Bennett v. Allstate Insurance Company of Canada, 2024 CanLII 118801

Licence Appeal Tribunal

Citation: Bennett v. Allstate Insurance Company of Canada, 2024 ONLAT 22-011420/AABS Licence Appeal Tribunal File Number: 22-011420/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:

Crystol T Bennett Applicant

and

Allstate Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Sherilyn Pickering, Counsel For the Respondent: Athina Ionita, Counsel

HEARD: By way of written submissions

OVERVIEW

1Crystol Bennett, the applicant, was involved in an automobile accident on August 3, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2In its written hearing submissions the respondent raised a preliminary issue that the applicant failed to attend a properly scheduled s. 44 insurer’s examination for one of the treatment plans in dispute. It seeks an order that the applicant be barred from proceeding with her application, pursuant to s. 55(1)2 of the Schedule.

SUBSTANTIVE ISSUES

3The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from August 3, 2021 ongoing?

ii. Is the applicant entitled to $1,800.00 for physiotherapy services, proposed by Armstrong Physiotherapy in a Treatment Confirmation Form (“OCF-23”) dated January 19, 2022?

iii. Is the applicant entitled to $1,466.50 for physiotherapy services, proposed by Yannick Audet in a treatment plan (“OCF-18”) dated January 13, 2022?

iv. Is the applicant entitled to $2,045.38 for occupational therapy services, proposed by Lauren Schwalm in an OCF-18 dated December 9, 2021?

v. Is the applicant entitled to $4,036.35 for physiotherapy services, proposed by Barrie Core Wellness in a treatment plan dated May 17, 2023?

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

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

RESULT

4For the preliminary issue, I find the applicant is not statute-barred from proceeding with her application due to non-attendance at a scheduled insurer’s examination.

5For the substantive issues, I find that:

i. The applicant is entitled to a non-earner benefit for the period of August 31, 2021 to January 6, 2023;

ii. With respect to the OCF-23 dated January 19, 2022, the applicant is entitled to the remaining balance under the Minor Injury Guideline;

iii. The applicant is not entitled to the OCF-18 dated January 13, 2022 for $1,466.50 of physiotherapy services;

iv. The applicant is entitled to partial payment in the amount of $1,945.63 for the OCF-18 dated December 9, 2021 for an occupational therapy assessment;

v. The applicant is entitled to partial payment in the amount of $2,814.40 for the OCF-18 dated May 17, 2023;

vi. Interest is payable in accordance with s. 51 the Schedule on all outstanding payments for the non-earner benefit, the OCF-23, the OCF-18 dated December 9, 2021 and the OCF-18 dated May 17, 2023; and

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

PRELIMINARY ISSUE - NON-ATTENDANCE AT S. 44 EXAMINATION

6I find that the respondent has not established that the applicant failed to attend a properly scheduled insurer’s examination (“IE”).

7Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

8Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE. The Tribunal may, under s. 55(2) of the Schedule permit an insured person to apply to the Tribunal despite a failure to comply with s. 44, subject to terms and conditions.

9The respondent submits that the applicant failed to attend a s. 44 physiatry assessment scheduled for September 22, 2023. As such, it argues that the applicant should be prohibited from applying to the Tribunal pursuant to s. 55(1)2 of the Schedule.

10The applicant argues that the respondent did not properly raise the issue of s. 44 non-attendance, but rather, that it should have been added as an issue in dispute by way of a motion. Further, the applicant submits that she missed the IE as she had mixed up dates, and that the respondent had rescheduled the IE for March 25, 2024. At the time of submissions, the applicant states that she fully intends to attend the proposed IE. The respondent did not provide an update to the Tribunal as to whether the applicant failed to attend the rescheduled IE.

11I find that the respondent has not met its onus to prove that the applicant has failed to attend a properly scheduled IE. The applicant has submitted as evidence a Notice of Examination dated February 9, 2024 where the respondent rescheduled the proposed physiatry IE to March 25, 2024. Given that the missed IE had been rescheduled at the time the parties provided their submissions and without an update as to whether the applicant failed to attend the rescheduled IE, the respondent has not established that the applicant failed to comply with s. 44(1) of the Schedule. As such, the applicant is not barred from proceeding with the treatment plan in dispute.

ANALYSIS

Non-earner benefits (“NEB”)

12I find that the applicant is entitled to payment of an NEB for the period of August 31, 2021 to January 6, 2023. The applicant is not entitled to NEBs for the remaining period in dispute.

