroborated by the opinion of Dr. Dodig. Respondent’s counsel further highlighted that the referrals at issue in the application came predominantly from the applicant’s lawyer instead of the applicant’s family doctor.
15Preparing his own meals, taking care of his own hygiene, transfers, ambulating stairs, taking medication, and taking care of his own toenails are listed as issues that needed to be addressed by an attendant care provider. All these recommendations for attendant care were derived from a brief virtual interview with an assessor the applicant didn’t even remember meeting. However the applicant testified at an examination for discovery that he was capable of completing these tasks. Further I place weight on the report of Ms. MacRae who met the applicant face-to-face and reviewed all his records in coming to her report. Ms. MacRae’s evidence is in line with the self-reporting of the applicant’s assessment of his own abilities in his examination for discovery.
16Attendant care has not been incurred, and the applicant led no evidence identifying service providers or dates attended or assistance rendered or time spent or receipts.
17Based on the evidence before me, the applicant has not met his burden of proving that attendant care benefits are reasonable or necessary, nor has he proven that he incurred any attendant care. Similarly, based on the evidence, the applicant has not proven his entitlement to the attendant care assessment.
18To 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.
Assistive Devices and Technological supports
What are the goals of the treatment?
19There are two categories of devices being recommended in these treatment plans, general assistive devices and brain training devices.
i. The applicant’s experts identified the following goals for the general assistive devices:
(a) Pain reduction;
(b) Increase in strength;
(c) Cope with stress from the accident;
(d) Safety in the bathroom; and
(e) Pain management.
ii. To address these needs Mind Connections identified the following items in the February 7, 2022 OCF-18:
(a) A heating pad;
(b) A bath bench;
(c) A rubber bathmat;
(d) A tub clamp;
(e) A handheld showerhead;
(f) A back massager;
(g) A cervical neck pillow;
(h) A mattress topper;
(i) An ergonomic desk;
(j) A long-handed loofa;
(k) A 26-inch reacher; and
(l) A 22-inch shoehorn.
iii. The applicant did not have a clear memory of meeting with Mr. Varun Madan, occupational therapist, despite recalling the other assessors he’d met with. Of the devices suggested by Mr. Madan, the only device recommended by Ms. Meeta Gugnani, occupational therapist, is the mattress topper or ergonomic mattress in her oral testimony. She testified that the goal was to improve pain management, prevent accidents, and improve his sleep.
iv. The respondent argues that none of these devices are reasonable and necessary. The respondent relies on the report of Dr. Raymond Zabieliauskas, a physiatrist assessor who indicated that, after seeing him and conducting a complete physical examination, the applicant’s physical issues had fully resolved.
v. The applicant’s family doctor, Dr. Lisa Levasseur, did not provide any corroboration or support for the physical devices. The respondent argued that based on the psychotherapist’s and Dr. Fung’s notes, the applicant was fishing, hunting and walking daily – a full return to his leisure activities. This is in stark contrast to the applicant’s evidence that he never leaves his basement. In addition, the applicant himself expressed to Ms. MacRae that his bed was already comfortable, which runs contrary to getting a new mattress topper.
vi. I do not find the general assistive devices to be reasonable or necessary. The applicant is able to physically undertake all of the tasks that these devices would be prescribed to supplement. The bulk of the recommended devices were not supported by the applicant’s own witness, Ms. Gugnani, other than a new mattress or mattress topper that would modify or replace a mattress the applicant already finds comfortable.
vii. The applicant’s experts identified the following goals for the brain training devices:
(a) Return to activities of normal living;
(b) Train client in strategies for improving his cognitive abilities (memory, attention and concentration);
(c) Facilitate access to programs that will help with “brain and memory training” that are not suitably achieved on the applicant’s cell phone; and
(d) Facilitate the applicant’s gaming experience, which is a large part of the applicant’s socialization.
