Chambers v. Zenith Insurance Company, 2024 CanLII 108229

Citation: Chambers v. Zenith Insurance Company, 2024 ONLAT 23-003678/AABS

Licence Appeal Tribunal File Number: 23-003678/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:

Melissa Chambers

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Lawson Hennick, Counsel

For the Respondent:

Jennifer Singh, Counsel

HEARD by Videoconference:

May 27 and 28, 2024

OVERVIEW

1Melissa Chambers (the “applicant”) was involved in an automobile accident on July 23, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Zenith Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the start of the videoconference hearing, the applicant withdrew the issue of whether she sustained a catastrophic impairment as defined in the Schedule. The parties also advised that they resolved issues 10 and 11 as listed in the Case Conference Report and Order released November 24, 2023.

ISSUES

3The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from August 19, 2021 to July 23, 2023?

2. Is the applicant entitled to $5,289.63 for psychological services, proposed by Rehab First Inc. in a treatment plan/OCF-18 (“treatment plan”) submitted March 3, 2022 and denied March 16, 2022?

3. Is the applicant entitled to $872.50 for psychological services, proposed by Rehab First Inc. in a treatment plan submitted March 3, 2022 and denied March 16, 2022?

4. Is the applicant entitled to $3,930.15 for physiotherapy services, proposed by Rehab First Inc. in a treatment plan submitted October 13, 2022 and denied October 25, 2022?

5. Is the applicant entitled to $6,819.33 for other assistive devices, proposed by Rehab First Inc. in a treatment plan submitted August 12, 2022 and denied August 26, 2022?

6. Is the applicant entitled to $3,292.28 for physiotherapy services, proposed by Rehab First Inc. in a treatment plan submitted September 27, 2022 and denied October 11, 2022?

7. Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by Innovative Occupational Therapy Services in a treatment plan submitted September 27, 2022 and denied October 14, 2022?

8. Is the applicant entitled to $6,033.50 for occupational therapy services, proposed by Innovative Occupational Therapy Services in a treatment plan submitted October 3, 2022 and denied October 14, 2022?

9. Is the applicant entitled to $2,944.75 for physiotherapy services, proposed by Seksek Chiropractic Professional Corporation in a treatment plan submitted March 1, 2023 and denied March 13, 2023?

10. Is the applicant entitled to $3,259.25 for physiotherapy services, proposed by Seksek Chiropractic Professional Corporation in a treatment plan submitted January 9, 2023 and denied January 18, 2023?

11. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Scarborough Physio and Rehab Inc. in a treatment plan submitted January 4, 2023 and denied January 18, 2023?

12. Is the applicant entitled to $1,995.33 for a psychological assessment, proposed by Seksek Chiropractic Professional Corporation in a treatment plan submitted March 20, 2023 and denied April 1, 2023?

13. Is the applicant entitled to $2,290.25 for a physiotherapy services, proposed by Seksek Chiropractic Professional Corporation in a treatment plan dated April 19, 2023 and denied April 19, 2023?

14. Is the applicant entitled to $2,200.00 for a social work assessment, proposed by Critical Trauma Therapy in a treatment plan dated April 9, 2023 and denied July 20, 2023?

15. Is the applicant entitled to $2,200.00 for the completion of an OCF-19, proposed by Alliance Diagnostics and Treatments Inc. in a treatment plan dated July 11, 2023 and denied July 26, 2023?

16. Is the applicant entitled to $7,687.72 for social work services, proposed by Critical Trauma Therapy in a treatment plan dated April 9, 2023 and denied July 20, 2023?

17. Is the applicant entitled to $2,200.00 for a social work assessment, proposed by Alliance Diagnostics and Treatments Inc. in a treatment plan dated July 26, 2023 and denied August 25, 2023?

18. Is the applicant entitled to $6,283.76 for occupational therapy services, proposed by Innovative Occupational Therapy Services in a treatment plan dated May 11, 2023 and denied June 15, 2023?

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

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

RESULT

4For the reasons that follow, I find that:

1. The applicant is not entitled to NEB.

2. The applicant is not entitled to the disputed treatment plans.

3. The applicant is not entitled to interest.

4. The respondent is not liable to pay an award.

ANALYSIS

Background

5On July 23, 2021, the applicant was travelling on the sidewalk, using her electric wheelchair, when she was struck on the left side by a truck. The truck struck the applicant’s left leg, and then caught her right ankle, twisting her right foot sideways.