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 a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

14The applicant submits that as a result of the accident she has sustained serious physical impairments, including headaches, dizziness, vision impairments, neck, shoulder, right wrist, back, hip and left leg pain. In addition, post-accident she now suffers from psychological impairments, including general anxiety, driving anxiety, low mood, and sleep difficulties. Due to these accident-related impairments, the applicant submits that she has functional restrictions relating to sitting, standing, walking, stair climbing, lifting, carrying, reaching, bending and squatting.

15The applicant relies on her affidavit, where she describes her life before the accident and her post-accident limitations to her daily activities. Such restrictions include: that she now only attempts to do some minimal housekeeping, and some weeks can do no chores at all, that she is unable to cook her cultural or family meals, that she is restricted in providing care to her daughter and that she is unable to take part in her pre-accident recreational activities like going to the gym, coaching soccer, rollerblading and reading.

16Most importantly, the applicant submits that post-accident she has been unable to continue her education and potential employment. At the time of the accident the applicant was studying nursing, and had a contract lined up to begin working later that month. After the accident, the applicant submits that she had to take two months off school. While she tried to continue with her program, her marks steadily declined despite numerous accommodations, and she had to give up a full-time position as a Registered Practical Nurse that had been arranged just before the accident.

17The respondent disputes that the applicant meets the test for entitlement to NEBs. It submits that despite any difficulties the applicant may have had with continuing her studies post-accident, she was still able to remain with her program and participate in a demanding practicum. It cites Tribunal decisions in support of its claim that a brief interruption of education does not meet the high threshold for an NEB. The respondent further argues that the applicant was able to travel post-accident, was independent in her self-care and returned to cooking, cleaning, laundry and grocery shopping. It relies on the s. 44 IE report of Dr. Ballard dated July 28, 2022, who found that the applicant did not meet the NEB test.

18I find that the applicant has established entitlement to NEBs from August 31, 2021 to January 6, 2023. The applicant has not established entitlement for the remaining period in dispute. Although the applicant claimed NEB entitlement from the date of the accident, August 3, 2021, NEBs are not available for the first four weeks post-accident. As such, the period of entitlement would begin on August 31, 2021.

19I find that the evidence establishes that the applicant was unable to continue with substantially all of her pre-accident activities, due to pain. I agree with the applicant’s reliance on Heath v. Economical that “a claimant who merely goes through the motions cannot be said to be engaging in an activity”. Further, where pain is the primary factor preventing an applicant from engaging in pre-accident activities, Heath requires the applicant to show that the pain practically prevents them from engaging in those activities. The applicant has led affidavit evidence that whereas pre-accident she was responsible for all house care tasks, she now breaks a task down across several days or some weeks she can do no chores at all. She is unable to cook her cultural or family meals, is restricted in providing care to her daughter and is unable to take part in her pre-accident recreational activities like going to the gym, coaching soccer, rollerblading and reading. This was also reported to her s. 25 assessors.

20The applicant has also led evidence that she was severely restricted in participating in her nursing program for a period of time post-accident. Although the respondent points to the fact that she was still enrolled in the program and able to complete courses, I agree with the applicant that from August 31, 2021 to January 6, 2023, she was practically prevented from engaging in her nursing program. The applicant missed the first two months of classes post-accident. When she did return, she switched to online classes due to her pain and driving anxiety. She then tried to re-locate to Timmins without her family to address her driving anxiety concerns.

21The applicant submits transcripts from Northern College showing the steep decline in her GPA. In the last semester before the accident, the applicant took four courses with a GPA of 3.31. After the accident, the applicant took only two courses with a GPA of 2.43, and the next term, her GPA dropped further to 1.92, despite a reduced courseload, extensive accommodations and tutoring three times a week. The applicant then took the next Fall 2022 semester off completely due to accident-related pain. I find the substantial reduction in her ability to engage in her primary educational activity to be indicative of a complete inability to carry on what was previously part of her ‘normal life’.

22The respondent points to the clinical notes and records (“CNRs”) of the applicant’s family physician, Dr. Chen, as evidence that the applicant did not suffer from a complete inability to carry on a normal life. It cites the fact that in the years post-accident Dr. Chen provided multiple sick letters for unrelated medical conditions, as evidence that the applicant was still able to attend full-time schooling. In particular, in a September 7, 2021 note Dr. Chen said that the applicant was medically cleared to attend school and able to resume full clinical care, with the only needed accommodation being frequent sitting during school attendance. However, even if the applicant was “cleared” to attend school, the transcript evidence establishes that she was unable to effectively participate in her program. I also note that Dr. Chen provided two separate Disability Certificates dated August 5, 2021 and February 5, 2022 where he confirmed that the applicant suffered from a complete inability to carry on a normal life.

