Ashley Rogal v. TD General Insurance Company, 2024 CanLII 118814

Citation: Rogal v. TD General Insurance Company, 2024 ONLAT 22-013363/AABS

Licence Appeal Tribunal File Number: 22-013363/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:

Ashley Rogal

Applicant

And

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Ian Drong, Counsel

For the Respondent: Michael Rattray, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ashley Rogal, the applicant, was involved in an automobile accident on February 10, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").

2The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $203.06 for medication, submitted on an Expense Claim Form ("OCF-6"), dated July 12, 2019?

ii. Is the applicant entitled to $1,800.00 for a left knee brace, submitted on an OCF-6, dated October 5, 2022?

iii. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Dr. Suneel Upadhye, in a treatment plan, dated November 23, 2022?

iv. Is the applicant entitled to $2,200.00 for an attendant care assessment, proposed by Joanne Romas, by Occupational Therapist Professional Corporations, in a treatment plan dated February 15, 2023?

v. Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by Innovative Occupational Therapy Services, in a treatment plan dated October 11, 2022?

vi. Is the applicant entitled to $6,033.50 for occupational therapy services, proposed by Innovative Occupational Therapist, in a treatment plan, dated October 11, 2022;

vii. Is the applicant entitled to $2,200.00 for an OT jobsite analysis, proposed by Joanne Romas, occupational therapist, in a treatment plan, dated June 15, 2023?

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

4The Case Conference Report and Order ("CCRO"), dated July 17, 2023, lists issue ii as: "Is the applicant entitled to $1,800.00 for knee braces, proposed by C & DC Orthopedic Services in a treatment plan, dated October 5, 2022." Upon review of the documents submitted by the applicant, I find that the expense was submitted on an OCF-6. Therefore, I have amended issue ii above to reflect that the left knee brace was submitted on an OCF-6, dated October 5, 2022.

5The CCRO also listed the issue: "Is the applicant entitled to an income replacement benefit in the amount of $233.19 per week from November 23, 2022 to date and ongoing". The parties agree that this issue is not before me. The applicant's claim for an IRB is barred based on the preliminary issue hearing decision, dated September 15, 2023. Therefore, I have not included it in the issues in dispute.

RESULT

6I find that,

i. The applicant is entitled to the OCF-6 for medication expenses, dated July 12, 2019;

ii. The applicant is not entitled to the OCF-6 for a left knee brace dated October 5, 2022;

iii. The applicant is entitled to the treatment plans in dispute, namely the treatment plans for a chronic pain assessment, an attendant care assessment, an occupational therapy assessment, occupational therapy services and an OT jobsite analysis; and

iv. The applicant is entitled to interest in accordance with s. 51 of the Schedule.

PROCEDURAL ISSUES

Late submission of medical documents

7I decline to exclude the documents included in the applicant's submissions as requested by the respondent.

8The respondent submits that a number of documents were served on March 6, 2024, well past the production deadline of October 10, 2023, set out in the CCRO, dated July 17, 2023. Specifically, it claims that the documents located at Tabs 5, 6, 7, 8, 10, 13, 14 and 26 of the applicant's submissions were not served on the respondent until the applicant filed and served her written submissions on March 6, 2024. The respondent submits that it is prejudiced by the late production of these documents, and it was not afforded the opportunity to obtain reports in response to the newly received clinical notes and records ("CNRs"). The respondent seeks to exclude these documents, and in the alternative requests that I draw an adverse inference and place substantially less weight on these documents.

9Rule 9.4 of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission, Version 1 (October 2, 2017) as amended, states that if a party fails to comply with any Rule or Order with respect to disclosure, that party may not rely on the document as evidence, without the consent of the Tribunal.

10I decline to exclude Tabs 5, 6, 7, 8, 10, 13, and 26 of the applicant's submissions, as these documents were provided by the production deadline set out in the CCRO of October 10, 2023. I note that applicant's reply written submissions included the following information:

i. Tabs 5, 6, 7 and 8 were copies of the applicant's employment files at various locations where she worked post-accident. These records were served on the respondent on August 18, 2023 when she filed her submissions for the Preliminary Hearing;

ii. Tab 10 is a medical record of Dr. Kavalsky, family doctor, dated July 25, 2016. This record was within the CNRs of Dr. Kavalsky's covering the period of April 29, 2016 to June 27, 2017. These records were served on October 20, 2022;

iii. Tab 13 is a medical record of Dr. Kavalsky, dated July 10, 2017. This record was within the CNRs of Dr. Kavalsky's CNRs dated July 10, 2017. These records were served on October 20, 2022; and

iv. Tab 26 is a collection of three medical notes of Dr. D'Souza, chronic pain specialist, between September 6 and October 4, 2022, that were within the CNRs of the Hamilton Pain Clinic. These records were served on December 6, 2022.