6Immediately following the accident, the applicant was transported to the University Hospital by ambulance. She was diagnosed with a right foot soft tissue injury, and diagnostic imaging of her right ankle, her right foot, and her left knee was unremarkable.

7On August 4, 2021, the applicant consulted her family physician, Dr. Krishanthy Shu, and complained of neck pain, left knee pain, and right foot swelling following the accident. She was emotional and feeling confused and shaky due to the accident, which was affecting her mental health and causing her to wake up in the night or not to sleep. She reported feeling anxious, weepy, and crying since the accident. Dr. Shu advised the applicant that she sustained soft tissue injuries, she recommended physiotherapy, and she prescribed anti-depressants.

8Based on a medical file review in support of an Application for Catastrophic Determination (OCF-19) dated June 8, 2023 completed by Dr. Tajedin Getahun, orthopaedic surgeon, and Dr. Nabeel Syed, chiropractor, the applicant was diagnosed with the following accident-related impairments: neck pain, shoulder pain, upper back and/or thoracic cage pain, lower back pain, headache, chronic pain syndrome, malaise and fatigue, sleep difficulties, anxiety, and depression.

9In terms of treatment, the applicant participated in physiotherapy, occupational therapy, social work intervention, and aqua therapy. The respondent states that it paid $31,836.00 in medical and rehabilitation benefits.

10The applicant has a significant pre-accident medical history. She suffered a hemorrhagic stroke in 2008 causing her to experience right side paralysis below her elbow and knee, and hemiplegic right sided weakness, and to become wheelchair bound. She was diagnosed with bipolar disorder, seasonal affective disorder, depression, post-traumatic stress disorder, chronic obstructive pulmonary disease, hypertension, hypothyroidism, and asthma.

11Further, the applicant has a significant post-accident medical history, unrelated to the accident. Indeed, on December 27, 2021, the applicant fractured her left hand when she fell out of her wheelchair. In or around July 2022, the applicant experienced significant grief following the sudden, unexpected death of four family members. On April 28, 2023, the applicant was involved in another accident and complained of lower back pain and hip pain following this second accident.

12As a result of her pre-accident medical condition, the applicant required the services of a personal support worker (“PSW”) twice per day for approximately 45 minutes to an hour each visit. Following the accident, no changes were made to the frequency and the amount of time spent by the PSW in providing services to the applicant.

Non-Earner Benefit

13Section 12(1) of the Schedule 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 from a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

14Section 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 Mutual Insurance Company, 2009 ONCA 391, which generally focuses on a comparison of the applicant’s pre-accident and post-accident activities.

15At the time of the accident, the applicant was 44 years old. She was unemployed and had been in receipt of Ontario Disability Support Program benefits since 1994 due to her diagnosis of bipolar disorder. Although the applicant required the services of a PSW twice per day to assist her with dressing, showering, preparing meals, and cleaning, she was able to engage in various activities such as cooking, housekeeping tasks, groceries, walking, socializing, and swimming.

16The applicant submits that since the accident, she has been completely unable to carry on a normal life. She is no longer able to walk like she used to. She does not socialize like she used to and isolates herself. She is not able to complete many cleaning tasks, and she is more limited in her ability to complete her personal care tasks. She experienced a significant weight gain which also limits her ability to engage in her pre-accident activities.

17She relies on the clinical notes and records (“CNRs”) of various treating practitioners including Hands on Health, Rehab First Inc., Innovative Occupational Therapy Services, Alliance Diagnostics, King Edward Health Centre, and London Health Science Centre Hospital Records.

18In response, the respondent submits that the applicant has failed to demonstrate that she suffers from a complete inability to carry on a normal life. The respondent states that the applicant’s accident-related injuries are soft tissue in nature and that she does not suffer from a psychological impairment as a result of the accident. Further, the applicant has functional limitations as a result of her stroke and her weight that should be taken into account.

19The respondent relies on various insurer examination reports including a psychology paper review report dated July 8, 2022 completed by Dr. Peter Corbin, psychologist, a physiatry independent medical evaluation dated July 13, 2022 completed by Dr. Mohammed Khan, physiatrist, and an occupational therapy in-home assessment dated July 28, 2022 completed by Dr. Daniel Horban, occupational therapist.

The applicant is not entitled to NEB

20I find that the applicant is not entitled to an NEB in the amount of $185.00 per week for the period of August 19, 2021 to July 23, 2023 as she has not demonstrated on a balance of probabilities that she suffers from a complete inability to carry on a normal life.

