Zofia Wackowska v. Aviva Insurance Canada, 2024 CanLII 108223

Citation: Wackowska v. Aviva Insurance Canada, 2024 ONLAT 22-009110/AABS

Licence Appeal Tribunal File Number: 22-009110/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:

Zofia Wackowska

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Steven Glowinsky, Counsel Jonathan Farine, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: By way of written submissions

OVERVIEW

1Zofia Wackowska, the applicant, was involved in an automobile accident on November 13, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 11, 2021, to November 12, 2023?

ii. Is the applicant entitled to $3,092.00 for chiropractic services, proposed by In Motion in a treatment plan/OCF-18 (“treatment plan”) submitted January 18, 2022?

iii. Is the applicant entitled to $3,308.24 for chiropractic services, proposed by In Motion in a treatment plan submitted November 29, 2021?

iv. Is the applicant entitled to $2,928.24 for chiropractic services, proposed by In Motion in a treatment plan submitted March 21, 2022?

v. Is the applicant entitled to $3,097.73 for chiropractic services, proposed by In Motion in a treatment plan submitted June 13, 2022?

vi. Is the applicant entitled to $2,928.24 for chiropractic services, proposed by In Motion in a treatment plan submitted August 8, 2022?

vii. Is the applicant entitled to $2,925.66 ($6,040.32 less $3,114.66 approved) for psychological services, proposed by In Motion in a treatment plan submitted June 6, 2022?

viii. Is the applicant entitled to $1,574.48 for chiropractic and acupuncture services, proposed by In Motion in a treatment plan submitted January 16, 2023?

ix. Is the applicant entitled to $1,574.48 for chiropractic and acupuncture services, proposed by In Motion in a treatment plan submitted March 27, 2023?

x. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by TDI Chronic Pain and Medical Assessments Inc. in a treatment plan submitted March 2, 2022?

xi. Is the applicant entitled to $2,499.22 for a psychological assessment, proposed by TDI Chronic Pain and Medical Assessments Inc. in a treatment plan submitted April 22, 2022?

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

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

PRELIMINARY ISSUES

3In the Case Conference Report and Order of May 12, 2023 (“CCRO”), whether the applicant was subject to treatment within the Minor Injury Guideline (“MIG”) was listed as an issue in dispute. Both parties have now advised that this issue is resolved and no longer in dispute, so I have not included it as an issue in the list above.

4In addition, the applicant only lists two treatment plans for chiropractic services in the amount of $2,928.24 as issues in dispute, while the CCRO lists three. She only makes reference to two treatment plans of this amount in her submissions. The respondent submits that two of the treatment plans are identical and were submitted within weeks of each other. I have reviewed the treatment plans in dispute and they both bear the same Health Claims for Auto Insurance (“HCAI”) document number. I am satisfied that there are only two treatment plans in the amount of $2,928.24 in dispute, so I have amended the issues above accordingly.

5The CCRO states that the non-earner benefit in dispute is from November 13, 2021, to date and ongoing. However, the applicant clarified in her submissions that she is seeking this benefit from December 11, 2021, to November 12, 2023, which is in line with her maximum entitlement under the Schedule. I have amended the date range above accordingly.

6The respondent submits that the two treatment plans listed in the CCRO for chiropractic treatment in the amount of $1,574.48 appear to be duplicates, and accordingly one should not be an issue in dispute. It submits that the treatment plan submitted January 16, 2023, does not correspond to a treatment plan in its file. The applicant refers to them as being separate treatment plans in her submissions, lists them both as issues in dispute, and provided separate denial letters for each. Although the applicant did not provide me with copies of the treatment plans, without clear evidence that they are actually the same, I am not prepared to remove one as an issue in dispute.

RESULT

7The applicant is entitled to a non-earner benefit of $185.00 per week from December 11, 2021, to November 12, 2023.

8The applicant is entitled to $2,561.71 of the disputed $3,092.00 for chiropractic services, proposed by In Motion in a treatment plan submitted January 18, 2022.

9The applicant is entitled to $2,476.96 of the disputed $2,928.24 for chiropractic services, proposed by In Motion in a treatment plan submitted March 21, 2022.

10The applicant is entitled to $2,476.96 of the disputed $3,097.73 for chiropractic services, proposed by In Motion in a treatment plan submitted June 13, 2022.

11The applicant is entitled to $2,400.00 of the disputed $2,499.22 for a psychological assessment, proposed by TDI Chronic Pain and Medical Assessments Inc. in a treatment plan submitted April 22, 2022.

12The applicant is not entitled to the remainder of the treatment plans in dispute.

13The applicant is entitled to interest on overdue benefits pursuant to s. 51.

14The applicant is not entitled to an award.

PROCEDURAL ISSUE

15The applicant requests that the following documents relied on by the respondent should be excluded from this hearing or given no weight, as they were not served before the deadline set out in the CCRO:

i. Surveillance Report dated August 11, 2023, located at Tab 18 of the respondent’s submissions; and

ii. S. 44 Multidisciplinary Report dated September 19, 2023, located at Tab 11 of the respondent’s submissions.

