Lowe v. Aviva Insurance Company of Canada, 2024 CanLII 115418

Citation: Lowe v. Aviva Insurance Company of Canada, 2024 ONLAT 22-005233/AABS

Licence Appeal Tribunal File Number: 22-005233/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:

Marcia Lowe

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Maria Papadopoulos, Paralegal

For the Respondent: Alexander Dos Reis, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Marcia Lowe, (the “applicant”) was involved in an automobile accident on March 29, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from December 2, 2021, to date and ongoing?
2. Is the applicant entitled to $2,416.63 for chiropractic services from Brampton Civic Care Centre Inc., proposed in a treatment plan (“OCF-18”) dated April 21, 2022?
3. Is the applicant entitled to $2,783.85 for chiropractic services from Brampton Civic Care Centre Inc., proposed in an OCF-18 dated May 13, 2022?
4. Is the applicant entitled to $2,783.85 for chiropractic services from Brampton Civic Care Centre Inc., proposed in an OCF-18 dated September 12, 2022?
5. Is the applicant entitled to $2,783.85 for chiropractic services from Brampton Civic Care Centre Inc., proposed in an OCF-18 dated November 7, 2022?
6. Is the applicant entitled to interest on any overdue payment of benefits?

3The Case Conference Report and Order (“CCRO”), released on April 3, 2023, indicates that there is a dispute over IRB for the time period of December 7, 2019, to date and ongoing. However, the applicant in her submissions has submitted that she is only claiming post-104 IRB from December 2, 2021, because she was already provided with long term disability (“LTD”) benefits prior to this. As such, the dispute before me pertains to post-104 IRB from December 2, 2021.

RESULT

4I find that:

i. The applicant is entitled to post-104 IRB from December 2, 2021, to December 31, 2023, with the weekly quantum as follows:

(a) December 2, 2021 to December 31, 2021: $124.91 per week;

(b) January 1, 2022 to December 31, 2022: $139.22 per week; and

(c) January 1, 2023 to December 31, 2023: $122.26 per week.

ii. The applicant is entitled to ongoing post-104 IRB in the amount of $400.00 per week, subject to the deduction of her Canada Pension Plan Disability Benefits (“CPP-D benefits”).

iii. The applicant is entitled to all the OCF-18s in dispute proposing chiropractic services.

iv. The applicant is entitled to interest on the overdue payments, pursuant to section 51 of the Schedule.

PROCEDURAL ISSUES

The new evidence will be admitted into the record

5I admit into the record the clinical notes and records (“CNRs”) of Dr. Manson Mak, the applicant’s family physician, for the period of October 4, 2022, to March 14, 2023, the CNRs of Dr. Sanja Paleksic, physiatrist, from September 29, 2022, to January 17, 2023, Decoded OHIP Summaries from April 2, 2020, to April 4, 2023, LTD file until December 18, 2019, a letter from Service Canada, dated December 13, 2023, (“new evidence”), and the respondent’s denial letter for the post-104 IRB, dated December 8, 2023.

6Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”), which applies to this case, provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal. Under Rule 3.1 of the Licence Appeal Tribunal Rules, 2023, (the “LAT Rules”) the Tribunal will interpret the Rules liberally to facilitate a fair, open, and accessible process and to allow effective participation by all parties.

7I find that the CCRO was clear that the deadline for productions not previously disclosed but which the parties intended to rely upon for the hearing was due 120 calendar days after the case conference (i.e., July 29, 2023).

8After receiving the applicant’s initial submissions for this hearing, the respondent filed a notice of motion on January 4, 2024, requesting four types of relief. The first one was that the following evidence be excluded from this hearing:

i. CNRs of Dr. Mak from November 13, 2021 to March 14, 2023.

ii. CNRs of Dr. Paleksic, from October 14, 2021 to January 17, 2023.

iii. Decoded OHIP Summaries from April 2, 2020 to April 4, 2023.

iv. The applicant’s LTD file until December 18, 2019.

9The respondent argues that this evidence was not received until the applicant’s initial submissions which was on December 13, 2023, and therefore the applicant is non-compliant with the CCRO. It further argues that it has suffered significant prejudiced as it has been denied an opportunity to arrange s. 44 Insurer’s Examinations (“IEs”), and that this is a violation of procedural fairness. It also argues that the applicant’s action constitutes a hearing by ambush.

