Licence Appeal Tribunal File Number: 22-013368/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:
Theresa Roxanne Schmidt
Applicant
and
Heartland Farm Mutual Inc.
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Colton M. Leung, Counsel
For the Respondent: Manmeet (Mini) Kohli, Counsel
HEARD: By way of written submissions
OVERVIEW
1Theresa Roxanne Schmidt, the applicant, was involved in an automobile accident on February 2, 2022, 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, Heartland Farm Mutual Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from May 26, 2022 ongoing?
ii. Is the applicant entitled to attendant care benefits in the amount of $896.09 per month from June 24, 2022 ongoing?
iii. Is the applicant entitled to the treatment plans (“OCF-18s”) proposed by iScope Concussion and Pain Centres as follows:
a. outstanding balance of $1,402.30 for occupational therapy dated June 20, 2022;
b. outstanding balance of $2,104.25 for occupational therapy dated August 16, 2022;
c. $6,548.71 for occupational therapy dated September 13, 2022?
d. outstanding balance of $225.00 for other medical services proposed in an OCF-18 dated March 17, 2022?
iv. Is the applicant entitled to $3,790.71 for psychological services, proposed by Fox Rehab in an OCF-18 dated January 3, 2023?
v. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions the applicant confirmed that the OCF-18 dated June 20, 2022 identified as issue 4(i) in the Case Conference Report and Order was being withdrawn.
RESULT
4The applicant is entitled to a non-earner benefit of $185.00 per week from May 26, 2022 to January 31, 2024, plus interest.
5The applicant has established entitlement to monthly attendant care benefits in the amount of $83.00 per month from June 24, 2022 to date. However, she is not entitled to payment of the benefit for the time-period claimed or interest, because she has not proven that the benefit has been incurred.
6The applicant is not entitled to the outstanding balance of $1,402.20 for the OCF-18 dated June 20, 2022.
7The applicant is entitled to the outstanding balances of the OCF-18s dated August 16, 2022 and March 17, 2022, plus interest.
8The applicant is entitled to the partial amount of $285.00, plus interest for the OCF-18 dated September 13, 2022 for $6,548.71 of occupational therapy services. The applicant is not entitled to the remaining balance of the OCF-18.
9The applicant is entitled to the OCF-18 dated January 3, 2023 in the amount of $3,790.71 for psychological services, plus interest.
10The respondent is not liable to pay an award.
ANALYSIS
Background and Parties’ Positions
11On February 2, 2022, the applicant was involved in an automobile accident when as a pedestrian, she was hit by a car while crossing the street. She reported to her family doctor the next day that she was hit and “may have passed out” for a few seconds, and complained of memory loss, dizziness, nausea, arm, shoulder, back and left ankle pain. The applicant submits that post-accident she has been diagnosed with a concussion/traumatic brain injury with corresponding neurological impairments and headaches, chronic neck, low back and shoulder pain, and psychological impairments including adjustment disorder with mixed anxiety and depressed mood, and PTSD with depression and anxiety.
12The applicant submits that post-accident, she was forced to limit her education by dropping her minor and was prevented from taking on any employment after graduation. She argues that she is now unable to complete most of her pre-accident daily activities, and requires attendant care services. The applicant further submits that she requires the proposed assistive devices and occupational therapy services to help manage her chronic pain and post-concussive impairments. Finally, the applicant argues that the denied psychological treatment is needed to address her ongoing anxiety and depression.
13The respondent disputes that the applicant has established entitlement to the requested medical and rehabilitation and specified benefits. It also raises the issue of causation with respect to some of the applicant’s symptoms. The respondent submits that seven months post-accident, the applicant had an MRI of the brain which was “suspicious for demyelinating process” and that on June 27, 2023 the applicant was diagnosed with multiple sclerosis (“MS”). As such, the respondent argues that the applicant’s symptoms of headaches, dizziness, vision changes and cognitive impairments are due to her MS diagnosis and are not as a result of the accident.