16For the following reasons, I will accept and consider both of these documents at this hearing. I am not prepared to reduce their weight on account of their late service.

17The applicant argues that the respondent did not bring a motion to include the late-served productions, and neither sought nor received permission to rely on them. She submits that it would be prejudicial to the applicant for the Tribunal to consider late-served documents. She argues that she served all of her documentation prior to the deadline, and she refrained from contravening the CCRO despite receiving helpful documentation after the deadline. She submits that it would be patently unfair to allow the respondent to rely on late-served documentation when she has properly limited her submissions to the evidentiary time period ordered by the Tribunal.

18Pursuant to the CCRO, the parties agreed to exchange a number of documents by no later than 60 calendar days from the case conference of May 2, 2023, that date being July 1, 2023. As this date fell on a Saturday, the actual deadline was July 3, 2023. Included in the CCRO’s list of documents was any surveillance the respondent intended to rely on. I note that the CCRO is silent with respect to s. 44 reports specifically, but does state that the respondent shall provide the entire accident benefits file by that deadline. A further deadline of 120 days after the case conference was specified for the disclosure of any additional items responsive to items that had already been produced. That deadline was August 30, 2023. The applicant’s submissions were due on January 10, 2024. The CCRO indicates that these orders are subject to the hearing adjudicator’s discretion.

19Firstly, I find that the surveillance report shall be admitted as evidence.

20The surveillance report was served on the applicant on August 22, 2023, and the respondent advised at that time that it would be relying on the evidence at the hearing. The applicant submits that due to the respondent’s late service of the surveillance report, she was unable to procure responsive medical opinions and statements from lay witnesses, as there was only 8 days left before the final production deadline. However, the applicant has not adduced any evidence of an attempt or failure to obtain these documents. I also note that the applicant was able to respond to the contents of the surveillance report in her reply submissions. I find that there is no evidence that the applicant was actually prejudiced by the late service of the surveillance report.

21I also find that the s. 44 reports shall be admitted into evidence.

22The applicant was assessed by a physiatrist on June 1, 2023, a psychiatrist on June 16, 2023, and an occupational therapist on June 21, 2023. All of these assessments were completed to address whether she is entitled to non-earner benefits, which is an issue in dispute at this hearing. The report from these assessments is dated September 19, 2023.

23The applicant attended these assessments, and was therefore aware that they had taken place, and what their purpose was. She was also likely aware that the resulting reports would be relied upon by the respondent at this hearing.

24In her reply submissions, the applicant made many references to the s. 44 reports at issue. It cannot be said that she did not have the ability to review them prior to this hearing. The applicant has not provided me with any evidence that had the reports been served earlier, she would have obtained responding medical evidence. I find that there is no evidence that she will be prejudiced if I accept the late-served reports into evidence.

25In addition, the s. 44 reports deal directly with the applicant’s medical condition and functional abilities, which is information that is directly relevant to the dispute before me. I accordingly find that the documents should be admitted into evidence.

ANALYSIS

Non-Earner Benefit

26I find that the applicant is entitled to a non-earner benefit in the amount of $185.00 per week from December 11, 2021, to November 12, 2023.

27Section 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit 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.”

28The Court of Appeal set out the guiding principles for non-earner benefit entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities. One of the principles in Heath is that the phrase "engaging in" means more than isolated post-accident attempts to perform activities that a person was able to perform before the accident. The activity must be viewed as a whole, and someone who merely goes through the motions cannot be said to be "engaging in" an activity. Further, the manner in which the activity is performed and the quality of performance must also be considered. If the degree to which someone can perform an activity is sufficiently restricted, it cannot be said that he or she is truly “engaging in” the activity. Where pain is a primary factor, one must consider whether the degree of pain experienced practically prevents a person from engaging in activities, not whether they can physically do them.

29The respondent submits that, prior to the accident, the applicant led a sedentary lifestyle, was in essence a homemaker who rarely left her house as part of her daily routine, and did not participate with any sports or hobbies prior to the accident. I find that this assertion is not supported by the evidence before me. In fact, there is no evidence before me that says the applicant rarely left her house, led a sedentary lifestyle, or did not have any hobbies.

30I find that the evidence before me is that, prior to the accident, the applicant was independent in her housekeeping and self-care tasks. She was solely responsible for the household meal preparation and laundry, and was primarily responsible for the remainder of the housekeeping tasks. On a typical weekday, she would attend to chores, prepare meals, and run errands. She usually went to the grocery store once per week. She enjoyed going hiking, fishing, picking mushrooms, going on day trips, and spending time with her friends and family. She also enjoyed cooking, baking, and sewing. She walked her dog three times per day. She described herself as an active person.