viii. To address these needs the applicant requested the following items:
(a) A new laptop computer;
(b) A new graphics card for his desktop computer; and
(c) A smartphone.
ix. The applicant argued that the goal of these assistive devices is to facilitate access of the applicant to programs that help with “brain and memory training” that are not suitably achieved on the applicant’s cellular phone. Additionally, upgrading or updating his computer will facilitate his “gaming” experience which is a large source of the applicant’s socialization. By building his screen time it would increase the applicant’s socialization with his friends over the internet. The other recommended brain training programs look at increasing processing speed to optimize it’s use which is currently slowed down by the computer being too slow.
x. The respondent argues that the applicant was not doing the brain health computer programs prior to the hearing so there is no need for a new computer. The respondent didn’t receive any information about why the computer or graphics card weren’t working, or why a new computer should be a new laptop versus a desktop computer. The respondent argued that this would offer no benefits since he was not making use of this treatment prior to the hearing. The respondent further points to the report of Dr. Dodig where he confirms there are no psychological issues associated with his legs being hit by the tire.
How would the goals be met to a reasonable degree?
20The technology was recommended by the applicant’s experts. The applicant advanced that at minimum the replacement of a “graphics card” in his computer would allow him to access and use the brain training proposed by his treatment providers to assist with improving cognitive function. Additionally, the applicant advances that this would improve his ability to socialize with his friends since he primarily does so through playing videogames.
21The applicant further argued that he could not run the brain training programs due to the graphics card in his computer being too old. There were three options proposed which sees various upgrades to technology which would allow him to access brain training.
22The applicant testified that looking at his computer screen would cause him a “left-side” headache. I am skeptical as to the therapeutic benefits that could be derived from a device that the applicant has alleged causes him pain to look at.
23Ms. MacRae opined that these devices were unnecessary. That the applicant was receiving services he did not need which are leading him to a state of what was essentially “learned helplessness”. The Complete Balance records confirm that the applicant is currently not engaging in computer brain training.
24The respondent relies on Nebesnuik v. Aviva General Insurance Company, 2022 CanLII 93711 (ON LAT) at paragraphs 32 to 37 where the Tribunal determined that “replacing a family computer is an upgrade of a device that households go through relatively regularly” and that the applicant failed to prove that a new computer was reasonable or necessary.
25I do not find that the technological upgrades, specifically the purchase of a new phone, a new computer, or a graphics card are reasonable or necessary. Computers and cell phones are devices that households go through relatively regularly. There is no reason the applicant should be better served by technological upgrades when the brain training is already taking place through paper exercises that avoid exposure to a screen that he relays causes him unnecessary discomfort.
Are the overall costs of achieving them reasonable?
26I do not find that the expenses are reasonable or necessary. I agree with Nebesnuik and extend that reasoning to a cell phone in addition to a computer, both are devices that households go through relatively regularly. Currently the applicant is not using his existing devices for therapy. The applicant does use his devices for online gaming, but he’s expressed that looking at the screen causes him headaches. This last point is reiterated with the applicant’s treating occupational therapist where appointment lengths sometimes had to be cut short since the applicant could not tolerate remaining on a videocall. I do not find that any of the technological expenses are reasonable or necessary to address the applicant’s medical conditions.
27Additionally, I do not find the expenses for set out in the February 10, 2022 treatment plan to be reasonable or necessary. The applicant is able to physically undertake all of the tasks that these devices would be prescribed to supplement. The bulk of the recommended devices were not supported by the applicant’s own expert Ms. Gugnani other than a new mattress or mattress topper which the applicant has already indicated he finds his own to be comfortable to Ms. MacRae.
Occupational Therapy Treatments
What are the goals of the treatment?
28The treatment goals have been identified as:
i. Get the applicant to a point in his recovery where he’s able to go to college and start working;
ii. Cognitive training;
iii. Pain reduction;
iv. Strength building;
v. Stress relief;
vi. Improving sleep;
vii. Help with memory;
viii. Work on attention span;
ix. Work on improving communication;
x. Community integration and socialization; and
xi. Improving issues with dizziness.