10The respondent also requested the following further relief from the Tribunal:

i. An adjournment be granted for 120 calendar days to allow the respondent to arrange s. 44 assessments, and an order that the respondent can provide further submissions.

ii. If an adjournment was granted, a further order that the applicant attend all reasonable and properly scheduled IEs within 60 days of the order being issued.

iii. An order, that its updated denial letter, dated December 8, 2023, with respect to the disputed post-104 IRB is admissible.

11In a January 8, 2024 notice to the parties, the Tribunal advised that the adjournment request would not be considered because the respondent did not file it in accordance with Rule 16.1. The notice also advised that the remainder of the motion would be heard at the scheduled written hearing.

12On January 12, 2024, the respondent sent correspondence to the Tribunal advising that the applicant had provided certain CNRs from Dr. Mak and Dr. Paleksic on October 7, 2022. The respondent advised that it maintained its position that the late-served CNRs of Dr. Mak and Dr. Paleksic should still be excluded from this hearing, and that its denial letter, dated December 8, 2023, should still be admitted into the record. It did not advise whether it was still seeking the proposed relief with respect to the Decoded OHIP Summaries and the LTD file. The respondent also requested that a letter from Service Canada, dated December 13, 2023, (which was provided in the applicant’s reply submissions), should be excluded because it was not produced until January 5, 2024.

13In reply, the applicant argues that the CNRs only contain a total of nine visits, and she has already provided five years of records to the respondent. Moreover, she argues that the respondent has already responded to these CNRs in its submissions, and therefore had an opportunity to respond to the evidence. The applicant argues that the Service Canada letter is beneficial for the respondent because it decreases the amount of any IRB she might be entitled to, as the benefit is deductible. Finally, she argues that there is no procedural fairness issue because she provided a significant amount of evidence to the respondent during the course of these proceedings, yet it did not conduct any updated IEs.

14I find that the new evidence and the denial letter, dated December 8, 2023, is relevant to the issues in dispute and I have decided to admit it into the record. Pursuant to s. 15(1)(b) of the Statutory Powers Procedure Act, RSO 1990, c S. 22 (“SPPA”), documents relevant to the issues in dispute are admissible as evidence.

15I find that the respondent is not prejudiced by the new evidence. I agree with the applicant that she has provided a voluminous amount of evidence to the respondent in 2022 and 2023, and the respondent has not provided an explanation on why IEs could not have been arranged based on that evidence. Likewise, the CNRs from both doctors contain a total of nine visits (which contain records that are similar to the previous records), and the respondent has not provided clarification on how this evidence would require IEs while the earlier similar evidence didn’t. I note that the respondent chose not to do IEs for the voluminous medical evidence that was provided previously.

16Moreover, the respondent was aware that the applicant was receiving LTD benefits, in an email, dated March 10, 2022. Similarly, the respondent has not addressed how the Decoded OHIP Summary prevented it from completing IEs. Likewise, the respondent has not established that it is prejudiced by the letter from Service Canada, dated December 13, 2023, because CPP-D is deductible from IRB, which it argued in its submissions.

17I also admit the denial letter dated December 8, 2023, into the record, as the applicant has not made any objections to this letter and I find there is no prejudice.

18Finally, I note that the respondent has not filed a proper form as required by Rule 16 of the LAT Rules and therefore it is not before me at this hearing.

19In summary, I admit the new evidence and the denial letter dated December 8, 2023.

Analysis

Post-104 IRB

20To receive payment for post-104 IRBs under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.

21The applicant is seeking entitlement to post-104 IRB from December 2, 2021 to date and ongoing. The applicant was receiving pre-104 IRBs until December 7, 2019. On January 3, 2020, the applicant was approved LTD benefits in the amount of $2,393.00 per month, which she received until December 1, 2021, when the benefit was terminated, and she conceded in her submissions that is claiming post-104 IRB only.

22The applicant argues that she has been employed as a data entry administrator/team assistant since 2002, and that following the accident, she has been unable to return, despite already trying two unsuccessful attempts. She argues that she continues to be unable to engage in any gainful occupation or perform any work for which she is reasonably fitted by education, training, or experience. To support this, the applicant primarily relies on the CNRs of Dr. Mak, Dr. Paleksic and Dr. Albert Gyimah, psychiatrist.