23However, I find that the applicant has not established that she continued to meet the test for NEB entitlement after January 6, 2023. At this point the applicant had enrolled at Seneca College for Winter and Summer 2023 terms. She was carrying a full course load with a term GPA of 3.5. The applicant submits that she was only able to maintain this GPA since at Seneca she took courses she had already taken at Northern, and that she had extensive accommodations. However, from my review of the Northern and Seneca transcripts, all of the courses do not appear to be identical. Further, even if the applicant was only able to maintain a full courseload and her previous GPA with accommodations, a reduced ability to complete her schooling in my view is not sufficient to meet the stringent test of a complete inability. As such, I find that the applicant is entitled to payment of NEBs only from August 31, 2021 to January 6, 2023.

24Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

25The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

OCF-23 dated January 19, 2022 in the amount of $1,800.00

26The applicant has established entitlement to the OCF-23 dated January 19, 2022 for the remaining balance under the Minor Injury Guideline (“MIG”).

27The applicant’s treatment provider Armstrong Physiotherapy had submitted an OCF-23 for treatment under the MIG on November 5, 2021. The respondent denied the OCF-23 on the basis that an OCF-23 had been previously submitted and approved. However, the applicant argues that the first OCF-23 dated October 5, 2021 was not fully completed, since she had switched treatment providers. The applicant submits that she was only removed from the MIG in August 2022 and after that only OCF-18s were approved.

28I find that the applicant is entitled to the balance of remaining services under the MIG. The applicant cites the MIG and s. 40(5) of the Schedule both of which hold that an insured person can submit an amended OCF-23 if they change health practitioners during the course of treatment under the MIG. The applicant has led evidence that she moved to Timmins for school during the course of treatment, while she was still being held within the MIG. I agree with the applicant that there is no prohibition on a second OCF-23 if there is a change in providers, and find that the applicant is entitled to the balance of remaining services under the MIG.

OCF-18 dated January 13, 2022 in the amount of $1,466.50 for physiotherapy treatment

29The applicant has not established entitlement to the OCF-18 dated January 13, 2022.

30The respondent denied the OCF-18 by way of an Explanation of Benefits (“EOB”) dated February 14, 2022. The respondent stated that it was unable to respond to the OCF-18 as submitted because the costs of treatment were submitted on a per visit basis, with no information provided on the duration of treatment. Without information on the length of treatment, the respondent said that it was unable to determine if the proposed expenses were in accordance with the Professional Services Guideline (“PSG”). It requested that a completed OCF-18 be provided outlining the duration of treatment, and that it would consider whether the costs would be reasonable.

31The applicant submits that the respondent should have requested this information under s. 33 or called the clinic directly rather than denying the OCF-18. However, the applicant has not led any evidence that the requested information was provided to the respondent, nor has the applicant provided specific submissions on the duration of treatment. The respondent’s request for a properly completed OCF-18 was reasonable, to determine whether the cost of treatment was reasonable in light of the PSG rates. Without any evidence or specific submissions on the length of the treatment sessions, the applicant has not met her onus to prove that the proposed treatment sessions were reasonable and necessary.

OCF-18 dated December 9, 2021 in the amount of $2,045.38 for an occupational therapy assessment

32I find that the applicant is partially entitled to the OCF-18 for an occupational therapy assessment, in the amount of $1,945.63. The applicant is not entitled to the remaining balance of $99.75 for provider travel time.

33The respondent denied the proposed assessment on the basis of its s. 44 physiatry IE report. Dr. Ballard found that the applicant was independent with her self-care and had returned to cooking, cleaning, laundry and grocery shopping and that an occupational therapy assessment was not reasonable and necessary.

34I agree with the applicant that an occupational therapy assessment can be obtained not just for the purposes of assessing attendant care needs, but also to determine the devices or services a claimant might need in their recovery. At the time the OCF-18 was submitted, the applicant was reporting accident-related chronic pain and functional restrictions. Her family physician had provided two OCF-3s detailing her pain and psychological symptoms and noting that the applicant’s injuries persist with no or very minimal recovery. I further note that assessments are, by their nature, speculative and that the purpose of an assessment is to determine if a condition exists. I find that the applicant has established that there is a reasonable possibility of functional impairment to warrant the occupational therapy assessment.

35However, I agree with the respondent that the applicant has not established that the proposed travel time in Item 2 of the OCF-18 is reasonable and necessary. I agree with the respondent’s cited decision, Barrie v Intact Insurance Company, 2022 CanLII 98060 (ON LAT), that provider travel time is not an authorized transportation request and is therefore not payable according to s. 15(2) of the Schedule.

OCF-18 dated May 17, 2023 in the amount of $4,036.35 for physical treatment

36I find that the applicant is partially entitled to the OCF-18 dated May 17, 2023, in the amount of $2,814.40. The applicant is not entitled to the remaining balance of the OCF-18.