31I find that the evidence establishes that, as a result of the accident, the applicant suffers from ongoing pain, mostly to her neck, shoulders, and lower back. This pain makes it difficult for her to complete various tasks as outlined below. In addition, the applicant suffers from psychological difficulties that also have an impact on her interest, motivation, and ability to complete tasks. I find that the following evidence is compelling and corroborative:

i. The applicant was assessed by Dr. Monique Costa El-Hage, s. 44 psychologist, on May 24, 2022. Dr. El-Hage diagnosed the applicant with Major Depressive Disorder with Anxious Distress and noted that her pre-existing depression symptoms were exacerbated by the accident. Dr. El-Hage indicated that the applicant had lost interest in her activities. She completed the household cleaning but not as well as before, and it took her longer due to pain. Her son was assisting with meal preparation. She no longer picked mushrooms or went out to meet friends.

ii. On June 6, 2022, the applicant was assessed by Vera Iskhakova, registered psychotherapist, and Dr. Kenneth Keeling, psychologist. She reported that although she was able to complete most of her self-care tasks on her own, she needed more time to do them and had to simplify and modify them. She had no motivation to cook homemade food because of her back pain after 15-20 minutes. She preferred to interact less with her friends and did not want to meet new people in her community. She lost motivation to socialize and did not have enough energy to go out. Ms. Iskhakova and Dr. Keeling opined that the applicant’s emotional/psychological functioning was likely to significantly affect her recreational activities.

iii. The applicant underwent a s. 44 assessment with Dr. Ida Cavaliere, physiatrist, on June 1, 2023. She reported pain to her left shoulder which was worsened by reaching overhead and prolonged use of her left upper extremity. She also reported low back pain which was aggravated by bending, lifting, and prolonged laying, sitting, standing, and walking. She reported requiring assistance from her son and cousin with heavy lifting and deep cleaning. All of her other chores were managed with pacing and activity modifications. During flare-ups of her pain, her husband assisted her with bathing and dressing. She no longer enjoyed going for walks or sewing. She socialized with friends in a modified and reduced capacity.

iv. During an occupational therapy assessment with Deena Rogozinsky on June 5 and 12, 2023, the applicant made a small meal. It took her 32 minutes to fry an egg and cut up some watermelon, and she was not able to clean up after because she was in too much pain. Ms. Rogozinsky noted that 32 minutes is a prolonged period of time to complete this task. Ms. Rogozinsky noted that the applicant used activity modification to complete various self-care tasks, such as putting on her socks and getting dressed, but that these tasks still caused her pain. She wore sleeveless shirts most days because it hurt less to put them on, and she avoided wearing certain clothing unless she was going out of her home. She brushed her teeth once a day because she no longer has the motivation to do it more often. Her husband helped wash her hair, which she now does less often. Her son helped her with laundry and changing the bedding. Her son and cousin helped her clean the bathroom. Ms. Rogozinsky noted that, in addition to physical challenges, the applicant’s mood was significantly affecting her ability to follow through with tasks.

v. After a s. 44 psychological assessment on June 16, 2023, with Dr. Mohamed Attia, psychiatrist, the applicant was diagnosed with Major Depressive Disorder secondary to generalized medical condition (chronic pain). Dr. Attia noted that the applicant spent most of her days at home watching TV, and needed help putting on her socks and brushing her hair. She felt that she could no longer go mushroom picking, go on picnics, or go fishing because of her pain.

vi. The applicant was also assessed by Dr. Leon Steiner, psychologist, in May and June of 2023. Dr. Steiner indicated that the applicant had difficulty with memory, focus, and concentration. She relied on her son and husband to take care of most of the household tasks. Due to passenger anxiety, she traveled in a vehicle less frequently than before, and would decline invitations from friends to avoid being in a vehicle. She spent most of her time at home watching TV.

vii. On June 21, 2023, the applicant underwent a s. 44 assessment with Margaret Ramsay, occupational therapist. She reported to Ms. Ramsay that she did not shower or wash her hair as frequently as before due to pain. She would go to the grocery store once per month as opposed to once per week. She could only prepare meals that do not require a lot of standing, and she cooked less frequently than before. She cleaned the bathroom with the assistance of her son or cousin. Her son assisted her with the laundry. She typically only went out in the community for appointments due to her feelings of anxiety in a vehicle. She no longer sewed or went fishing with her husband. She reported only being able to walk approximately 100-200 metres.

32The respondent submits that during assessments, the applicant displayed pain behaviours that did not correspond to objective testing. She was observed to walk and sit normally during testing, and the respondent argues that this directly contradicts her assertions that she cannot go on walks since the accident.

33I do not accept this argument. It is my view that the fact that the applicant is able to walk around her apartment and sit down does not mean that these activities do not cause her pain, or that she is not restricted in the amount of time she can do these activities for. The applicant reported to various assessors that she was only able to walk for approximately 100 metres at a time and walked her dog less frequently than before. When she walked on a 500 metre trail, she had to stop four times for 10 minute breaks. There is no compelling evidence that she was restricted in her ability to walk prior to the accident, and it appears that her walking ability has been significantly curtailed.