21The evidence fails to demonstrate that the applicant suffers from a complete inability to carry on a normal life as a result of the accident. The evidence of the applicant’s assessors does not enable me to conduct a meaningful analysis of the applicant’s pre-accident and post-accident activities, as required by Heath. None of the applicant’s assessors expressed an opinion regarding whether the applicant meets the NEB test.

22Further, while there is no dispute that the applicant submitted two Disability Certificates (OCF-3) in support of her claim for NEB and that the parties included these OCF-3s in the Joint Document Brief of the Applicant and Respondent dated May 17, 2024, neither party included these OCF-3s in the evidentiary record. As a result, I cannot rely on the OCF-3s.

23Moreover, although the applicant argues that there is evidence of a significant change between her pre-accident and post-accident activities, I find that there is insufficient evidence to support a finding that there has been a meaningful change between the applicant’s pre-accident activities and post-accident activities as a result of the accident.

24With respect to walking, which the applicant identified as one of her most important activities, the applicant testified that prior to the accident, she was able to get out of her wheelchair and walk with a cane and a brace with the help of the PSW, and that she would walk down the hallway and do two to three laps. She testified that following the accident, due to pain and a significant weight gain, she has been unable to walk like she did before the accident.

25With respect to socializing, the applicant testified that before the accident, she would try to be social and go to Tim Hortons with her primary friend group. She also went to Karaoke with friends. Since the accident, she finds it more difficult to socialize with her friends, and she has become more isolated. When she does go out, it requires more effort on her part, and she has to force herself to do it.

26With respect to cooking, the applicant testified that prior to the accident, both she and the PSW did the meal preparation, and she would cook the food. Since the accident, the applicant continues to cook and to do meal preparation, but both of these tasks are shared with the PSW.

27With respect to housekeeping tasks, the applicant testified that prior to the accident, she was able to vacuum, sweep, tidy up, and stand to do dishes. The PSW helped with some of the housekeeping tasks, but the applicant claims that she did most of her housekeeping. Since the accident, the applicant still does the dishes, but she is limited in her ability to do the balance of her housekeeping tasks due to her significant weight gain. The PSW now takes care of sweeping, mopping, and cleaning the counters.

28With respect to groceries, the applicant testified that prior to the accident, she went grocery shopping 2-3 times per week with small loads, and she would load the groceries on her chair. Since the accident, she goes grocery shopping 3-4 times per week with smaller loads. She still loads her groceries on her chair, but she has more difficulty doing this task as she is not as flexible, and her weight gain makes it more difficult for her to move.

29With respect to swimming, the applicant testified that prior to the accident, she occasionally went swimming. Following the accident, she continued to go swimming as part of her therapy. There is no evidence to support that the applicant is unable to go swimming as a result of her accident-related injuries.

30With respect to personal care tasks, the applicant testified that prior to the accident, the PSW helped her with personal care tasks like getting dressed, taking a shower, and washing her hair. Since the accident, the PSW continues to provide these personal care services, but the applicant reports having more difficulty bending over to put her socks on due to her weight gain. Also, while the applicant advised that she had more difficulty with transfers in the bathroom, she also testified that this was because she moved following the accident, and that she no longer has support bars installed in the bathroom, and the toilet is too high.

31As indicated above, the applicant attributes much of her functional limitations to her significant weight gain. She relies on the CNRs of Dr. Shu and the London Health Science Centre Hospital which indicate that between September 11, 2019 and April 28, 2023, the applicant gained approximately 100 pounds. However, while the applicant alleges that this weight gain occurred after the accident, there is no objective evidence to establish her weight at the time of the accident. As such, there is insufficient evidence to demonstrate that the applicant’s weight gain is due to the accident, and I find that there is insufficient evidence to support a finding that her post-accident functional limitations are as a result of her accident-related injuries.

32Moreover, the applicant was assessed by Dr. Khan, Dr. Corbin, and Mr. Horban. Both Dr. Khan and Dr. Corbin opined that the applicant did not suffer from a complete inability to carry on a normal life as a result of her accident-related injuries.

33From a physical perspective, Dr. Khan concluded that the applicant’s accident-related injuries were all soft tissue in nature, and he noted that the applicant’s post-accident diagnostic imaging was unremarkable.