14The respondent further submits that the evidence does not establish that the applicant suffered a concussion as a result of the accident. Rather, the initial report of the applicant’s family physician and emergency records do not reveal a head injury. The respondent argues that any diagnosis of a concussion or traumatic brain injury was based solely on the applicant’s self-reported complaints.
Causation
15Based on the evidence before me, I find that the accident was the necessary cause of the applicant’s headaches, dizziness, vision changes and cognitive impairments.
16The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities, see Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31. The applicant must show that she would not have suffered the injuries “but for” the accident. The injuries do not need to be “the cause” of the accident, but at least “a necessary cause”. The respondent raises the issue of causation with respect to the applicant’s symptoms of headaches, dizziness, vision changes and cognitive impairments.
17I find that the applicant has met her onus to prove that she suffered a concussion as a result of the accident. Although the applicant initially reported that she did not “think” that she hit her head, she did report dizziness, memory loss, nausea and possibly loss of consciousness for a few seconds to her family physician Dr. Marinova a day after the accident. Dr. Marinova referred the applicant for a CT scan. The applicant also reported a number of concussive symptoms again on March 2, 2022. Dr. Marinova diagnosed the applicant with a concussion and listed concussion and post-concussive syndrome on the May 20, 2022 Disability Certificate (“OCF-3”).
18Dr. Marinova referred the applicant to a concussion clinic, where she was diagnosed with a mild traumatic brain injury, post-traumatic headaches, vestibulopathy and post-traumatic vision syndrome. Dr. Marinova reiterated her concussion diagnosis again in an August 1, 2023 letter where she noted that the applicant had not had these symptoms pre-accident. As the applicant’s treating family physician, I place significant weight on Dr. Marinova’s findings. I further note the applicant’s submissions and evidence that the respondent had removed her from the Minor Injury Guideline due to her accident-related concussion.
19I note the respondent’s submissions regarding the applicant’s recent MS diagnosis. While it appears that there is a possibility that the reported cognitive impairments could be attributed to MS as opposed to a concussion, the respondent has not provided any medical opinion in support of this claim. It is well-settled that submissions alone are not evidence. In contrast, the applicant has provided a follow-up letter from her treating neurologist, Dr. Rollins. In the August 31, 2023 letter, Dr. Rollins noted that although the applicant’s reported symptoms of dizziness, headaches and visual changes can be caused by MS, “common sense would tell us that if they happened immediately after a concussion/head injury, they were caused by the head injury”.
20The respondent has not provided a competing medical opinion to rebut Dr. Rollins’ reporting letter. It argues that its s. 44 neurology assessor Baskind “did not have the benefit of the relevant MRIs nor the diagnosis of MS” at the time of his assessment. However, I note that in his Neurology addendum dated November 16, 2022, Dr. Baskind noted that he had been asked to review additional documentation including the September 20, 2022 MRI detailing the suspicion of demyelinating process, and had stated that the applicant required a neurology consultation. No further evidence has been led by the respondent of an updated s. 44 neurology assessment or consultation.
21As such, the only medical opinion before me on the issue of the applicant’s MS diagnosis is from Dr. Rollins, which supports the applicant’s position that her reported cognitive impairments stemmed from her accident-related concussion.
Non-Earner Benefits (“NEBs”)
22I find that the applicant is entitled to payment of an NEB of $185.00 per week from May 26, 2022 to January 31, 2024.
23Section 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.
24I find that the evidence establishes that the applicant was unable to continue with substantially all of her pre-accident activities due to her ongoing chronic pain, and post-concussive symptoms. The Court of Appeal in Heath v. Economical noted 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. I find that the applicant has led persuasive medical evidence that she was practically prevented from engaging in her pre-accident activities.
25The applicant identified her university program as being very important to her. The applicant was a mature student and had returned to school in 2017. At the time of the accident, she was a full-time student and in her final semester. Although the respondent points to the fact that the applicant was able to complete her political science degree as evidence that she did not suffer a complete inability to carry on a normal life, I agree with the applicant that the evidence establishes that she was significantly impaired from participating in her program.