23In response, the respondent argues that the applicant has not met her onus for post-104 IRB because she has not produced a number of outstanding financial documents, including an updated employment file, union file, CPP-D file, and an LTD file. The respondent further argues that the applicant has not provided a vocational expert assessment report. Finally, the respondent argues that the CNRs of Dr. Mak, Dr. Paleksic, and the s. 25 reports should be given little to no weight by the Tribunal. In the end, it argues that the applicant does not meet the test for post-104 IRB.

The applicant is best suited for sedentary work, in an administration or assistant role

24As outlined above, the applicant was employed as a data entry administrator/team assistant since 2002. The applicant produced her employment file which outlines that her job duties included: processing new referrals, ordering services, supplies, and equipment, managing telephone queues, and addressing inquiries from patients, families, and service providers. In order to perform these duties, the applicant was required to have manual dexterity to complete keyboarding and working with laptops/computers, concentration, and the ability to meet deadlines under pressure.

25The applicant referred me to the s. 25 reports completed by Dr. Joseph Wong, physiatrist, and Dr. K. Efala, orthopedic surgeon, dated July 7, 2021 and March 28, 2023. In these reports, it was noted that the applicant completed her education at the Toronto School of Business and had a business management diploma.

26Based on this evidence, I find that the applicant’s education, experience, and training suggest that she is best suited for employment involving sedentary work, in a administration or assistant role.

The applicant has demonstrated that she suffers a complete inability to engage in a sedentary position in a administration or assistant role

27On balance, I agree with the applicant and find that she has met her onus of demonstrating that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training, or experience as a result of the accident.

28On review of the medical documentation, I find that there are consistent and contemporaneous indications that both the applicant’s physical and psychological injuries, have prevented her from completely engaging in employment for which she was suited up until at least 2019.

29In reaching this conclusion, I place significant weight on the CNRs from Dr. Mak and Dr. Paleksic. Dr. Mak is the applicant’s family physician and Dr. Paleksic is the applicant’s treating practitioner, and therefore would have the most intimate knowledge about the applicant’s functionality.

30In Dr. Mak’s CNRs, there is consistent self-reporting of psychological and physical impairments and her inability to work as a result. There are also several significant diagnoses made by Dr. Mak, a referral to two chronic pain specialists, a physiatrist, and an orthopaedic surgeon. Dr. Mak has also noted that Dr. Paleksic’s opinion is that the applicant is unable to go back to work or is not ready to return to work. Dr. Mak’s records also note the applicant’s previous two unsuccessful attempts to return to work in June 2019 and October/November 2019, and the consequences, which included an aggravation of her left shoulder/arm injury and development of right shoulder pain.

31The numerous CNRs from Dr. Paleksic’s office also support a finding that the applicant has a complete inability to engage in either a sedentary or a physical role. These opinions were also largely provided in a period that is contemporaneous to the post-104 IRB period. I find that these records help to establish that the applicant meets the post-104 IRB test for the following three reasons.

32First, Dr. Paleksic has consistently opined that the applicant has ongoing left upper extremity injury in the form of a high-grade rotator cuff tear, whiplash, chronic myofascial neck pain, cervicogenic vertigo, subacromial impingement, anxiety, psychological decompensation, a chronic pain condition and a significant psychological disorder with anxiety and depression. This is also consistent with the other bulk of the evidence, like Dr. Mak’s records, CNR of Dr. Gyimah, and the s. 25 reports completed by Drs. Igor Wilderman, family doctor, Dr. Wong, Dr. Efala, and Ms. Ilda Caeiro-Azzam, social worker.

33Second, Dr. Paleksic’s opinion is supported by the objective evidence, such as the positive impingement results on the Hawkins-Kennedy and Neer testing.

34Third, Dr. Paleksic has maintained his opinion that despite the applicant being eager to return to work, she is unable to work at any type of employment or in any capacity (both sedentary or physical), because of her psychological and physical issues. Dr. Paleksic further opined that if the applicant returned to work too soon, she would decompensate, and would not be able to continue. I find this opinion is supported by the applicant’s previous two failed attempts to return to work in July 2019 and October/November 2019, which as noted in Dr. Mak’s records resulted in an aggravation of her injuries to her left shoulder/arm and development of right shoulder pain.