11I also decline to exclude Tab 14 of the applicant's submissions. Tab 14 is an orthopaedic consultation that the applicant underwent with Dr. Jennifer Thompson, on July 25, 2017. I accept the explanation provided in the applicant's reply written submissions, that the late submission of this document was unintentional. The applicant submits that she believed that this report was contained within the Main Street Health records served on the respondent on October 5, 2022. However, after further review, the records were found to be incomplete, and the two-page report of Dr. Thompson was not contained within the Main Street Health records. The applicant submits that the record was included in her submissions to demonstrate the history of the bilateral knee complaints. She submits that as causation of the knee pain has been raised by the respondent, this record is highly relevant, and the applicant would be prejudiced by its exclusion.

12I find that the applicant has provided a reasonable explanation for the late submission of the medical evidence in Tab 14 of her submissions. I find that the applicant will be prejudiced if it is excluded from this hearing because the respondent has raised the issue of causation with respect to the applicant's left knee pain.

13I am not persuaded by the respondent's submission that permitting the 2-page consultation report of Dr. Thompson would be prejudicial, because the respondent cannot obtain a responding report. I find that this two-page report has not impeded the respondent's ability to know the case to be met and to adequately respond to the issues in dispute because the respondent has obtained its own expert opinion reports assessing the applicant's left knee complaints and has provided written submissions on the issue.

14For the above reasons, I deny the relief sought by the respondent. The documents will be admitted into evidence.

ANALYSIS

Applicant's onus to establish a treatment plan is reasonable and necessary

15To 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Issue 1 – Medical expenses submitted July 12, 2019

16I find that the applicant has proven on a balance of probabilities that she is entitled to the OCF-6 for medication expenses.

17The applicant claims entitlement to $203.06 for medication expenses, submitted on an OCF-6, dated July 12, 2019. The applicant has provided the Tribunal with copies of the prescription receipts that she claims entitlement to, but not a copy of the OCF-6.

18The applicant submits that the medications being claimed are for prescriptions consumed by the applicant over a period of April, 2018 through to March, 2019. The medications were prescribed by her general practitioner and her pain specialist. The applicant submits that Dr. Suneel Upadhye, chronic pain specialist, commented in her report dated January 11, 2023, on her medication usage, noting, "She has ongoing medication and interventional care for chronic pain, which seems to be primarily neuropathic/centralized, and clinical features for fibromyalgia. These are being managed currently in a chronic pain clinic, and she reports some relief from ongoing treatments."

19The respondent submits that the medication expenses claimed by the applicant have never been properly submitted by the applicant to the respondent. It submits that it does not have a copy of the OCF-6 in its file, or a denial letter associated with this item. It further submits that while the applicant's submissions include receipts of medication reportedly incurred by the applicant, there is no clarification as to which of these expenses the applicant is submitting that the respondent should pay for.

20I find that while the applicant has not provided me with a copy of the OCF-6 that she submitted on July 12, 2019, she has provided a copy of the prescription receipts. In addition, the applicant has provided me with the denial letter from the respondent dated December 24, 2022, which notes the OCF-6, dated July 12, 2019 for various medications. I find that this letter is evidence that an OCF-6 was submitted by the applicant and was received by the respondent.

21The letter from the respondent dated December 24, 2022, states,

Thank you for submitting your Expense Claim Form (OCF-6). We acknowledge receipt of your expenses however, you are not entitled to payment of the following expenses as they were incurred before the submission of a completed and approved treatment and assessment plan.

• OCF-6 dated July 12, 2019 for various medication: $208.72

22I find that the applicant is entitled to the medication expenses submitted in the OCF-6, dated July 12, 2019. Pursuant to s. 38(2)(c)(i) of the Schedule, there is no requirement for the applicant to submit a treatment plan for prescription medication before the respondent is required to pay the expense. The only requirement for the cost of medication to be paid is that it is reasonable and necessary as a result of the accident impairment and that it be prescribed by a regulated health professional. I find that the applicant was not required to submit a treatment plan for these expenses. The respondent's denial letter is therefore insufficient and does not deal specifically with the medications being claimed.