26The applicant has led evidence that in addition to doing her major in Political Science, she had added a minor in Human Rights Law in her final year. However, her transcript shows that she was unable to complete any of the four courses for this minor. The applicant has also led extensive correspondence with her professors during the two months post-accident when she was trying to complete her last semester. In my view, the correspondence establishes that the applicant was only able to complete the last few months with extensive accommodations. Given these accommodations and the fact that she was unable to complete any courses for her minor, I find the substantial reduction in the applicant’s 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’.
27I further am persuaded by Dr. Marinova’s consistent findings of significant post-accident functional impairments. The applicant’s family physician provided an OCF-3 dated May 20, 2022 where she noted that the applicant could not continue class attendance, sit or drive, could not do anything at home, did not socialize, had daily headaches, short-term memory issues and constant left shoulder and back pain. The anticipated duration of this complete inability was noted to be more than 12 weeks.
28In a follow-up reporting letter dated August 1, 2023, Dr. Marinova summarized the applicant’s impairments post-accident and noted that the applicant could not finish her minor and was only able to compete her degree with accommodations. She stated that pre-accident the applicant cared for her parents but now is unable to do so, and that it was too painful to prepare meals for them. Despite cortisone injections for pain, the applicant still needs help vacuuming, mopping, with household tasks and needs the help of her adult daughter. Dr. Marinova further noted that the applicant’s impairments have affected her finding and working at any kind of job. As the applicant’s treating family physician for more than seven years, I place significant weight on Dr. Marinova’s assessment. The applicant’s treating physiatrist and s. 25 assessors noted similar restrictions, also noting that the applicant now needed assistance in such self-care tasks as entering and exiting the shower, and that she no longer goes to the gym or socializes with friends other than online messaging.
29The respondent relies on the reports of its s. 44 assessors, who found that the applicant was able to return to a number of pre-accident activities such as lighter housekeeping tasks with pacing and adaptive strategies. However, while the applicant has been able to return to some of her pre-accident activities, I am not persuaded by the respondent’s argument that she is truly “engaging in” those activities. From the evidence, the applicant’s pain makes it difficult for her to attempt heavier tasks, her range of motion is restricted, and she needs help from others to do many of her housekeeping and some self-care activities. I find that the manner in which the applicant engages in these tasks has been significantly affected by her pain.
30As such, I find that the applicant has established that she sustained impairments that continuously prevent her from engaging in substantially all of the activities in which she was ordinarily engaged before the accident.
Attendant Care Benefits (“ACBs”)
31I find that the applicant is entitled to attendant care benefits (“ACBs”) in the amount of $83.00 per month.
32Section 19 of the Schedule states 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 for attendant care services provided by an aide or attendant.
33Section 3(7)(e) of the Schedule provides guidance on when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person. The applicant bears the burden of proving entitlement to ACBs on a balance of probabilities.
34The applicant relies on a Form 1 and Occupational Therapy (“OT”) assessment report dated June 22, 2022 from her occupational therapist Mr. Agyemang-Duah. Mr. Agyemang-Duah noted the applicant’s restrictions particularly related to her back and left shoulder pain, in addition to limited standing tolerance and difficulty bending at the waist. Mr. Agyemang-Duah found that the applicant required $896.09 in monthly attendant care services.
35The respondent relies on the Form 1 and OT assessment of Danielle Wilson dated September 8, 2022. Ms. Wilson found that the applicant required 14 minutes per week of assistance to help with transfers in and out of the shower, totalling approximately $21.18 in monthly attendant care services.
36The areas of disagreement between the parties are as specified below:
Applicant’s Form 1
Respondent’s Form 1
Level 1 Grooming
(25 min/ week) Help with dying hair, toenail clipping and shaving
(0 min)
Food preparation/ Service
(60 min/ 7x week) Assistance for meal preparation tasks due to bending and lifting restrictions
(0 min)
Mobility
(34 min/week) Assistance with sit to stand transfers and ambulating in the community
(0 min)
Level 2 Hygiene
(35 min/week) Changing bedding
(0 min)
Level 3 Exercise
(217 min/ week) Help with at home vestibular exercises
(0 min)
Bathing
(14 min /week) Help with transfers in and out of bathtub
(14 min/week) Help with transfers in and out of shower
37The parties are in agreement that the applicant requires 14 minutes a week to assist in transfers when bathing. However, I find that the applicant has also established that the 25 minutes per week of grooming assistance and 35 minutes per week of hygiene for making and changing the bed, are also reasonable and necessary. In its OT assessment, the respondent noted that the applicant was colouring her hair less often due to the associated left shoulder pain, that her daughter assisted her with shaving of lower extremities and that she had cut her toenails once “with associated pain in the back”.