35Finally, Dr. Paleksic wrote a report to support the applicant’s CPP-D benefits application. On August 19, 2022, Dr. Paleksic opined that the prognosis for the applicant’s impairments (as noted above) remained the same, were continuous and that due to her physical and psychological impairments, it was not appropriate for her return to her employment, and that the prognosis was very guarded. Significantly, Dr. Paleksic noted that he recommended that the applicant stop working as of October 2, 2019.

36In sum, I find that the CNRs of Dr. Mak and Dr. Paleksic and the medical report written by Dr. Paleksic all support that the applicant suffers a complete inability to engage in any employment for which she is suited.

37In reaching my conclusion, I acknowledge the respondent’s position that Dr. Paleksic’s evidence should be given little to no weight, as Dr. Paleksic did not comment on whether the applicant met the post-104 IRB test or even demonstrated any understanding of what this test entails. The post-104 IRB test is a legal test, not a medical test. Although, Dr. Paleksic did not refer to the specific terminology and tests governing entitlement to post-104 IRB in the Schedule, this does not diminish the value of this evidence.

38I also acknowledge the respondent’s position that Dr. Mak has not opined that the applicant meets the post-104 IRB test himself, and therefore these records should be given limited weight, I disagree. The post-104 IRB test is a legal test, and not a medical test. As noted above, I find the applicant’s consistent self-reporting, the significant diagnoses made by Dr. Mak, the numerous referrals to different specialists and Dr. Paleksic’s opinion to be sufficient to establish that the applicant meets the post-104 IRB test.

39Specifically, Dr. Mak’s records show that for the past four years (April 19, 2019 to March 14, 2023), the applicant has consistently reported to Dr. Mak that she has pain in her neck, left shoulder, left arm, left hand, left wrist, left elbow, anxiety, depression, sleeping difficulties, and difficulty concentrating. As a result, Dr. Mak has diagnosed the applicant with an adjustment reaction with anxious mood (on June 12, 2019), chronic pain (July 17, 2019), high grade partial tear in left supraspinatus (November 13, 2019), chronic shoulder pain/chronic elbow pain (October 9, 2020), chronic anxiety (December 8, 2020) and throughout the records in 2021 to 2023, Dr. Mak has continued to note diagnoses of depression, chronic anxiety, and chronic pain.

40For her chronic pain and tear in the left supraspinatus, the applicant has been referred to a plastic surgeon (Dr. Langsang), who recommended surgery, a physiatrist, Dr. Paleksicwho has continuously opined that the applicant is unable to work in any capacity, and two separate chronic pain clinics. In the CNRs most contemporaneous to the post-104 IRB period (January 13, 2021, June 23, 2021, July 8, 2021, and July 29, 2021) Dr. Mak has consistently noted that either the applicant reported that she is not ready to return work or Dr. Paleksic advised her not to do so because of both her physical and psychological impairments.

41I also acknowledge the respondent’s position, that the CNRs of July 8, 2021, July 29, 2021, and November 12, 2021, demonstrate that the applicant is unable to work due to issues unrelated to the accident, I disagree. While the applicant reported that she was going through psychological issues unrelated to the accident, and that she felt not able to return to work in large part based on Dr. Paleksic’s opinion, it is unclear from these CNRs whether the applicant felt she was unable to return to work because of the accident, her psychological issues unrelated to the accident or both.

42In any event, I find that reading Dr. Mak’s CNRs collectively demonstrates that the applicant has consistently reported psychological symptoms and been diagnosed with psychological impairments for the past four years as a result of the accident. In a similar vein, the applicant has consistently reported that she was unable to work both from her psychological and physical impairments, which has resulted in financial stress, which is further exacerbated once her LTD benefits were denied. Overall, Dr. Mak has consistently noted that the applicant is unable to return to work, diagnosed her with psychological impairments, has prescribed Cymbalta, referred her to a psychiatrist, and noted that the applicant was receiving psychological treatment from a s. 25 assessor.