34I do not accept the respondent’s submission that the applicant’s back pain is the result of degenerative disc disease that was not caused by the accident. There is no compelling evidence that the applicant was suffering from back pain prior to the accident. She did not report back pain to her family physician prior to the accident. The only assessor who commented on the whether any of the applicant’s physical impairments predated the accident was Dr. Todd Levy, physician, after his assessment on April 5, 2022. Dr. Levy opined that, based on the applicant’s pre-existing deconditioned state, it is more likely than not that her measured reduction in thoracolumbar range of motion preceded the subject accident. I do not know where this information came from. He did not refer to any documentation that spoke about the applicant’s pre-accident range of motion or “deconditioned state”. I place very little weight on this opinion, as it seems to be conjecture and is an outlier amongst the rest of the opinions before me.

35The respondent relies on Dr. Attia and Dr. Cavaliere’s opinions that the applicant did not suffer a complete inability to carry on a normal life. Various other assessors noted the applicant’s loss of interest in her usual activities, or a lack of ability to follow through with activities due to her psychological difficulties, however this was not addressed by Dr. Attia. In fact, Dr. Attia did not refer to the applicant’s psychological condition when forming his opinion. His opinion was based on the assertion that the applicant’s recent pain medication had restored a degree of function that allowed for task completion. Aside from mentioning a recent medication change that was more effective, there is no indication in Dr. Attia’s report as to what this medication change allowed the applicant to do that she was unable to before, or the degree of its effectiveness. For those reasons, I am not persuaded by Dr. Attia’s opinion with respect to whether the applicant sustained a complete inability to carry on a normal life.

36Despite opining that the applicant does not suffer a complete inability to carry on a normal life, Dr. Cavaliere did not explain why she came to that conclusion. In fact, she notes immediately after providing her opinion that the applicant reported a number of functional difficulties. Despite the applicant’s reports, Dr. Cavaliere stated that the applicant did not have any functional limitation or physical limitations. She then stated: “given the limitations on the examination today, I would recommend completion of a diagnostic ultrasound of the left shoulder to assess for intrinsic shoulder pathology.” I find that this contradicts Dr. Cavaliere’s statement that there were no physical limitations. Considering the absence of any analysis or explanation, and her contradictory statement regarding the applicant’s physical limitations, I place little weight on Dr. Cavaliere’s opinion that the applicant does not suffer a complete inability to carry on a normal life.

37By contrast, Dr. Steiner concluded that the applicant suffers from a complete inability to carry on a normal life. He stated that the applicant’s normal life before the accident consisted of taking long walks with her husband in parks, visiting friends, picking mushrooms in the forest, and hosting dinners with friends. She now spends most of her time at home watching television. Her changes in social and recreational activities were due to passenger anxiety, pain, physical limitations, and anhedonia. Dr. Steiner provided reasons and an explanation for his opinion, and the limitations and difficulties mentioned were consistently reported to other assessors. I therefore place more weight on his opinion than that of Dr. Attia or Dr. Cavaliere.

38The respondent submits that surveillance of the applicant confirms that she does not suffer from a complete inability to carry on a normal life. I do not agree. The surveillance report contains still photos of the applicant either sitting or standing on her balcony. There are no photographs of the applicant engaging in any tasks that she reported not being able to do. I do not accept that the applicant’s ability to sit or stand on her balcony for short periods of time is indicative of her ability to carry on a normal life. Further, the surveillance was conducted for the most part of three consecutive days, however the applicant was never seen leaving her apartment; if anything, the surveillance report helps to corroborate the applicant’s claim that she spends most of her days at home.

39I find that that the applicant is almost entirely restricted from the activities that once brought her joy. Where she once enjoyed going for walks and hikes, she is now restricted in the amount of time she can walk for. She no longer sews, bakes, picks mushrooms, or goes fishing. She can only make simple meals, whereas before she loved to make more elaborate meals for friends and family. Her ability to socialize has been restricted, as her vehicular anxiety restricts her from traveling as a passenger. I find that the applicant’s inability to participate in virtually any of her leisure activities is significant and substantial.

40I accept that the applicant has been able to return to some of her pre-accident activities. However, I am not persuaded by the respondent’s argument that she is truly “engaging in” those activities. Firstly, the applicant’s pain makes it difficult for her to attempt heavier tasks, but it also shortens the amount of time she is able to spend on the lighter tasks. Her range of motion is restricted, and she needs help from others to do many of her housekeeping and self-care activities. These activities also take her longer. I find that the manner that she engages in these tasks has been significantly affected by her pain. Secondly, the applicant’s depression and anxiety are impacting her ability to complete tasks. She avoids being in a vehicle due to anxiety, and therefore leaves her home far less often than before. Her depression has also caused her to lose interest and pleasure in her usual activities, and she lacks the motivation to engage in them.