34From a psychological perspective, Dr. Corbin noted that the applicant was experiencing a grief reaction related to the recent loss of several family members, unrelated to the accident, and concluded that the applicant did not suffer from a psychological impairment as a result of the accident.

35From a functional perspective, Mr. Horban assessed the applicant’s functional limitations and concluded that the applicant did not demonstrate functional limitations at the time of the assessment which continuously prevented her from partaking in substantially all her pre-accident, normal life activities.

36Accordingly, I find that the applicant has not demonstrated that she suffers from a complete inability to carry on a normal life as a result of the accident. Therefore, she is not entitled to an NEB.

37To 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 the treatment plan, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable and necessary.

The applicant is not entitled to physiotherapy services

38I find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans for physiotherapy services are reasonable and necessary.

39The treatment plan dated September 27, 2022 in the amount of $3,292.28 proposes 12 physiotherapy sessions, including weekly home-based sessions, consultation with the applicant’s family physician and treatment providers, research (if necessary), planning and assessing the applicant’s progress, provider’s travel time, documentation and progress report at the end of the bloc of treatment, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase range of motion, to increase strength, and to develop an exercise program that can be implemented by the PSW. The functional goal is to return to activities of daily living.

40The treatment plan dated October 13, 2022 in the amount of $3,930.15 proposes 10 rehabilitation therapy exercise sessions, including meeting with the client, preparation and planning, collaboration and supervision of activities by an occupational therapist, provider’s travel time to and from client sessions, provider’s mileage to and from client sessions, three month YMCA membership, paratransit pass for transportation to and from YMCA, residual funding for accessible taxi (in case paratransit is unavailable), and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase range of motion, to increase strength, to further implement a pool therapy program to address physical injuries and symptoms, to establish and maintain a regular exercise program, to assist the applicant with managing the physical barriers that interfere with her safe and independent functioning. The functional goals of the treatment plan are to return to activities of normal living, and to assist with returning to function within her home and community.

41The treatment plan dated January 9, 2023 in the amount of $3,259.25 proposes 22 physiotherapy sessions, a physiotherapy assessment, education promoting health and preventing diseases, TENS unit, TENS unit accessories, topical analgesic gel, hot/cold gel pack, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase range of motion, and to increase strength. The functional goals are to return to activities of normal living and to return to pre-accident work activities.

42The treatment plan dated March 1, 2023 in the amount of $2,944.75 proposes 20 physiotherapy sessions, a physiotherapy assessment, education promoting health and preventing diseases, TENS unit, TENS unit accessories, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase range of motion, and to increase strength. The functional goal is to return to activities of normal living.

43The treatment plan dated April 19, 2023 in the amount of $2,290.25 proposes 18 physiotherapy sessions, a physiotherapy assessment, education promoting health and preventing diseases, tropical analgesic gel, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase range of motion, and to increase strength. The functional goals are to return to activities of normal living, and to return to pre-accident work activities.

44There is insufficient evidence to support a finding that the five above-described treatment plans are reasonable and necessary. Although the applicant argues that her stroke prolongs her recovery, and that pain may persist even after structural healing, the applicant has not directed me to any objective evidence to support that the treatment plans are reasonable and necessary because of the applicant’s accident-related injuries. Further, while the applicant testified that the pool therapy improved her mood and her strength, she has not directed me to any medical documents to substantiate an accident-related need for continued pool therapy, beyond what has already been provided.

45Moreover, the applicant was assessed by Dr. Khan on several occasions, and he consistently maintained that the applicant’s accident-related injuries are soft tissue in nature. Dr. Khan noted that from a physical perspective, the applicant has undergone a course of facility-based therapy which has included stretching and strengthening exercises, balance exercises, and soft tissue work. He found that there was no significant objective accident-related impairments or objective musculoskeletal pathology that would necessitate further facility-based therapy. He also concluded that further facility-based treatment beyond what has already been provided was not expected to provide any subjective or objective improvement. He indicated that sprain/strain soft tissue injuries heal naturally overtime, and he recommended that the applicant engage in an active home exercise program on a self-directed basis.

46As such, I find that the applicant has not demonstrated entitlement to the cost of physiotherapy services.

The applicant is not entitled to psychological assessments and services, social work assessments and services, and assistive devices

47I find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans for psychological assessments and services, social work assessments and services, and assistive devices are reasonable and necessary.