38The applicant similarly reported to the respondent’s OT assessor that she was not changing her bedding due to associated pain in her back and left shoulder. The medical evidence establishes the applicant’s chronic pain in her back and left shoulder. Given the applicant’s limitation due to pain with respect to these tasks, I find that the 25 minutes of assistance for grooming and 35 minutes of assistance for hygiene assistance is reasonable and necessary.
39However, I do not find that the applicant has established that the remaining calculations for ACBs are reasonable and necessary. With respect to food preparation and mobility, the medical evidence establishes that the applicant was independent in preparation of meals and was able to transfer from sitting to standing without assistance. Further, although the applicant’s Form 1 was claiming 217 minutes per week for assistance with exercise, the applicant does not direct me to evidence from her treating clinic as to why her exercise program must be supervised.
40As such, I find that the applicant is entitled to attendant care services totalling $83.00 a month comprising of:
i. 14 minutes per week for assistance with transfers when bathing;
ii. 25 minutes per week for grooming assistance;
iii. 35 minutes per week for bedroom hygiene.
41However, although I have determined that the applicant has proven her eligibility for the benefit, she is not entitled to payment because she has not proven that the benefit has been incurred pursuant to s. 3(7)(e) of the Schedule. The applicant has not provided any submissions on whether the ABCs have been incurred or if they should be deemed incurred.
42The language in s. 19 of the Schedule is clear that an insurer is only liable to pay for incurred ACBs. Further, s. 3(7)(e) of the Schedule defines what is required to meet the definition of incurred. I find the applicant has not submitted any proof that she paid for, promised to pay for, or became legally obligated to pay for, the service to which the expense relates, as required by the Schedule. Nor did she submit evidence that any services performed by her daughter resulted in an economic loss. As a result, I find that the applicant has not met her onus in proving that ACBs have been incurred.
43For the above-noted reasons, the applicant is not entitled to payment of ACBs in the amount of $83.00 per month from June 24, 2022 to date, because she has not proven that the benefit has been incurred.
44Sections 14 and 15 of the Schedule set out that an insurer is liable to pay medical benefits that shall cover all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.
45The 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.
Outstanding balance of $1,402.30 for occupational therapy services listed in OCF-18 dated June 20, 2022
46I find that the applicant has not established that the outstanding balance of this OCF-18 is reasonable and necessary.
47Although the applicant lists this OCF-18 as an issue in dispute and included a copy of it, she has not provided any submissions on this treatment plan. No details were provided by the applicant as to the portion of the plan that was approved, or why she is entitled to the remaining items listed in the OCF-18. The Tribunal cannot connect the dots and make the applicant’s case. Doing so inappropriately places the Tribunal in the role of advocate. It is up to the applicant to make specific citations with reference to the evidence and explain why it supports entitlement to a treatment plan. Without any specific submissions on this OCF-18, I find that the applicant has not established, on a balance of probabilities, that the outstanding balance of the treatment plan is reasonable and necessary.
Outstanding balance of $2,104.25 for occupational therapy services listed in OCF-18 dated August 16, 2022
48I find that the outstanding balance of the OCF-18 is payable pursuant to s. 38(8) of the Schedule.
49The applicant submitted an OCF-18 dated August 16, 2022 in the amount of $3,202.00. The plan proposed occupational therapy treatment sessions, travel time and mileage. The respondent initially appears to have sent two letters dated September 15, 2022, one approving the OCF-18 and the other denying the OCF-18 and sending the applicant to an IE. In a subsequent letter dated November 29, 2022, the respondent partially approved the plan in the amount of $1,097.74. The applicant seeks the remaining balance of $2,104.25.