43Further, Dr. Mak’s findings are corroborated by the CNRs of Dr. Gyimah. On April 25, 2022, Dr. Gyimah noted that the applicant was experiencing a number of psychosocial stressors, from the accident and from issues not related to the accident. Significantly, Dr. Gyimah noted that the applicant was experiencing psychosocial stressors from her involvement in this accident, which led to her being off work, eventually losing her job, struggling financially, and being cut off from LTD benefits. Dr. Gyimah opined that the applicant’s psychosocial stressors, combined from this accident and unrelated to this accident resulted in a diagnosis of an adjustment disorder with depressed and anxious mood, and post-traumatic stress disorder.

44The respondent also argues that Dr. Mak’s CNRs between November 13, 2021 and March 14, 2023, are almost devoid of any pain complaints, and contain vague statements, as no specific body part was referred to, when the applicant’s pain was discussed. I am not persuaded by this position because the applicant for the past four years has consistently reported where her pain is, has been diagnosed with chronic pain by Dr. Mak, and been referred to two different pain clinics, which demonstrates that she has chronic pain. In my view, the fact that the applicant did not report where her pain was during every visit does not negate that she has significant chronic pain from this accident.

45During the time period of November 13, 2021 to March 14, 2023, Dr. Mak CNRs note that the applicant continues to have chronic pain and issues with her left supraspinatus, which she is seeing Dr. Paleksic for, has applied for CPP-D benefits, has financial stress, and was referred to a new chronic pain clinic by Dr. Mak. In my view, this evidence demonstrates that the applicant continues to suffer from her accident-related impairments.

46The respondent also argues that in the CNR of March 9, 2022, the applicant reported that she had a grievance with her union and got terminated from work. The respondent’s argument on this point is not clear, but I infer that it is arguing that the applicant returned to work beyond July and October/November 2019. I do not agree. Upon review of this CNR, I note that Dr. Mak wrote: “got terminated from work. LTD denied her appeal… has a grievance with union.” I find this does not support that the applicant returned to work. Rather, it indicates that the applicant was terminated from work, following a denial of her LTD benefits.

47My finding is further supported by the fact that the applicant’s LTD benefits were denied on November 26, 2021, a few months before this visit. In this detailed denial letter, there is no indication that the applicant returned to work (other than 2019). This is corroborated by other evidence, including the January 24 and February 2, 2022, CNRs of Dr. Mak which indicate that the worker had recently lost her job and was in the process of an insurance appeal. Overall, I find the evidence does not support a finding that the applicant has returned to work, other than in 2019.

48The respondent also asks that I draw an adverse inference that the applicant has continued to work (beyond her two unsuccessful attempts in 2019), because she has not provided the following documentation:

i. Tax returns for 2021 and 2022;

ii. Notice of assessments from one year pre-accident to the date of the case conference;

iii. Short Term Disability (“STD”) and LTD files from December 19, 2019 to the date of the case conference;

iv. CPP-D file from August 20, 2022 to the date of the case conference;

v. Employment file from January 30, 2022 to the date of the case conference; and

vi. Union file from one year pre-accident to the date of the case conference.

49I decline to draw an adverse inference. I find that there is a significant amount of evidence to support that the applicant has not returned to work since the accident (beyond the two previous attempts in 2019). First, the applicant has consistently reported to Dr. Mak that she is unable to work, and all the financial stress this has resulted in her life. Second, Dr. Paleksic’s records clearly document that the applicant was eager to return to work but he discouraged her from doing so. Third, the applicant was approved for LTD benefits until December 2021, and the denial letter for her LTD benefits makes no indication that the applicant has returned to work. Fourth, the applicant has been approved for CPP-D benefits, which in my view further strengths her claim that she is not working.

50The respondent further argues that Dr. Paleksic, is not qualified to comment on or diagnose psychological impairments. I agree that Dr. Paleksic is a physiatrist, and therefore is not qualified to diagnose psychological impairments. However, as noted above, Dr. Paleksic is qualified to speak to the applicant’s physical impairments, which he has opined combined with the applicant’s psychological impairments, render her unable to work at any type of employment. Further, Dr. Gyimah has opined that the applicant has psychological impairments from this accident (albeit, she has psychosocial stressors unrelated to the accident). To summarize, while Dr. Paleksic is not qualified to diagnose the applicant, Dr. Gyimah is, and when these records are read together, they demonstrate that the applicant is unable to work because of her physical and psychological impairments.