23Based on the medical evidence before me, I find that the applicant has proven that the prescriptions were prescribed as a result of injuries sustained in the accident by a regulated health practitioner and that she has incurred these expenses.

24For the reasons set out above, I find that the applicant has proven on a balance of probabilities that she is entitled to the medication expenses.

Issue 2 – Left knee brace submitted October 5, 2022

25I find that the applicant has not proven on a balance of probabilities that she is entitled to the OCF-6 for a left knee brace.

26The applicant claims entitlement to $1,800.00 for a left knee brace, submitted on an OCF-6, dated October 5, 2022. The applicant has provided a copy of the prescription receipt for the left knee brace, prepared by Dr. David D'Sousa, chronic pain specialist, dated August 16, 2022. The prescription receipt recommends a custom knee brace for a "left knee meniscal tear". The applicant has also provided a copy of the Invoice from C & DC Orthopedic Services, dated August 18, 2022, for a "Custom Defiance Knee Brace LT Knee with Meniscal Tear" in the amount of $1,800.00 which was paid in full.

27The applicant submits that she has suffered from left knee pain since the accident and that she has suffered a tear to her vastus medialis and her ACL in the accident. She submits that she requires a custom left knee brace to address her injury. She relies on the OCF-3, dated February 19, 2016, which lists bilateral knee pain and also the physiotherapy records from Main Street Health which include numerous references to left knee as well as the right knee pain. She further relies on the report of Dr. Thompson, dated July 25, 2017, which notes that she suffers from chronic bilateral anterior knee pain.

28The respondent submits that the left knee brace is not reasonable and necessary, and that the applicant has not provided evidence in support of a causal connection between the left knee brace and the accident. It submits that the left knee injury was not caused by the accident but is a pre-accident condition associated with bilateral tendonitis.

29The denial letter from the respondent dated December 24, 2022, states,

Thank you for submitting your Expense Claim Form (OCF-6). We acknowledge receipt of your expenses however, you are not entitled to payment of the following expenses as they were incurred before the submission of a completed and approved treatment and assessment plan.

• OCF-6 dated October 5, 2022 for knee brace: $1,800.00

Given your pre-existing medical history of a knee condition and back pain, at this time, we are unable to determine if these expenses incurred are directly related to the injuries sustained from this accident.

30I find that the OCF-6, dated October 5, 2022, is not payable pursuant to s. 38(2) of the Schedule. Pursuant to s. 38(2) of the Schedule, an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment of examination that was incurred before the insured person submits a treatment plan that satisfies the requirements of subsection (3). A list of exceptions are provided under subsection (2)(a) to (d).

31I agree with the respondent that the OCF-6, dated October 5, 2022, was submitted after the applicant purchased the left knee brace on August 18, 2022. The respondent's denial letter dated December 24, 2022, notes that the denial was based on her failure to submit a treatment plan prior to the expense being incurred. An OCF-6 is not a treatment plan. The applicant did not submit a treatment plan in respect to this expense pursuant to s. 38(2) of the Schedule and the applicant has not provided any submissions or evidence that the knee brace falls under one of the exceptions listed in s. 38(2)(a) to (d).

32For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to the OCF-6 for a left knee brace.

Issue 3 and 4 – Chronic pain assessment proposed November 23, 2022 and attendant care assessment proposed February 15, 2023

33I find that the respondent's denials of the treatment plans for a chronic pain assessment and an attendant care assessment did not comply with s. 38(8) of the Schedule, and therefore, the applicant is entitled to these treatment plans on this basis.

34Section 38(8) and s. 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply.

35Section 38(8) of the Schedule provides that an insurer shall respond to a treatment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must provide medical and all other reasons why it has determined that the treatment plan is not reasonable and necessary.

36If an insurer fails to comply with its obligations under s. 38(8), the following consequences under s. 38(11) of the Schedule are triggered:

i. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies; and

ii. The insurer must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on a day the insurer gives notice as described in s. s. 38(8)

37Although the parties did not refer it, I am bound by the Divisional Court decision in Aviva General Insurance Company v. Catic, 2022 ONSC 6000. The Divisional Court stated that s. 38(11)2 compels an insurer who fails to provide the statutory noticed called for in s. 38(8) to pay for all of the items listed in the subject treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding.