41I accordingly find that the degree to which the applicant can perform her self-care tasks, housekeeping tasks, and leisure activities, are sufficiently restricted due to her pain and psychological difficulties that it cannot be said that she is truly “engaging in” those activities.

42On a balance of probabilities, I find that the applicant has suffered a complete inability to carry on a normal life, as she sustained impairments that continuously prevent her from engaging in substantially all of the activities in which she was ordinarily engaged before the accident.

43To 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.

$3,092.00 for chiropractic services, proposed by In Motion in a treatment plan submitted January 18, 2022

44I find that the applicant is entitled to $2,561.71 out of the $3,092.00 in dispute with respect to this treatment plan.

45This treatment plan proposes 16 sessions of physical rehabilitation, 8 sessions of acupuncture, 16 sessions of “therapy”, a cervical pillow, and motion medicine. The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, and a return to activities of normal living.

46The respondent denied this treatment plan based on Dr. Levy’s opinion that the applicant’s injuries fell within the MIG, and that further facility-based treatment delivered outside of the MIG would not be considered medically indicated. Dr. Levy also opined that, because the applicant did not have any complaints of neck pain or vertigo, there was no indication for the provision of motion medicine or a cervical pillow.

47Physical treatment past the initial post-accident period was recommended by the applicant’s family physician and treating chronic pain physician. With respect to the applicant’s ongoing attempts at pain relief, I prefer the evidence of the applicant’s treating physicians over Dr. Levy, a physician who only assessed the applicant once.

48In addition, considering the extent of the applicant’s pain and its effect on substantially all of her daily activities, I accept that further facility-based therapy was reasonable and necessary at the time the treatment plan was submitted. The goal of pain relief was legitimate, and the goal of trying to get the applicant back to her activities of normal living was also legitimate only two months after the accident. Further, at the time this treatment plan was submitted, the applicant had not yet been referred to a pain clinic, so the only method of controlling her pain was through therapy and medication.

49I agree with the respondent that the line item for “therapy” is not defined or explained. It is to be provided by a chiropractor who is also to provide “physical rehabilitation”, a different line item. The applicant has not provided any explanation. As I do not have any information regarding what “therapy” entails or how it differs from “physical rehabilitation”, I find that the $451.28 proposed for this item is not reasonable and necessary.

50I find that the proposed cervical pillow is reasonable and necessary. A cervical pillow was also recommended by Daljeet Johal, occupational therapist, in her report of January 17, 2023. The purpose of the pillow was to reduce cervical spine discomfort while the applicant is sleeping. The applicant advised multiple practitioners that she had difficulty sleeping due to pain. Despite Dr. Levy’s assertion that the applicant was not experiencing neck pain, she advised multiple assessors, her family physician, and her chronic pain physician that she was.

51I am not persuaded that the motion medication is reasonable and necessary. The applicant has not explained what condition this medication purports to treat, and it is not explained in the treatment plan itself.

52I accordingly find, on a balance of probabilities, that the applicant is entitled to $2,561.71, which is comprised of 16 sessions of physical rehabilitation, 8 sessions of acupuncture, the preparation of the treatment plan, the cervical pillow, and HST on the pillow.

$3,308.24 for chiropractic services, proposed by In Motion in a treatment plan submitted November 29, 2021

53I find that the applicant is not entitled to this treatment plan.

54There is no treatment plan for the amount of $3,308.24 before me. The applicant submits that the treatment plan was for chiropractic and acupuncture services, but did not make any submissions about the cost of the treatment, or how many treatment sessions were being proposed. In order to prove that a treatment plan is reasonable and necessary, the applicant must identify what treatment they are seeking and the cost of that treatment. As the applicant has not done so, I find that she has not met her burden in proving that this treatment plan is reasonable and necessary.

$2,928.24 for chiropractic services, proposed by In Motion in a treatment plan submitted March 21, 2022

55I find that the applicant is entitled to $2,476.96 out of the proposed $2,928.24 for this treatment plan.

56This treatment plan proposes 16 sessions of physical rehabilitation, 8 sessions of acupuncture, and 8 sessions of exercise. The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, and a return to activities of normal living.

57For the same reasons as above, I find that it was appropriate for the applicant at this stage in her recovery to continue with facility-based treatment in order to help lessen her pain.

58The respondent submits that there is an unexplained and unjustified fee in the amount of $451.28 proposed in this treatment plan. This fee pertains to 8 sessions of exercise with a chiropractor. The applicant has not provided any information regarding what this treatment entails, how it differs from “physical rehabilitation”, or why the applicant needed to exercise with her chiropractor as opposed to at home. The applicant has the burden of proving that this item is reasonable and necessary, and I find that she has not done so.

59I accordingly find, on a balance of probabilities, that $2,476.96 for this treatment plan is reasonable and necessary, which is comprised of physical rehabilitation, acupuncture, and the cost of preparing the treatment plan.