50The applicant submits that she is entitled to the entirety of the OCF-18, since the respondent initially sent a letter dated September 15, 2022 approving the plan in full, but then appears to have reversed itself and denied the plan. She argues that the reversal of the approval with no notice, is evidence of bad faith. The respondent submits that two OCF-18s had been submitted in duplicate by the applicant, and that one had been approved, while the other was sent to an IE and ultimately partially denied. It argues that despite any insurer error, the onus still rests with the applicant to establish that the remaining balance of the OCF-18 is reasonable and necessary.
51I find that the correspondence provided by the respondent with respect to this OCF-18 is confusing and contradictory and does not provide reasons for the partial denial, clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision.
52Although the respondent submits that two OCF-18s had been submitted for this plan, I have not been directed to evidence of duplicate OCF-18s in the materials presented by the parties. However, there are two letters dated September 15, 2022 sent by the respondent, in response to the August 16, 2022 OCF-18. In the first September 15, 2022 letter submitted by the applicant, the respondent agreed to approve the treatment plan. However, in the second letter dated September 15, 2022 submitted by the respondent, it denied the plan, provided reasons for the denial, and referred the applicant to an IE. A subsequent letter dated November 29, 2022 was sent by this respondent. In this letter, the respondent stated that the OCF-18 was partially approved in the amount of $1,097.74.
53I find that the November 29, 2022 letter did not provide clear reasons for the partial denial. The letter does not specify what portion of the OCF-18 was approved, and what was being denied. It simply states that the respondent’s OT assessor Danielle Wilson had concluded that the OCF-18 was partially reasonable and necessary in the amount of $1,097.74. However, the applicant submits that this OCF-18 was never included as part of an IE assessment. The respondent does not direct me to any portion of an IE assessment where this IE was considered. Moreover, the letter states that the partially approved OCF-18 was enclosed, however, I have not been provided with a copy of an OCF-18 which indicates which portion of the OCF-18 had been approved.
54As such, I find that the respondent’s correspondence did not inform the applicant as to what portion of the OCF-18 was denied and why. In order for a denial to comply with s. 38(8) of the Schedule, an applicant must be provided with clear reasons, sufficient to make an informed decision to either accept or dispute the decision. If the applicant was not informed as to which specific portions of the plan were approved, she would be unable to know whether to dispute the denial.
55Correspondingly, I find that pursuant to s. 38(11) of the Schedule, the outstanding balance of $2,104.25 of the OCF-18 is payable by the respondent upon proof that the denied treatment has been incurred.
OCF-18 dated September 13, 2022 in the amount of $6,548.71 for occupational therapy
56I find that the applicant has established that a portion of this OCF-18 is reasonable and necessary, in the amount of $285.00. The applicant is not entitled to the remaining portion of the OCF-18.
57The OCF-18 dated September 13, 2022 proposed assistive devices, including a Tempur Pedic mattress in the amount of $4,796.10, a mattress base in the amount of $499.99, a Tempur Pedic adapt pillow, a bed assist rail and $200 for the cost of the OCF-18 form completion.
58Although the applicant submits that the mattress and mattress base are needed as they are pressure relieving, I note the respondent’s OT assessor’s findings that the applicant has not trialed other sleep alternatives, such as body pillows, a mattress topper or mindfulness. In the applicant’s s. 25 OT assessment dated June 16, 2022, Mr. Agyemang-Duah had provided an extensive list of assistive and rehabilitative devices, but had not included a Tempur Pedic mattress and base. Rather, he suggested a lumbar support pillow for when laying prone, OT therapy for sleep hygiene, and “an exploration of sleep surfaces to enhance quality and quantity of sleep”.
59The applicant has not provided any evidence as to whether any alternative sleep surfaces or devices were canvassed before submitting the OCF-18 for the mattress and base. Given the high cost of the Tempur Pedic mattress and base, I find Ms. Williams’ suggestion of canvassing mattress toppers or a body pillow first, to be reasonable. No submissions or evidence were provided as to whether such measures had been considered and why they were lacking. As such, I find that the applicant has not met her onus to prove that the proposed mattress and base are reasonable and necessary.