51The respondent further argues that Dr. Paleksic is not a vocational expert, and therefore he is not in a position to comment on the applicant’s ability to return to any employment for which she is reasonably suited. The respondent further argues that the applicant has not provided a single vocational expert assessment report to determine what types of jobs she is reasonably suited for by way of her education, training, and experience. I am not persuaded by these arguments, because the Schedule does not state that a medico-legal report is strictly required to meet the post-104 IRB test or that a vocational assessor has to provide an opinion.

52Rather, the Schedule states that the applicant must demonstrate that she is suffering a complete inability to engage in any employment, for which she is reasonably suited by education, training, or experience. As noted above, based on the evidence provided, she is best suited for a sedentary role, which I find the evidence as indicated above supports that she suffers a complete inability in. My finding is supported by the consistent pain and psychological complaints to Drs. Mak, Gyimah, and Paleksic; Dr. Paleksic’s consistent opinion that the applicant is unable to work in any capacity (sedentary or otherwise); and the applicant’s approval for CPP-D benefits.

53Finally, the respondent has not produced evidence that rebuts or refutes Dr. Paleksic’s opinion that the applicant is unable to work at any type of employment or in any capacity (both sedentary and physical). Instead, the respondent has tendered s. 44 assessments completed by Dr. Sabrina Ming-Wai-Tu, general practitioner, dated November 25, 2019, and April 28, 2020, which are not contemporaneous to the post-104 IRB period, unlike the applicant’s evidence.

54Dr. Tu opined that the applicant did not suffer from a substantial inability to perform the tasks of her pre-accident employment, despite having a left partial thickness tear in her infraspinatus and supraspinatus tendon of her left shoulder, because her job was sedentary in nature and she used her computer/phone at arm level or below arm level. Yet, the applicant was approved for LTD benefits (until December 2021), and the test for her LTD benefits before she was denied was eerily similar to the pre-104 IRB test. Thus, I place little weight on these reports completed by Dr. Tu.

55As an aside, the respondent also argues that the Divisional Court decision of Traders General Insurance Company v. Rumball, 2022 ONSC 7215 (Rumball”) is binding on me and that it was held by the court that the post-104 IRB test does not require that the applicant be able to engage in employment in a competitive real-world setting. It is unclear to me how the authority of Rumball is fatal to the applicant’s post-104 IRB claim. In Rumball, the applicant had worked in a retail setting as a volunteer, was trained as a wedding planner, and completed wedding planning projects in the post-104 IRB period (see paragraph 22). Here, the applicant has not worked since 2019, and has produced evidence that she is unable to work in any capacity, whether sedentary or physical, which satisfies the post-104 IRB test.

56In sum, I find that the applicant has proven that she suffers a complete inability to engage in any sedentary work. As the respondent has also raised an issue over quantum of the IRB, I now turn to this question.

Quantum of post-104 IRB

57I find that the applicant’s weekly post-104 IRB quantum is as follows:

i. December 2, 2021 to December 31, 2021: $124.91 per week:

(a) In the respondent’s denial letter, dated November 26, 2019, it confirmed that $400.00 per week was the maximum weekly quantum available under the policy, based on the applicant’s pre-accident employment income. Therefore, in order to calculate the weekly quantum of IRB for this time period, I will need to deduct the retroactive CPP-D payments the applicant received for this time period from the maximum quantum of $400.00.

(b) $400.00 minus $275.09 (weekly retroactive payment for CPP-D based on the monthly amount of $1,100.36 being divided by four) equals $124.91 per week.

ii. January 1, 2022 to December 31, 2022: $139.22 per week:

(a) $400.00 per week minus $260.78 (weekly retroactive payment for CPP-D based on the yearly amount of $13,560.84 being divided by 52 weeks), equals $139.22 per week.

iii. January 1, 2023 to December 31, 2023: $122.26 per week:

(a) $400.00 per week minus $277.74 (weekly retroactive payment for CPP-D based on the yearly amount of $14,442.24 being divided by 52 weeks) equals $122.26 per week.