38Although not binding on me, I am also persuaded by the decision cited by the applicant in Yang v. Dominion, 2022 CanLII 23412 (ON LAT) ("Yang"). In that case, treatment was denied as the insured was in the MIG. The Tribunal found that once an insured is removed from the MIG, the insurer has an obligation to re-evaluate the treatment plans it denied based on the insured's injuries being minor and subject to the MIG monetary limits. Once the applicant is removed from the MIG, all treatment plans are subject to the test of being reasonable and necessary. If the insurer does not do so pursuant to s.38(8) of the Schedule, the consequences under s. 38(11) are triggered.

Sufficiency of the respondent's denials

39I find that the applicant is entitled to the treatment plan for a chronic pain assessment, dated November 15, 2022 in the amount of $2,200.00 and the treatment plan for an attendant care assessment, dated February 15, 2023 in the amount of $2,200.00.

40The applicant submits that the respondent has not provided a proper denial pursuant to s. 38(8) of the Schedule of the treatment plans dated November 15, 2022 and February 15, 2023. The respondent denied these treatment plans based on the applicant's injuries being within the MIG. Once she was removed from the MIG, the respondent did not reconsider these treatment plans or provide a proper denial.

41The respondent submits that following its initial denial letters on December 23, 2022 and March 23, 2023 respectively, the applicant was advised via correspondence dated April 10, 2023 that the treatment plans were not reasonable and necessary. The respondent states that its letter dated April 10, 2023, stated that from a physical medicine perspective, there were no objective impairments related to the accident that would impart any disability. The respondent submits that it provided clear and unequivocal reasons setting out that from a physical medicine perspective, there was no evidence of any ongoing impairment.

42I find that the respondent provided its initial denial letter on December 23, 2022, with respect to the chronic pain assessment and its initial denial letter on March 23, 2023 with respect to the attendant care assessment. The treatment plans were denied based on the applicant's injuries being within the MIG. However, once the applicant was removed from the MIG on April 10, 2023, the respondent was required to re-evaluate the treatment plans and provide a proper denial of the treatment plans to the applicant.

43Upon review of the respondent's correspondence dated April 10, 2023, I find that there is no mention of either of the treatment plans dated November 23, 2022 or February 15, 2023. The only treatment plans that are referred to in this letter are dated November 10, 2022.

44I therefore find that the letter dated April 10, 2023, does not comply with the requirements under s. 38(8) of the Schedule as it fails to refer to the specific treatment plans dated November 23, 2022 and February 15, 2023. The respondent cannot rely on a blanket statement that the applicant does not suffer any ongoing impairment from a physical medicine perspective to deny all previously submitted treatment plans. The notice must identify the specific treatment plan in dispute and provide adequate medical reasons to deny the disputed treatment plan.

45I further find that the respondent has not pointed me to any additional correspondence dealing specifically with either the treatment plan dated November 23, 2022 or February 15, 2023. As such, a proper denial of these treatment plans has not been made by the respondent.

46The respondent is in breach of s. 38(8) of the Schedule and it has not cured its defective notice to date. With respect to the treatment plan for the chronic pain assessment, the chronic pain assessment has been incurred. I accordingly find that it is payable plus interest by operation of s. 38(11) of the Schedule. With respect to the treatment plan for the attendant care assessment, this assessment has not yet been incurred and is therefore payable with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

47For the reasons set out above, I find that the applicant has proven on a balance of probabilities that she is entitled to the proposed chronic pain assessment and attendant care assessment.

Issue 5 and 6 – Occupational therapy assessment and occupational therapy services proposed October 11, 2022

48I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plans for an occupational therapy assessment and occupational therapy services.

49The applicant claims entitlement to $2,200.00 for an occupational therapy assessment, proposed by Innovative Occupational Therapy Services, in a treatment plan dated October 11, 2022. Under part 9, the plan recommends completion of a comprehensive occupational therapy functional assessment to assist the applicant in returning to activities of normal living. Under additional comments, the plan states that "The assessment will involve a detailed exploration into her functional cognitive abilities, psycho-emotional and physical impairments impeding a restored return to normal daily activities."

50The applicant also claims entitlement to $6,033.50 for occupational therapy services proposed by Innovative Occupational Therapist, in a treatment plan, dated October 11, 2022. The plan recommends 10 sessions of in-home occupational therapy, provider travel time to treatment, provider mileage to treatment, planning, service, and document support. Under part 9, the goals of the treatment are "to maximize functional restoration and address barriers impeding normal daily function."