$3,097.73 for chiropractic services, proposed by In Motion in a treatment plan submitted June 13, 2022

60I find that the applicant is entitled to $2,476.96 out of the $3,097.73 in dispute for this treatment plan.

61This treatment plan proposed 16 sessions of physical rehabilitation, 8 sessions of acupuncture, 8 sessions of “therapy”, and an item identified as “posture support”. The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, and a return to activities of normal living.

62In addition to the reasons above, the applicant’s family physician also indicated in May 2022 that she suspected that the applicant had become dependent on Percocet and it was not helping to improve her symptoms. I find that it was reasonable and necessary to continue seeking other avenues for pain relief when strong painkillers were not working.

63However, as above, the applicant has not provided any information regarding the 8 sessions of “therapy” to be completed with a chiropractor. I find that the applicant has not met her burden to prove that this item is reasonable and necessary.

64Similarly, the applicant has not proven that the “posture support” is reasonable and necessary, as no explanation has been provided regarding what this item is or why it is needed. Further, despite Ms. Johal making a number of recommendations for assistive devices, she did not recommend anything related to the applicant’s posture.

65Accordingly, I find on a balance of probabilities that the applicant is entitled to $2,476.96, as the cost of the physical rehabilitation, acupuncture, and preparation of the treatment plan were reasonable and necessary at the time it was submitted.

$2,928.24 for chiropractic services, proposed by In Motion in a treatment plan submitted August 8, 2022

66I find that the applicant is not entitled to this treatment plan.

67This treatment plan proposes 16 sessions of physical rehabilitation, 8 sessions of acupuncture, and 8 sessions of back muscle stimulation. The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, and a return to activities of normal living.

68The applicant began receiving nerve block injections from Dr. Amrit Sehdev at Rivlin Medical Group in July 2022 on approximately a weekly basis. The records from the pain clinic indicate that the injections were providing her with relief. While Dr. Sehdev initially recommended physiotherapy and chiropractic treatments, he did not make further similar recommendations after he began administering the injections. I do not take his initial recommendation to mean that this type of treatment should necessarily continue indefinitely. I agree with the respondent that the applicant has not explained why, if the injections were providing her with relief, she also required the proposed physical treatment and acupuncture. There is also a lack of evidence as to the efficacy of the physical rehabilitation and acupuncture while she was being treated with nerve blocks.

69The respondent also relies on the s. 44 report of Dr. Ahmad Belfon, general practitioner, who assessed the applicant on November 24, 2022. Dr. Belfon opined that the applicant has now had extensive facility-based therapy, and that further facility-based therapy would likely not lead to further therapeutic or restorative gains. He recommended that the applicant continue with daily stretching, exercises, and pharmacological management for her pain. I am persuaded by Dr. Belfon’s opinion, as it is corroborated by the evidence before me which shows that the applicant’s physical condition was not improving even with facility-based treatment.

70In response to Dr. Belfon’s opinion, the applicant submits that even if additional treatment would not be helpful, future treatment can still aid in the avoidance of deterioration and be reasonable and necessary. While in principle this is certainly possible, the applicant has not provided compelling medical evidence indicating that the proposed treatment would in fact help to avoid deterioration. Further, she has not provided evidence that other treatment modalities, such as stretching and exercise, would not advance this goal. Therefore, I find that the proposed treatment plan is not reasonable and necessary.

$1,574.48 for chiropractic and acupuncture services, proposed by In Motion in a treatment plan submitted January 16, 2023

71I find that the applicant is not entitled to this treatment plan.

72The respondent submits that this plan does not correspond to anything in its file and appears to be a duplication of the treatment plan below. The applicant has not directed me to a copy of this treatment plan, or explained what is contained within it. As she has not identified what treatment she is seeking, or shown that such a treatment plan exists, I find that the applicant has not met her burden of proving that she is entitled to it.

$1,574.48 for chiropractic and acupuncture services, proposed by In Motion in a treatment plan submitted March 27, 2023

73I find that the applicant is not entitled to this treatment plan.

74Although the treatment plan is not in evidence before me, based on the contents of a s. 44 report, I have gleaned that the treatment plan proposes 8 sessions of physical rehabilitation and 8 sessions of acupuncture.

75At the time this treatment plan was submitted, the applicant was still receiving nerve block injections, which according to the records of Dr. Sehdev were providing her with relief. Due to a lack of evidence regarding why both treatment modalities were needed simultaneously, or to what degree the proposed treatment was helping the applicant while she was receiving injections, I find that the applicant has not met her burden in proving that this treatment plan is reasonable and necessary.

$2,460.00 for a chronic pain assessment, proposed by TDI Chronic Pain and Medical Assessments Inc. in a treatment plan submitted March 2, 2022

76I find that the applicant is not entitled to the treatment plan for a chronic pain assessment.