58The respondent argues that the applicant’s quantum for post-104 IRB is $0 throughout her period of entitlement because she has not provided key documents (which are noted above at paragraph 47) to determine what is deductible under ss. 4(1) and 7(3)(a) of the Schedule. It argues that without these key documents, it is impossible to calculate the quantum of IRB, because there is insufficient information on the deductions that are available to the respondent (i.e., the STD payments, the LTD payments and CPP-D). Finally, the respondent argues that the Tribunal has consistently drawn adverse inferences and found it could not calculate the quantum of IRBs where the applicant failed to provide documents in accordance with the CCRO or s. 33 requests.

59To support this, it cites the authorities of: Jeffrey v. Travelers Insurance Company of Canada, 2023 CanLII 1442 (ON LAT) (“Jeffrey”), F.E. v. Intact Insurance Company, 2022 CanLII 30392 (ON LAT) (“F.E.”), Landa v. Dominion of Canada Gen Ins. Co, 2023 CanLII 4440 (ON LAT), Nura v. Allstate Insurance Company of Canada, 2023 CanLII 55988 (ON LAT) and 17-006504 v. Certas Home and Auto Insurance Company, 2018 CanLII 97845 (ON LAT).

60In reply, the applicant proffered a correspondence from Service Canada, dated December 12, 2023, which outlines the retroactive payments she will receive for 2021 to 2023. She argues that she received this correspondence after the submission of her initial hearing submissions. Further, the applicant argues that she has not returned to work since the accident and concedes that any retroactive and ongoing CPP-D benefits are deductible.

61I am not persuaded by the respondent’s position because as noted above, the applicant has referred me to the respondent’s correspondence of November 26, 2019, where it calculated the applicant’s pre-104 IRB based on the pre-accident records. The respondent has not referred me to evidence that demonstrates that it either advised the applicant that further documentation was required to calculate the applicant’s quantum (prior to the CCRO) or that it made a request under s. 33. I am alive to the fact that these documents were requested at the CCRO, however, I note that the CCRO does not state that these records are required to calculate the applicant’s quantum of IRB. In my view, the respondent should have used s. 33 if it required this documentation to calculate the applicant’s IRB quantum. If the respondent had taken this avenue, it would have given them recourse under s. 33(6) if the applicant was non-compliant, but it chose not to do so.

62I also agree with the applicant that she produced the letter from Service Canada, dated December 12, 2023, which provides me with the necessary information to calculate the amount of CPP-D benefits that are deductible from 2021 to 2023.

63Finally, I am not bound by the authorities cited by the respondent, and I find the factual matrix in those decisions are distinguishable from the matter before me.

64In Jeffrey, the Tribunal found evidence that the applicant had returned to work following the accident and had not produced relevant documents confirming her post-accident income. Here, the applicant has not returned to work since early 2019, and in large part has provided pre and post-accident financial documentation. In F.E., the applicant was non-compliant with several orders from the Tribunal for productions, did not produce any documentation to calculate her IRB quantum, and thus an adverse inference was drawn. In the matter before me, while the applicant was non-compliant with the CCRO, she has provided documentation to calculate her pre-accident income (which the respondent was able to do so in its correspondence of November 26, 2019), unlike the applicant in F.E.

65The remaining authorities cited by the respondent pertain to circumstances where the respondent requested financial documentation under s. 33, which was not provided by the applicant. As a result, the Tribunal consistently held that under s. 33(6), the respondent was not liable to pay IRB for the non-compliant time period.

66In short, there is no dispute over the applicant’s pre-accident income, and the maximum weekly IRB quantum available under the policy, the STD/LTD files are not deductible because the applicant was receiving neither during the period of December 2, 2021 to date and ongoing (also as noted above, she has reported that her LTD was denied), and I have a letter from Service Canada, with the relevant retroactive payments that need to be deducted. In my view, I have sufficient information before me to calculate the applicant’s weekly quantum of IRB minus the appropriate deductions from 2021 to 2023, which I have done so at paragraph 56. With respect to her quantum for 2024 and ongoing, the respondent is entitled to deduct the amount of CPP-D benefits she receives from $400.00 on an ongoing basis.

67Based on the totality of the evidence before me, I find that the applicant is entitled to the quantum for post-104 IRB as outlined at paragraph 56, and the applicant is entitled to interest in accordance with s. 51 of the Schedule.