How would the goals be met to a reasonable degree?
29The applicant identified how these would be met in the following ways:
i. A workbook is used to track what he’s working on to see his progress, through various assignments it addresses stress relief, improving sleep, and helping his memory;
ii. Applications for memory like Luminosity help by providing memory and writing games that are intended to assist with word finding and memory. One of the memory apps do not work on his cell phone;
iii. In person or virtual meetings:
(a) Virtual meetings take place over the internet and cut-down on travel time. The applicant engages in activities or exercises over the camera with the occupational therapist supervising digitally;
(b) In-person meetings are noted to be more stressful since they went to examine assistive devices together (ergonomic beds, look at phones, look at computer desks) so it involved travel;
(c) A tens machine can be used on the applicant to relax muscles in his knee during in person meetings;
(d) They went on short walks and went shopping;
(e) They engaged in memory testing and an in-home assessment of the applicant’s status; and
(f) Reviewed strategies to address dizziness while climbing stairs.
iv. A laptop would allow him to travel, and sit with family or friends while undertaking his brain training or online gaming.
30During her testimony Ms. Gugnani elaborated that the applicant is currently receiving treatment once a month, reduced from once a week when they were paid for by insurer. Each appointment is 1 to 2 hours depending on how much screen time he can tolerate. Sometimes he cannot maintain an appointment for 2 hours over a video call.
31She elaborated that sometimes he can’t attend but he sends his brain training scores, it was not disclosed how many appointments were missed or how many appointments were cut short or by how much.
32According to Ms. Gugnani, there has been some slow improvement because of the nature of his difficulties and because the treatment has been sporadic as a result of denials. The applicant participates in some of the goals set out in the first few sessions like walking a few blocks, making meals, and the applicant has started texting a friend in an effort to meet his goal of building connections. The applicant also goes on walks outside with his brother, make sandwiches for himself, but things like motivation are expressed to be a major hurdle by Ms. Gugnani.
33The preparation portion of the fees is intended to prepare materials, research devices that may help the applicant, etc. Brokerage is making connections with the client and other team members to provide the services optimally. Not having this paid for by the insurer could cut into actual treatment time, reducing the length and quality of the sessions with the applicant.
34Ms. Gugnani testified that her office does use templates for treatment plans. When questioned, Ms. Gugnani did not believe they would reduce preparatory time for treatments.
Are the overall costs of achieving them reasonable?
35The applicant advances that the costs of treatment are reasonable because he’s received a noticeable benefit to his condition as a result of the intervention.
36The respondent advances that it’s not reasonable because no real progress has been made, and the applicant is not injured in such a manner that would necessitate this kind of treatment.
37Additionally, most of the treatment has taken place through digital means. This is an issue because it has been identified that the applicant has poor tolerance for looking at screens over long periods. This is seen in application through Ms. Gugnani’s testimony when she relayed that appointments have been cut short due to his poor tolerance for technology. As such, adding additional time for brokerage on top of unused treatment time is not reasonable when the unused treatment time could be used for brokerage activities.
38During cross examination Ms. Gugnani admitted t2hat most of the work being undertaken by the occupational therapist was in large part that of a case management worker labelled as occupational therapy treatment to circumvent billing policies for non-catastrophically impaired individuals who do not qualify for case management services.
39It is not reasonable to provide case management services under the guise of occupational therapy services to make use of billing codes understanding that the applicant in question has not been deemed to be catastrophically impaired.
40In addition, the applicant’s disclosures to Dr. Fung of his capabilities and his return to many of his normal activities undermines the reasonableness and necessity of these OCF-18’s.
41Based on the evidence provided I find that the applicant has not met the burden of proof to establish that any of the occupational therapy treatment plans are reasonable and necessary.
Chiropractic Assessment & Treatments
What are the goals of the treatment?