77The treatment plan in dispute proposed a chronic pain assessment with Dr. Grigory Karmy, in the amount of $2,460.00.

78The applicant was referred by her family physician to Rivlin Medical Group, and underwent a chronic pain assessment with Dr. Sehdev on June 30, 2022. She subsequently received regular nerve block injections from Dr. Sehdev. Despite the denial of this treatment plan, she attended the assessment with Dr. Karmy on July 5, 2022.

79The respondent submits that the applicant has already benefitted from a chronic pain assessment and has failed to explain why she requires another chronic pain assessment from a different treatment provider. The applicant submits that a chronic pain assessment would comprehensively identify various treatment options that may aid an injured person, not just injections.

80Aside from some differences in their recommendations, both assessors were able to identify comprehensive treatment options other than injections. Dr. Sehdev recommended a trial of nerve blocks, physiotherapy and chiropractic treatments, a graded exercise program, and a trial of Cymbalta. Dr. Karmy recommended an active exercise program, physiotherapy, acupuncture, massage, chiropractic adjustments, a psychological assessment, and psychological treatment. I find that the applicant has not provided compelling evidence as to why Dr. Karmy’s assessment was required when she already underwent a comprehensive chronic pain assessment with Dr. Sehdev. I therefore find, on a balance of probabilities, that the treatment plan in dispute is not reasonable and necessary.

$2,925.66 ($6,040.32 less $3,114.66 approved) for psychological services, proposed by In Motion in a treatment plan submitted June 6, 2022

81I find that the applicant has not established her entitlement to the remainder of this treatment plan.

82The treatment plan in dispute was for psychotherapy sessions, and was partially approved in the amount of $3,114.66, leaving $2,925.66 in dispute. The respondent approved $58.19 per hour for the treatment provider, rather than the $149.61 per hour proposed in the treatment plan. I note that, although the treatment plan indicated that the provider was Dr. Keeling, a psychologist, the parties appear to be in agreement that the treatment was actually to be provided by Ms. Iskhakova, a registered psychotherapist. The records before me from the treatment sessions that subsequently ensued confirm that Ms. Iskhakova provided the treatment.

83The applicant relies on A.S. v. Aviva Insurance Company, 2020 CanLII 12787 (“A.S.”), J.V. v. Intact Insurance Company, 2019 CanLII 130366 (“J.V.”), and Johnson v. Aviva Insurance Company of Canada, 2023 CanLII 77315 (“Johnson”). She argues that the appropriate rate for a registered psychotherapist providing cognitive behavioural therapy is $149.61 per hour.

84The Guideline specifies that services provided by health care professionals/providers, unregulated providers, and other occupations not listed in the Guideline are not covered by the Guideline. The amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved. I find that, where there is a dispute regarding the hourly rate for services not listed in the Guideline, the Tribunal has the discretion to decide the hourly rate payable. The applicant bears the burden of proving the appropriate rate on a balance of probabilities.

85Registered psychotherapists are not specifically listed in the Guideline. As such, I must decide the appropriate hourly rate with respect to the services proposed in this treatment plan.

86I note that in J.V., the Tribunal did not make a sweeping statement that a registered psychotherapist providing cognitive behavioural therapy will always attract an hourly rate of $149.61. The decision in that case was made based on a number of factors, such as the provider’s typical hourly rate, her extensive training and experience, and a letter from the Ontario Association of Consultants, Counsellors, Psychometrists, and Psychotherapists.

87In other cases, such as Dhanji v. Aviva Insurance Company of Canada, 2021 CanLII 19424 (“Dhanji”), relied upon by the respondent, the Tribunal found that the appropriate hourly rate for a registered psychotherapist was $100.00, which is what the insurer had agreed to pay. The insured person in that case did not meet their burden of proving that the proposed rate of $149.61 was reasonable and necessary.

88I am not bound by other decisions of this Tribunal, although I may find them persuasive. I do not accept the suggestion in A.S. that psychologists and psychotherapists providing cognitive behavioural therapy should always be paid the same rate, as this is not indicated anywhere in the Schedule or Guideline. Further, while I agree with the decision in Johnson that the services provided by psychotherapists are not limited to the unregulated rate, that does not mean that the rate for a psychotherapist must be higher than the rate for unregulated professionals. The Guideline is silent with respect to the maximum rate for registered psychotherapists, and thus the rate will depend on the facts of each case. I therefore prefer the type of evidentiary analysis that was completed in J.V. and Dhanji.

89Ms. Iskhakova and Dr. Keeling recommended in their report that the applicant receive 14 sessions of cognitive behavioural therapy. The treatment plan indicates that “cognitive behavioural strategies” would be employed, and 14 sessions of psychotherapy were proposed. I accept that the type of treatment to be provided is cognitive behavioural therapy. However, this fact alone is not enough to justify the proposed rate.