OCF-18 in the amount of $2,416.63 for chiropractic services, dated April 21, 2022.

OCF-18 in the amount of $2,783.85 for chiropractic services, dated May 13, 2022.

OCF-18 in the amount of $2,783.85 for chiropractic services, dated September 12, 2022.

OCF-18 in the amount of $2,783.85 for chiropractic services, dated November 7, 2022.

68I find that the applicant has established on a balance of probabilities that the proposed OCF-18s are reasonable and necessary.

69To receive payment for a treatment and assessment plan pursuant to sections 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.

70The disputed OCF-18s pertain to chiropractic, physiotherapy, massage, and acupuncture services.

71The applicant argues that she has consistently reported that her treatment at Brampton Civic Care Centre was helpful, and pain relief is a legitimate goal of therapy. She further argues that the OCF-18s aim to reduce pain, increase strength, and increase her range of motion.

72Meanwhile, the respondent argues that the applicant has not met her onus, and that a treatment plan, by itself is not sufficient to prove that the OCF-18s are reasonable and necessary. It argues that the applicant has not produced contemporaneous expert opinion that she would benefit from the proposed services. To support its position, it relies upon the s. 44 assessment of Dr. John Heitzner, physiatrist, dated February 25, 2022.

73I find that the applicant has met her evidentiary burden for the following three reasons.

74First, the applicant has been diagnosed with significant physical impairments, including a chronic pain diagnosis, as noted above, and has consistently reported to Drs. Paleksic, Yee, Heitzner, and Erin Langis, psychologist, that physiotherapy, massage, acupuncture, and chiropractic treatment is beneficial and helpful as it provides pain relief. It is well-settled that pain relief is a legitimate goal of treatment.

75Second, I place significant weight on the relatively contemporaneous CNRs of Dr. Paleksic. Against the respondent’s position, there are CNRs relatively contemporaneous to the OCF-18s which support that physiotherapy treatment and massage treatment have been recommended for the applicant’s neck and trigger pain. For instance, on May 26, 2021 (a year before the submission of these OCF-18s), Dr. Paleksic noted that physiotherapy treatment had been beneficial and strongly recommended that the applicant continue. Likewise, Dr. Paleksic recommended massage therapy at least once every week for the applicant’s neck pain and trigger point release. Throughout August 2021 to January 2023, Dr. Paleksic noted that the applicant had been receiving benefit from the ongoing physiotherapy treatment, and that she needed to continue to treat her chronic condition.

76Finally, I am not persuaded by the s. 44 report of Dr. Heitzner. First, Dr. Heitzner’s conclusion that there is no obvious impingement to the applicant’s left shoulder pain is inconsistent with the overwhelming evidence from Drs. Mak, Paleksic, and the various s. 25 assessors which have all objectively noted positive impingement test results for the applicant’s left shoulder.

77Second, Dr. Heitzner opined that the applicant presented with: cervical strain, left shoulder strain, and an underlying partial thickness tear of the distal left supraspinatus, which he concluded were soft tissue injuries. Yet, Dr. Heitzner provided no explanation on why these soft tissue injuries had not resolved to date, despite three years passing since the accident.

78Third, Dr. Heitzner concluded that the applicant has reached maximum medical improvement, as the proposed treatment would not result in significant change in her current level of function. Critically, Dr. Heitzner provided no basis for this rationale, other than just stating it, and I find that it is not consistent with the bulk of the medical evidence.

79In conclusion, the applicant is entitled to the proposed OCF-18s, and interest.

ORDER

80For the reasons outlined above, I find that:

i. The applicant is entitled to post-104 IRB from December 2, 2021 to December 31, 2023, with the weekly quantum as follows:

(a) December 2, 2021 to December 31, 2021: $124.91 per week;

(b) January 1, 2022 to December 31, 2022: $139.22 per week; and

(c) January 1, 2023 to December 31, 2023: $122.26 per week.

ii. The applicant is entitled to ongoing post-104 IRB in the amount of $400.00 per week, subject to the deduction of her CPP-D benefits.

iii. The applicant is entitled to all the OCF-18s proposing chiropractic services.

iv. The applicant is entitled to interest on the overdue payments, pursuant to section 51 of the Schedule.