42The applicant began his treatment with Dr. J. Fung, chiropractor, on August 9, 2021 – just over a year after the accident. Dr. Fung testified that he specializes in concussion management, general chiropractic work and scoliosis treatments. His treatments with the applicant have continued at a rate of approximately once per week up to the date of the hearing.
43Dr. Fung identified the following goals for treatment:
i. Help improve the applicant’s dizziness;
ii. Help improve the applicant’s sleep;
iii. Help improve the applicant’s car-related dizziness and anxiety;
iv. Help improve the applicant’s headaches and nausea; and
v. Help improve the applicant’s back and neck issues.
44The applicant stated that he often can’t take his sleep aids because they leave him feeling groggy the following day. Dr. Fung diagnosed the applicant with post-concussion syndrome.
45Dr. Fung testified that he’s conducted in or around 60 hours of treatments virtually since taking on the applicant as a patient. During these virtual visits they look at his symptomology and see what can be done – like guided mediation to help with anxiety, and exercises like stretching as well as strengthening. He also engages in eye exercises.
46The applicant’s position is that he was diagnosed with a concussion after the accident. The applicant testified that he experiences neck pain, back pain and right leg weakness. While getting treatment from the clinic he engages in: eye exercises, back exercises, full body and muscle relaxation, self massages on his leg, stretching, endurance building and exposure therapy.
How would the goals be met to a reasonable degree?
47The applicant stated that the treatment offered some improvement in his physical conditions, his memory and mood improved as well. That he enjoyed the treatments and that he hoped they would continue.
48The respondent’s position is that any physical impairments that the applicant may have suffered as a result of the accident have long resolved. Since there is no physical impairment, there is no entitlement to chiropractic treatments. The respondent makes the following arguments in support of this position:
i. The ambulance report following his accident noted that the applicant did not have a head injury but did suffer from leg and arm abrasions with a pain rating of a 3 out of 10. After the accident the applicant was up and walking around. A headache was noted about 40 minutes after the accident once he was at the hospital, with some bruising to his legs and an abrasion on his elbow. While in the hospital he walked to get his X-ray. In the 2nd hospital he underwent a CT scan which had normal results. There is no objective evidence of any issues with the applicant.
ii. The applicant did not seek treatment during the first ten months for any physical issues. His primary complaints were sleep or psychologically-related. In his medical history there are notes of sleep issues prior to the accident.
iii. The report of Dr. Zabieliauskas, physiatrist, found that the applicant made a full physical recovery and was capable of resuming his pre-accident life without physical restrictions or functional limitations with no residual impairments.
iv. Dr. Fung’s training in the area of concussions is underwhelming and so his assessment should be given little weight in contrast to that of Dr. Zabieliauskas. Through cross examination, Dr. Fung admitted that his training was essentially a pay-as-you-go subscription to use the title associated with his name.
v. The records of Dr. Fung note the applicant’s walking and other physical activities and only highlights that bright lights cause issues for the applicant, which does not indicate a mechanical issue. Dr. Fung testified that the applicant stays stationary in his basement. On cross-examination when his entries illustrating all of the applicant’s physical undertakings was put to him, he characterized his entries about the applicant’s physical activities as small pockets of activities that leave him with pain or take much longer to accomplish. He stated that for things like walking “he can do it, but he needs to take pain medication” or “he needs to rest because he’s sore”. Dr. Fung relayed that he believes that the applicant needs treatment for the foreseeable future. The respondent emphasized that the volume of these entries are demonstrative of a pattern of behaviour typically seen in a healthy young man, especially when read in conjunction with other reports that the applicant was physically well, which contradicts the position of Dr. Fung.
Are the overall costs of achieving them reasonable?
49The applicant advanced that the fees are reasonable and necessary to provide crucial treatment to his wellbeing and development.
50The respondent submits that there’s no objective evidence of physical issues or neurological deficit that would warrant this treatment.