90The applicant has not provided me with evidence of Ms. Iskhakova’s credentials, aside from indicating that she is a registered psychotherapist. I do not know her educational background, any information about her training or expertise, or what her typical hourly rate is. Without this information, I find that the applicant has not met her burden in proving on a balance of probabilities that the appropriate hourly rate for the proposed treatment is $149.61.

$2,499.22 for a psychological assessment, proposed by TDI Chronic Pain and Medical Assessments Inc. in a treatment plan submitted April 22, 2022

91I find that the applicant is entitled to $2,400.00 of the proposed $2,499.22 for a psychological assessment.

92Despite the denial of the treatment plan, the applicant ultimately underwent this assessment on June 6, 2022. It was conducted by Ms. Iskhakova and Dr. Keeling.

93The respondent has already required the applicant to attend two assessments with Dr. El-Hage, psychologist, and an assessment with Dr. Attia, psychiatrist. As I have indicated above, it is clear from the evidence that the applicant suffers from psychological impairments as a result of the accident. I agree with the applicant’s submission that the Schedule allows both an insurer and an insured the opportunity to reasonably assess the accident-related injuries. Clearly the respondent felt that it was reasonable and necessary to pay for its own assessments. It cannot be said that this assessment is only warranted when completed by an insurer’s chosen assessor.

94Further, Dr. El-Hage indicated that the applicant may benefit from psychotherapeutic interventions. However, at the time of her report, the applicant was already receiving treatment from her psychiatrist which she felt was adequate in addressing her symptoms; that was the reason why Dr. El-Hage opined that this treatment plan was not reasonable and necessary. The evidence before me is that after Dr. El-Hage’s assessment, the applicant’s psychiatrist moved away, and she subsequently sought and received treatment from Ms. Iskhakova. I find that, in addition to the reason above, a psychological assessment for the purposes of treatment planning was reasonable and necessary when the applicant became interested in receiving treatment from Ms. Iskhakova.

95The respondent submits that the applicant is already benefitting from psychotherapy through In Motion and has failed to explain why she now needs to start attending TDI Chronic Pain and Medical Assessments Inc. for psychological treatment. However, the treatment plan in dispute is not for psychological treatment, it is for a psychological assessment with Ms. Iskhakova, the same psychotherapist that is treating her at In Motion. As indicated above, this assessment already took place, and the results of the assessment were what prompted the submission of the treatment plan for psychotherapy. I accept that the assessment was required in order to determine the applicant’s diagnoses and treatment recommendations.

96The respondent also takes issue with the cost of the assessment. It submits that the assessment would be conducted by a psychotherapist, and therefore the hourly rate of $149.61 is excessive. However, it appears that the assessment was conducted by both practitioners. Dr. Keeling is a psychologist and in accordance with the Guideline, he is entitled to a rate of $149.61 per hour. Dr. Keeling supervised Ms. Iskhakova, but also provided the clinical formulation and diagnosis in the report. I therefore do not accept the respondent’s submission that the cost of the assessment should be reduced on that basis.

97Section 25(5)(a) of the Schedule limits the cost of an assessment and preparation of the reports in connection with it to $2,000.00 plus HST. The amount proposed in the treatment plan for the assessment and documentation was $2,099.22. This exceeds the maximum amount set out in s. 25. I note that the report was very detailed and involved the administration of seven psychological tests, and I find that this justifies the maximum amount payable under s. 25(5)(a). I have accordingly reduced the amount payable for the assessment and report preparation to $2,000.00.

98The treatment plan also proposed $200.00 for translation services, and $200.00 for the completion of the treatment plan itself. The applicant speaks Polish and requires interpretation assistance. I find that these costs are reasonable and necessary. As such, the total amount payable for this treatment plan is $2,400.00.

Interest

99I find that interest is applicable on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

100The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

101The applicant made no submissions regarding an award and did not list it as an issue in dispute in her submissions, although she did not make any submissions as to whether she was abandoning her claim for it. In the absence of submissions or evidence, I find that she has not met her burden in demonstrating entitlement to an award.

ORDER

102The applicant is entitled to a non-earner benefit of $185.00 per week from December 11, 2021, to November 12, 2023.

103The applicant is entitled to $2,561.71 of the disputed $3,092.00 for chiropractic services, proposed by In Motion in a treatment plan submitted January 18, 2022.

104The applicant is entitled to $2,476.96 of the disputed $2,928.24 for chiropractic services, proposed by In Motion in a treatment plan submitted March 21, 2022.

105The applicant is entitled to $2,476.96 of the disputed $3,097.73 for chiropractic services, proposed by In Motion in a treatment plan submitted June 13, 2022.

106The applicant is entitled to $2,400.00 of the disputed for a psychological assessment, proposed by TDI Chronic Pain and Medical Assessments Inc. in a treatment plan submitted April 22, 2022.

107The applicant is not entitled to the remainder of the treatment plans in dispute.

108The applicant is entitled to interest on overdue benefits pursuant to s. 51.

109The applicant is not entitled to an award.