51The applicant submits that the treatment plan and assessment plans for an occupational therapy assessment and occupational therapy services are reasonable and necessary. She relies on the explanation by Sheila Don, occupational therapist, who prepared the treatment plans:

The assessment will involve a detailed exploration into her functional cognitive abilities, psycho-emotional and physical impairments impeding a restored return to normal daily activities.

52The applicant further submits that the treatment plans are reasonable and necessary based on the recommendations of Dr. Sunneel Upadhye, dated January 11, 2023 and Dr. Jay Toor, orthopeadic surgeon, dated May 15, 2023.

53The applicant submits that Dr. Upadhye, in his report dated January 11, 2023, concluded that the applicant would benefit from a home assessment with occupational therapists and other support services to optimize home maintenance since she is now significantly limited with such after her accident.

54The applicant submits that Dr. Toor, in his report, dated May 15, 2023, concluded that the applicant suffers a musculoskeletal impairment and has difficulty in performing the essential tasks of her housekeeping activities. To further qualify her inabilities, he recommended an in-home assessment by an occupational therapist to clarify her needs as necessary and to educate her and provide her with the necessary pacing and task modification strategies.

55The respondent submits that the treatment plans are not reasonable or necessary because from a physical medicine perspective, the applicant does not suffer an objective impairment that would impart any level of disability. In its denial letter dated April 10, 2023, it relied upon the multi-disciplinary assessment report, dated April 4, 2022, which contained the in-person physiatry assessment conducted by Dr. Todd Christopher Bentley on November 30, 2022 and the virtual psychological assessment conducted by Dr. Monique Costa El-Hage on March 22, 2023. The respondent further relied upon the addendum report of Dr. Bentley, dated July 31, 2023.

56The respondent submits that Dr. Costa El-Hage concluded that the proposed goods and services were neither reasonable nor necessary as the applicant had previously undergone "several physical assessments" and if there is a need to assess the applicant's cognitive functioning, the proposed goods and services would not address this need. The respondent further submits that there are discrepancies between the applicant's subjective reporting and the objective observations of the assessors themselves. Dr. Costa El-Hage stated that during the assessment, validity testing indicated that the applicant scored above the acceptable standard on three of the five scales and the recommended cut-off score on the Total Scale, and that this scoring could be explained by a "cry for help" presentation or symptom magnification."

57The respondent submits that during Dr. Bentley's assessment, the applicant confirmed that she remains independent with all aspects of her personal care tasks and continues to be responsible for cooking for the household. Dr. Bentley concluded that her clinical presentation falls within the MIG and that she does not present with any objective impairments related to the accident. Dr. Bentley completed an addendum report dated July 31, 2023 where he advised that his previous opinion remains unchanged.

58I am persuaded by the applicant's submissions and agree that there is evidence of consistent physical and psychological symptom reporting since the accident, as well as reports of her functional limitations as a result.

59I accept that the goal of the treatment plans is supported by the evidence before me which indicates that the applicant suffers functional limitations which prevent her from participating in her activities of normal living.

60In this regard, I find that both Dr. Upadhye and Dr. Toor reported that the applicant suffered a musculoskeletal impairment as well as severe levels of pain. As well, both found that she had difficulties with her functionality and that a home assessment with an occupational therapist would clarify her needs and educate her with the necessary pacing and task modification strategies.

61While Dr. Costa El-Hage concluded that the applicant had already undergone several physical assessments and felt that she would benefit from a neuropsychological assessment, she also commented that the applicant's emotional condition had deteriorated since her last assessment and that her pain was impacting her daily functioning, despite her efforts to manage her pain. She concluded that the applicant was suffering an ongoing psychological impairment that would remove her from the MIG. I find that Dr. Costa El-Hage dismissed the need for the occupational therapy assessment and services based on her own recommendations that the applicant should undergo a neuropsychological assessment and her opinion that the applicant had already undergone several physical assessments. In my view, she did not consider the goals of the treatment plan which were to explore the applicant's functional cognitive abilities, psycho-emotional and physical impairments which were impeding the applicant from returning to her normal daily activities. The purpose of the treatment plan was not to provide a cognitive or psychological assessment, but to address the applicant's functional impairments due to her psychological and physical condition.