37The OCF-18 proposed a chiropractic assessment, 27 sessions of chiropractic treatment, 10 sessions of massage treatment, a naturopathy assessment, 6 sessions of naturopathic treatment, a “miscellaneous product” and $200 for the completion of the OCF-18. The respondent denied the OCF-18 on the basis that it was now 23 months post-accident, that it had already approved $10,811.06 of physical treatment, that it had not received any updated reports to support the treatment, and that the applicant was being referred to an IE.

38I find that the applicant has established that the chiropractic assessment, 27 sessions of chiropractic treatment, and 10 sessions of massage treatment are reasonable and necessary. The applicant has submitted a chronic pain assessment report dated October 1, 2023 and an occupational therapy assessment report dated November 22, 2023, establishing that she continued to suffer from ongoing pain in her neck, right shoulder, right wrist, lower back and legs. The s. 25 assessors recommended chiropractic and massage treatment. The applicant has further led evidence that while she was without treatment from September 2022 to February 2023, this led to an increase in symptoms.

39The respondent did not provide specific submissions or evidence refuting the s. 25 assessors’ recommendations of ongoing treatment, but rather, raised the issue of the applicant’s non-attendance at the scheduled physiatry IE for this treatment plan. As previously noted, I found that the applicant was permitted to dispute this treatment plan as the respondent had not met its onus to prove that the applicant has failed to attend the re-scheduled IE. Given the evidence of ongoing pain, the recommendations of the applicant’s assessors, and the deterioration of symptoms after a gap in treatment, I find that a course of chiropractic and massage treatment is reasonable and necessary to see if the applicant sustains a benefit from resumed treatment.

40With respect to the $200 for the completion of the OCF-18, $200 is the maximum fee set out in the Superintendent’s Guideline No. 03/14 for reviewing and approving an OCF-18. Given the multiple treatment modalities being proposed in the OCF-18, I do not see an issue with the applicant’s chiropractor charging the full amount for form completion. I further agree with the applicant that the Tribunal decision cited by the respondent where the $200 form completion fee was found not to be reasonable and necessary, is distinguishable. In 18-001508 v Security National Insurance Company, 2019 CanLII 63353 (ON LAT) the Tribunal found that the treatment plan was not reasonable and necessary and that the insured had not provided any particulars as to the treatment plan. This is not the case in the matter at hand.

41However, I agree with the respondent that the applicant has not established that the naturopathy assessment, 6 sessions of naturopathic treatment and “miscellaneous product” are reasonable and necessary. Although the applicant clarified in her submissions that the “miscellaneous product” was for supplements and a pillow, no particulars were provided as to the specific supplements, the type of pillow or the cost breakdown of the various items. The applicant further has not directed me to any evidence that a treating practitioner or assessor had recommended these items or the naturopathic treatment. Without specific submissions or evidence in support of these line items, I find that the applicant has not established the reasonableness and necessity of these services and items.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the outstanding payments for the NEB, the OCF-23, the OCF-18 dated December 9, 2021 and the OCF-18 dated May 17, 2023.

Award

43Under s. 10 of Regulation 664, 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. The applicant seeks an award on the basis that the respondent failed to provide due consideration to medical records, failed to make proper requests for further information and ignored the totality of the evidence.

44I do not find that the applicant has established a basis for an award. The threshold for an award is high. Although I have found that the applicant is entitled to NEBs and certain treatment plans, I note that an award is not necessarily warranted simply because the respondent came to an incorrect determination. Moreover, I do not find the respondent’s reliance on its s. 44 assessment to be excessively impudent, stubborn, unyielding or immoderate. As such, the applicant is not entitled to an award.

ORDER

45I find that:

i. the applicant is not statute-barred from proceeding with her application due to non-attendance at a scheduled IE;

ii. The applicant is entitled to payment of an NEB for the period of August 31, 2021 to January 6, 2023;

iii. With respect to the OCF-23 dated January 19, 2022, the applicant is entitled to the remaining balance under the MIG;

iv. The applicant is not entitled to the OCF-18 dated January 13, 2022 for $1,466.50 of physiotherapy services;

v. The applicant is entitled to partial payment in the amount of $1,945.63 for the OCF-18 dated December 9, 2021 for an occupational therapy assessment;

vi. The applicant is entitled to partial payment in the amount of $2,814.40 for the OCF-18 dated May 17, 2023;

vii. Interest is payable in accordance with the Schedule on all outstanding payments for the NEB, the OCF-23, the OCF-18 dated December 9, 2021 and the OCF-18 dated May 17, 2023; and

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