51The respondent relies on Owusu v. TD, 2010 ONSC 6627 for their position that the assessor is charging a fee in excess of reasonable hourly rates for work completed in an assessment. The respondent applies this to the concussion assessment proposed by Dr. Fung in the amount of $2,200.00. Dr. Fung testified that it is a 4-hour assessment and that his hourly rate is set out to be $112.81 per hour under the guideline. As such, a $2,200.00 fee exceeds what he would have reasonably collected based on his hourly rate.
52Additionally, the respondent argued that for the remaining treatments, the applicant had the ability to proceed with a referral from his family doctor to neurological treatment offered by a neurologist or similar healthcare provider, which then would have been paid through OHIP. Fees which would be covered by OHIP are not payable under section 47(2) of the Schedule. I agree with this position by the respondent. As such, treatments which could have been paid for by OHIP should have proceeded by this means.
53I adopt the position of the respondent with regards to the costs of the treatment set out in these treatment plans. The assessment bill of Dr. Fung is very clearly exaggerated when compared to the work involved in the assessment. To charge a patient or insurer $2,200.00 for what amounts to approximately $509.90 worth of work is a gross overcharging for the service that effectively makes it less accessible to patients who may truly require his assistance in areas within his scope of practice. This also applies to documentation fees, which should also be billed at a rate commensurate with the time actually undertaken.
Counselling & Psychological Treatment Sessions
What are the goals of the treatment?
54The applicant identified the following goals:
i. For the applicant to have someone to talk to about the accident and his day to day life;
ii. Address car-related anxiety and vomiting;
iii. Address issues surrounding low mood, anxiety, headaches, nausea, nightmares, motion sickness, and mental fog; and
iv. The assessment and management of his attention and memory as well as post-concussion mood.
55The applicant testified that his fear of the car and fear of leaving home have impacted him profoundly, for example, he no longer sees his father with any regularity. He also suffers from mental fog; he stated that he now has to use a notebook to record his thoughts and events. He often throws up in public settings, which is embarrassing to him.
How would the goals be met to a reasonable degree?
56The applicant is currently taking trazadone to assist with sleeping, but he is on no medication for anxiety. This is in line with the history in the applicant’s medical record dated November 20, 2018 which highlights that in the years leading up to the accident the applicant suffered from sleep disturbances. The applicant links his low mood in part to his sleeplessness but denies having any sleep or mood issues prior to the accident despite the evidence in his family doctor’s records.
57The respondent argued that the applicant suffered from ADHD prior to the accident and that many of the symptoms being addressed are associated with the ADHD – like the sleep issues and the low mood associated with poor sleep. The respondent highlights that the applicant did not express the car related nausea or vomiting to his family doctor. The family doctor’s notes highlight improvement, and that concerta was prescribed to address ADHD. The respondent argues that the applicant’s family doctor’s notes highlight that the symptoms are associated by the doctor to ADHD.
58The applicant expressed that he felt it was beneficial to talk to someone about the accident, someone to keep him positive and converse with over the phone. He expressed that he really enjoyed the phone conversations.
59He felt that this helped with his relationships with his family. This also helped him with his grief over losing his dog. The applicant testified that he felt that the treatment was very helpful and he wished he could receive more of it.
60During cross-examination the applicant’s witness, Ms. Gugnani, relayed that there is no traumatic brain injury present – only mild cognitive injury relating to a concussion.
61Throughout the adjustment of the file the respondent maintained that the applicant lacked objective medical evidence to corroborate the need for psychological treatments proposed and received by the applicant. The psychological sequelae highlighted is the applicant’s ADHD as a cause for any resulting issues rather than the accident.
62I find that the testimony of the applicants and his witnesses in this matter are not in line with the insight provided by the medical records or transcript from his examination prior to the hearing.
Are the overall costs of achieving them reasonable?