48The treatment plan dated March 3, 2022 in the amount of $5,289.63 proposes 10 social work counselling sessions, follow up with the applicant between sessions, planning, research, system navigation, consultation, documentation, provider’s travel time to and from sessions, collaboration and supervision of an occupational therapist, and completion of the treatment plan. The goals of the treatment plan are to further assess the applicant’s emotional concerns, and to identify, implement and evaluate strategies to address emotional concerns. The functional goal is to return to activities of normal living.

49The treatment plan dated March 3, 2022 in the amount of $872.50 proposes an emotional support animal carrier case allowance (for a cat), an emotional support animal vest, leash, and tags allowance (for a cat), cost of shipping and delivery, an emotional support animal certification fee (for a cat), a consultation with a vendor to monitor progress and payments, and completion of the treatment plan. The goal of the treatment plan is to address the emotional symptoms related to the accident, including depressed moods and anxiety, and pedestrian anxiety. The functional goal is to return to activities of daily living.

50The treatment plan dated August 12, 2022 in the amount of $6,819.33 proposes 10 counselling sessions with a registered social worker, preparation and planning, documentation, collaboration and supervision by an occupational therapist, provider travel time to and from the applicant’s home, provider’s mileage to and from client sessions, applicant’s transportation to treatment, mileage for the applicant’s transportation to treatment, therapy and community supplies, mobile phone replacement, mobile phone protection plan for 12 months, protective phone case, and completion of the treatment plan. The goals of the treatment plan are to enhance engagement in community activities, to encourage activities and community involvement, and to provide emotional and behavioural support when participating in activities. The functional goals are to return to activities of normal living, and to improve independence and functioning in activities of daily living.

51The treatment plan dated January 4, 2023 in the amount of $2,200.00 proposes a psychological assessment and completion of the treatment plan. The goals of the treatment plan are to reduce pain, and to return to pre-accident levels of psychological functioning. The functional goal is to return to activities of normal living.

52The treatment plan dated March 20, 2023 in the amount of $1,995.33 proposes a clinical diagnostic interview, psychological testing, communication with he treatment team, review of external file material, report processing, feedback interview with the applicant, and completion of the treatment plan. The goal of the treatment plan is to address psychological issues. The functional goal is to return to activities of normal living.

53The treatment plan dated April 9, 2023 in the amount of $2,200.00 proposes a social work assessment, completion of a report, and completion of the treatment plan. The goal of the treatment plan is to conduct a comprehensive social work assessment to evaluate the applicant’s psycho-emotional and social strengths and weaknesses for treatment and rehabilitation planning. The functional goal is to return to activities of normal living.

54The treatment plan dated April 9, 2023 in the amount of $7,687.72 proposes 12 social work counseling sessions, provider’s travel time to treatment, provider’s mileage to and from the applicant’s home, provision of education to the applicant, communication and correspondence between sessions as needed to address concerns and crises, review of received medical documentation, connecting the applicant with community-based resources and advocacy, preparation of a progress report, reserve for funding of equipment, devices, and workbooks, and completion of the treatment plan. The goals of the treatment plan are to manage and treat psycho-emotional and psycho-social impairments, and to establish coping strategies to support activity re-engagement. The functional goal is to return to activities of normal living.

55The treatment plan dated July 26, 2024 in the amount of $2,200.00 proposes a social work assessment and completion of the treatment plan. The goal of the treatment plan is to properly identify and address the hardships and challenges brought about by the applicant’s involvement in the accident. The functional goal is to return to the applicant’s pre-accident status.

56There is insufficient evidence to support a finding that the eight above-described treatment plans are reasonable and necessary. While the applicant states that she was diagnosed with PTSD on the day of the accident, according to the University Hospital record, her accident-related diagnosis on the day of the accident was “right foot soft tissue injury”. Further, while there is no indication in the emergency record that she immediately sustained a diagnosable psychological condition, PTSD was identified in the applicant’s pre-existing medical history.

57Additionally, I find the applicant’s evidence of an accident-related psychological impairment not to be persuasive. Dr. Allan Shapiro, psychologist, indicated in his psychological pre-assessment report dated March 20, 2023 that a brief screen revealed a number of potential areas of concerns including: high pain levels and significant emotional reactivity to pain, both indices predictive of a significant risk of chronicity and disability, and significant anxiety and depressive symptoms. Dr. Shapiro found that the applicant had a preliminary diagnosis of an adjustment disorder with mixed anxiety and depressed mood as a result of the accident.