62I also do not find the report of Dr. Bentley persuasive. He concluded that there were no objective impairments relating to the accident despite the applicant's subjective complaints. While the respondent submitted that the applicant stated during the assessment that she is responsible for cooking, the respondent failed to also mention that she stated that her two children complete the laundry, garbage dishes, vacuuming, sweeping and mopping tasks, that she no longer drives and has both a fear and anxiety as a passenger in a vehicle or that she has not been working due to her symptoms. I find that Dr. Bentley did not address the applicant's reported functional limitations or the goals of the treatment plan in dispute in reaching his conclusions.

63For the reasons set out above, I find that the applicant has proven on a balance of probabilities, that she is entitled to the proposed occupational therapy assessment and occupational therapy services.

Issue 8 – OT jobsite analysis proposed June 15, 2023

64I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plan for an OT jobsite analysis.

65The applicant claims entitlement to the treatment plan, dated June 15, 2023, prepared by Joanne Romas, occupational therapist, recommending an OT jobsite analysis, in the amount of $2,200.00.

66The applicant submits that she is presently disabled from returning to work due to her accident-related impairments and it is unclear whether she will be able to return to her position at The Reset Team from which she took a medical leave in September, 2022. The applicant submits that Ms. Romas outlined the importance of a jobsite analysis, setting out that it would determine the "physical, environmental, equipment and education required for the client to resume all of her pre-accident work tasks safely and independently and determine return to work options." It would also explore her return-to-work options and include a physical demands analysis.

67The applicant further submits that the necessity of the OT jobsite analysis was supported by Dr. Toor in his report, dated May 15, 2023. Dr. Toor noted that beyond helping to determine whether she is capable of a return to work, it would be beneficial to her recovery, commenting, "Determining and minimizing biomechanical stresses of work activity will help alleviate her symptoms."

68The respondent submits that the treatment plan for an OT jobsite analysis was denied by letter dated July 7, 2023, on the basis that it was not essential to the applicant's treatment or rehabilitation as per sections 15(1)(h) and 16(3)(1) of the Schedule. The respondent stated that, "The job site assessment is related to the Income Replacement Benefit which was previously addressed in an insurer's examination and stopped effective June 15, 2016 in accordance with section 44 of the Statutory Accident Benefits Schedule."

69I find that the applicant was not working at the time the treatment plan was submitted. I further find that she complained of musculoskeletal problems that caused her difficulty in performing the essential tasks of her employment. I therefore find that it was reasonable for her to have sought a jobsite analysis at this time.

70I find that the goals of the treatment plan were reasonable and achievable with the proposed assessment and that the cost of the assessment was reasonable. The goals of the treatment plan were to determine the "physical, environmental, equipment and education required for the client to resume all of her pre-accident work tasks safely and independently and determine return to work options."

71I find that the report of Dr. Toor, dated May 15, 2023, supports the need for a jobsite analysis. Dr. Toor concluded that the applicant suffers a musculoskeletal impairment, and she would have difficulty in performing the essential tasks of her employment. She would be limited to employment that avoids prolonged standing, prolonged walking, prolonged sitting, bending, reaching, heavy lifting and carrying. In order to quantify her inabilities, he recommended an up-to-date functional capacity evaluation, work site analysis and matching job demands analysis.

72I find the respondent's submissions that the treatment plan is not reasonable and necessary because the applicant is not entitled to an income replacement benefit unpersuasive. The goal of the assessment is to help the applicant return to her work tasks safely and independently. The fact that she is not entitled to an income replacement benefit is not relevant in determining whether the jobsite analysis is reasonable or necessary.

73For the reasons set out above, I find that the applicant has proven on a balance of probabilities that she is entitled to the proposed OT jobsite analysis.

Interest

74Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to the OCF-6 for medication expenses and the treatment plans for a chronic pain assessment, attendant care assessment, occupational therapy assessment and services and OT jobsite analysis, interest is payable on those benefits.

ORDER

75For the reasons outlined above, I find that:

i. The applicant is entitled to the OCF-6 for medication expenses, dated July 12, 2019;

ii. The applicant is not entitled to the OCF-6 for a left knee brace;

iii. The applicant is entitled to the treatment plans in dispute, namely the treatment plans for a chronic pain assessment, an attendant care assessment, an occupational therapy assessment, occupational therapy services and an OT jobsite analysis; and

iv. The applicant is entitled to interest in accordance with s. 51 of the Schedule.