63The treatment was approved and partially paid by the insurer. What remains is a dispute between the parties on the rate at which the treatment should be paid. The applicant argues that the facility should be compensated at a psychologist rate. The respondent argues that the amount already paid was reasonable based on the knowledge, experience as well as the nature of the treatment provided.
64The respondent submits that the treatment provided was by a psychotherapist. Psychotherapists are not regulated health providers under the Schedule and that case management fees as well as brokerage services are not payable.
65The remaining balance on this treatment plan is associated with the difference in the treatment provider rates claimed and paid out. The applicant is seeking payment at the higher psychologist rate, and the respondent paid out this treatment plan at a lower rate of $91.43.
66The credentials of the two treatment providers are argued by the respondent to be a psychotherapist and the other is a psychotherapist-in-training. No curriculum vitae has been provided by the applicant to confirm the range and breadth of experience of either treatment provider entitling them to the increase in payment rate. There is no evidence to suggest that either treatment provider should be paid at the higher rate of a psychologist.
67The rate set out under the Schedule is $58.19 per hour for the type of service provided. In both Baranov v. Aviva General Insurance, 2020 CanLII 87933 (ON LAT) and Hawes v. Aviva General Insurance Company, 2022 CanLII 70525 (ON LAT), the Tribunal considered the type of treatment being provided by the psychotherapist to gauge at which rate their services should be payable. In these cases, a rate higher than the prescribed $58.19 was awarded based on the specific psychotherapy treatments being provided. Here this is distinguished from those cases because the respondent already approved a higher rate of $91.43 per hour. The applicant is seeking a further increase in line with the psychologist rate. I was not provided with more in-depth sufficient reasons as to why the psychotherapists should be paid at the psychologist rate based on their credentials and the services provided.
68The applicant has not met his burden of proof to show entitlement to a higher rate of payment. $91.43 is an acceptable rate taking into account that a psychotherapist is an unregulated professional.
NON-EARNER BENEFIT
69Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
70Sections 32(5) and 36(2) of the Schedule, when read together, require a completed and signed application to claim benefits be accompanied with a disability certificate when there is a claim for a specified benefit like non-earner benefits. Section 36(3) of the Schedule further elaborates that a completed disability certificate indicating eligibility for non-earner benefits within the prescribed limitation period of 104-weeks after the accident is a requirement and an insured cannot be entitled to non-earner benefits for any period before the disability certificate is provided: see, e.g., Chavez v. Unifund Insurance Company, 2023 CanLII 2714 (ON LAT).
71Here, the applicant submitted his OCF-3 outside the 104-week period which expired on June 2, 2022. As such, under the Schedule he is not entitled to non-earner benefits for the 104-week period following the accident.
72Prior to considering the merits of the claim, I will first assess if the applicant can proceed with this claim due to a limitation tolling or if he’s barred from proceeding by his late filing.
Is this barred by a limitation period issue?
73The applicant submits that even though they were past the limitation period to claim a non-earner benefit, the period was tolled due to the COVID-19 pandemic. The applicant argues that the limitation period being tolled should be treated as time “added on” at the end of the limitation period, thereby extending the limitation period by the length of time the tolling was in place. The Provincial Emergency Order, O. Reg 73/20 that suspended limitation periods and procedural deadlines ran from March 16, 2020 until it was revoked on September 14, 2020.
74The respondent takes an opposing position, that the tolling period has been rescinded for legal matters which did not expire during the tolled period. Since the applicant’s claim expired outside of the tolling period it does not qualify to be tolled.
75The applicant provided initial notice of their intention to make a claim April 9, 2021 and then a disability certificate on June 15, 2022. Both dates are far outside the time-period where the tolling was in place. The applicant did not justify why his submissions were made outside the timeline set out in the Schedule.
76I find the legal argument of the respondent persuasive as to the claim being time-barred from proceeding. The applicant’s limitation period did not expire within the tolled period and as such the tolling does not apply to his claim and the applicant did not provide any sufficient reasons as to why the applicant could not have filed his application within the limitation period or why I should apply my authority to extend that period.