58In contrast, the applicant was assessed by Dr. Corbin on several occasions, and he consistently maintained that the applicant was not suffering from an accident-related psychological diagnosable condition. Further, although the applicant has a pre-existing diagnosis of bipolar disorder, this psychological condition was not exacerbated by the accident. Further, Dr. Corbin noted that while the applicant was struggling from a grief reaction related to the recent loss of a number of family members, she did not complain of any accident-related psychological issues. Dr. Corbin concluded that the applicant appeared to have made a full recovery of any accident-related issues she might have been experiencing.

59I prefer Dr. Corbin’s opinion as there is no evidence to support Dr. Shapiro’s preliminary findings, aside from the report itself. Further, there are no contemporaneous records documenting any ongoing accident-related psychological complaints or impairments.

60As such, I find that the applicant has not demonstrated entitlement to the cost of psychological assessments and services, social work assessments and services, and assistive devices.

The applicant is not entitled to an occupational therapy assessment and services

61I find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans for an occupational therapy assessment and services are reasonable and necessary.

62The treatment plan dated September 27, 2022 in the amount of $2,200.00 proposes a comprehensive occupational therapy assessment, and completion of the treatment plan. The goal of the treatment plan is to conduct a comprehensive occupational therapy functional assessment. The functional goal of the treatment plan is to return to activities of normal living.

63The treatment plan dated October 3, 2022 in the amount of $6,033.50 proposes 10 occupational therapy sessions, provider’s travel time, provider’s mileage to treatment, planning and preparation, preparation of a progress report, and completion of the treatment plan. The goals are to maximize functional restoration, and to address barriers impeding normal daily function. The functional goal is to return to activities of normal living.

64The treatment plan dated May 11, 2023 in the amount of $6,283.76 proposes 12 occupational therapy sessions, provider’s travel time, provider’s mileage, communication (including session planning and documentation), file research, file review, preparation of progress reports, and completion of the treatment plan. The goals of the treatment plan are to maximize functional restoration, and to address barriers impeding normal daily function. The functional goal is to return to activities of normal living.

65There is insufficient evidence to support a finding that the three above-described treatment plans are reasonable and necessary. While there is no dispute that the applicant experiences functional limitations, there is insufficient evidence to establish that the treatment plans are reasonable and necessary because of the applicant’s accident-related injuries. While the applicant testified that the tasks carried out by the PSW prior to the accident differed from those carried out after the accident, there does not appear to have been a significant difference, and the PSW continues to assist the applicant twice per day for 45 minutes to an hour.

66Moreover, the applicant was assessed by Mr. Horban on several occasions, and he consistently maintained that the applicant did not report experiencing accident-related functional limitations nor did she demonstrate any functional limitations attributed to the accident.

67As such, I find that the applicant has not demonstrated entitlement to the cost of an occupational therapy assessment and services.

The applicant is not entitled to the cost of completing an OCF-19

68I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated July 11, 2023 in the amount of $2,200.00 for the cost of completing of an Application for Determination of Catastrophic Impairment (OCF-19) is reasonable and necessary.

69There is insufficient evidence to support a finding that a treatment plan dated July 11, 2023 in the amount of $2,200.00 was submitted for the cost of completing an OCF-19. Although it was identified as an issue in dispute, neither party included a copy of the disputed treatment plan in the evidentiary record. Further, the applicant’s submissions and evidence do not identify the goals of the treatment plan, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable and necessary.

70Alternatively, there is insufficient evidence to establish that the disputed treatment plan is not reasonable and necessary. As indicated in a letter dated July 26, 2023, the OCF-19 dated July 11, 2023 along with the Medical File Review in support of the OCF-19 submission dated June 8, 2023 prepared by Dr. Getahun and Dr. Syed do not include any objective medical evidence to substantiate that the applicant may have sustained a catastrophic impairment under Criterion 6, 7, or 8.

71As such, I find that the applicant has not demonstrated entitlement to the cost of completing an OCF-19.

Interest

72Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, no interest is payable.

Award

73Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As I have concluded that the applicant is not entitled to NEB or the disputed treatment plans, it follows that no benefits were unreasonably withheld. Accordingly, the respondent is not liable to pay an award.

ORDER

74For the reasons outlined above, I find that:

1. The applicant is not entitled to NEB.

2. The applicant is not entitled to the disputed treatment plans.

3. The applicant is not entitled to interest.

4. The respondent is not liable to pay an award.

75The application is dismissed.