77I find that the applicant is not entitled to any COVID-related extension of time. With the limitations period not being met, the applicant is not entitled to non-earner benefits.
78However, even if I had found that this limitation period should be extended, I still do not find that the applicant has not met the burden to be entitled to non-earner benefits on the following basis:
i. Time period: The disability certificate was filed on June 15, 2022 and the Schedule sets out that the respondent is not liable for payments of non-earner benefits for periods not covered by a disability certificate. As such there was no disability certificate for the period of payment from June 4, 2020 to June 4, 2022, so the applicant would not be entitled to payments during this period. The accident took place 81 days into the tolling period, which leaves 102 days worth of time to be tolled. If this timeline was extended by 102 days, that would open potential entitlement up for the period of 91 days since the disability certificate was filed 11 days late. As such, if the timeline was found to be extended, the only period for which NEB benefits could be applied is from June 15, 2022 until September 14, 2022. No entitlement could be applied for the period of June 4, 2020 to June 14, 2022 due to the missing disability certificate.
ii. Even if this timeline was extended to allow for the 91 days of additional non-earner benefits, I do not find that the applicant suffered from an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident during the period at issue for the following reasons:
(a) This is not substantiated or corroborated by the medical records.
(b) You see in the records of Dr. Fung that the applicant’s resumed leisure activities that he enjoyed prior to the accident like fishing, going on walks and more. The applicant engages in most if not all of his pre-accident activities, even if he does them more slowly or with more soreness as alleged by Dr. Fung during his testimony.
(c) From an occupational therapy perspective, the applicant said during his examination before the hearing that he was able to accomplish all the tasks Ms. Gugnani or Mr. Madan, occupational therapists for the applicant, would seek to address in his day-to-day care.
(d) I found that the evidence of Ms. MacRae, the occupational therapist assessor; Dr. Dodig, the neurological assessor; and Dr. Zabieliauskas, the physiatrist assessor, to be a more fair and impartial assessment of the applicant’s state. I find, in line with their opinions, that the applicant is not suffering from any resulting limitations from his accident during the time-period at issue. If he is not suffering from any limitations, then it follows that he does not suffer from an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged prior to the accident. As the applicant is not limited by his accident, he could not be entitled to non-earner benefits.
S.10 of O. Reg. 664
79The Tribunal may grant, under s.10, an award up to 50% of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
80Pursuant to paragraph 35 of S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT) the applicant must prove that the respondent’s conduct rose to the level of being: “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”
81Further, the respondent’s conduct needs to show a pattern of conduct described in Plowright v. Wellington Insurance Co., 1993 OIC File No.: A-003985 (FSCO); to rise to the level of a s.10 award the respondent’s conduct must be an egregious and patently obvious error in adjusting.
82The applicant argues that there were a number of denials which were not put to medical experts, and focussed specifically on the request for a laptop and the graphics card. There was not a medical basis given for that denial but there was a medical basis made in favour of the recommendations in the form of several progress reports, OCF-18’s by Ms. Gugnani, and letters to support the funding requests. The insurer unilaterally denied this treatment plan without seeking a medical opinion on what the applicant feels to be a very important part of his recovery.
83The respondent submits that the denial was based on the applicant having never disclosed the particulars and requested further information about why a computer was needed or how it would be therapeutically linked to treatment for the accident at issue.
84As I have found that the applicant is not entitled to payment of these benefits in line with the facts and caselaw presented by the parties, the denial of the insurer can not be said to rise to the level of an egregious or patently obvious error in adjusting. I decline to order an award.
Interest
85Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue payments of benefits, there is no interest to be awarded here.
ORDER
86The applicant has not met the burden of proof to establish entitlement to attendant care benefits, non-earner benefits, any of the treatment plans, a s.10 award or interest.
87The application is dismissed.
Released: October 17, 2023
Julia Fogarty
Adjudicator