60With respect to the Tempur Pedic adapt pillow, the respondent’s OT assessor noted that this expense was duplicative, since as part of a prior treatment plan dated June 20, 2022, a cervical pillow had already been approved. The applicant has not provided any submissions or evidence as to why another cervical pillow is required a few months later. As such, I find that she has not established the reasonableness and necessity of this item.
61However, I find the $85.00 expense for a bed assist rail to be reasonable and necessary. The bed rail was one of the items recommended by Mr. Agyemang-Duah. Given the applicant’s ongoing back pain, I find the proposed device to be a reasonable expense to assist in safe bed transfers.
62As such, I find that the applicant is entitled to $85.00 for the bed assist rail and $200.00 for the OCF-18 form completion. The applicant is not entitled to the remaining balance of the OCF-18.
Outstanding balance of $225.00 from the OCF-18 dated March 17, 2022
63I find that the remaining balance of $225.00 is payable as a result of the respondent’s non-compliance with s. 38(8) of the Schedule.
64The OCF-18 proposed vestibular physiotherapy treatment, in addition to a number of administrative expenses, totalling $2,021.03. I agree with the applicant the respondent failed to provide reasons for the denial of the $225.00 amount, in its letter dated March 30, 2022.
65In this correspondence the respondent partially approved $1,796.03 out of the requested $2,021.03, and stated that it was only responsible for payment of expenses related to the professional services and maximum fees payable under the Professional Services Guideline. However, no additional information was provided by the respondent as to which of the six line items exceeded the maximum fees or failed to relate to professional services under the PSG. As such, I find that the respondent did not provide reasons for the partial denial, clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision. Accordingly, pursuant to s. 38(11) of the Schedule, the outstanding balance of $225.00, is payable by the respondent upon proof that the denied treatment has been incurred.
OCF-18 dated January 3, 2023 in the amount of $3,790.71 for psychological services
66I find that the applicant has established that the OCF-18 for psychological services is reasonable and necessary.
67The applicant submitted an OCF-18 dated January 3, 2023 for a course of 14 sessions of psychotherapy treatment and the drafting of a progress report. The respondent denied the treatment plan relying on its s. 44 psychological IE report of Dr. David Direnfeld, who noted the applicant’s history of mood disturbance and anxiety attacks. Dr. Direnfeld found insufficient evidence of an accident-related exacerbation of any pre-existing psychological conditions.
68Although the respondent submits that there is insufficient evidence of an accident-related psychological impairment, I find that the applicant has led sufficient medical evidence in this regard. A month after the accident, Dr. Marinova noted the applicant’s reports of stress and anxiety and the need for counselling. The respondent’s s. 44 addendum report dated November 16, 2022 detailed the applicant’s attempts around this time to receive counselling through her university counselling services. A few months later, on May 16, 2022, the applicant was assessed by Dr. Philip Miller, psychologist, and in his s. 25 report, he diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, and features of somatic symptom disorder with predominant pain.
69The applicant continued to report psychological symptoms throughout 2022 to her treating physiatrist Dr. Anureet Garg. Dr. Garg referred the applicant to a pain management clinic, and in May 2023, Dr. Richard Doran diagnosed the applicant with posttraumatic stress disorder with depression and anxiety, in addition to a number of physical impairments. Dr. Doran noted that the applicant had been receiving psychological treatment, but that further counselling had been denied by the respondent. He started the applicant on duloxetine for her depression and pain, and noted that the applicant would benefit from ongoing psychological treatment.
70The OCF-18 dated January 3, 2023 noted that the applicant had completed a course of psychological treatment over the previous six months. It was noted that those treatment sessions had been helpful in assisting the applicant with partially managing her anxiety, pain symptoms and panic attacks. Future sessions were proposed to further develop cognitive strategies to stabilize her mood, identify and modify maladaptive beliefs. I find that the applicant has established that a further course of psychological treatment is reasonable and necessary.
Interest
71The applicant is entitled to interest in accordance with s. 51 of the Schedule for the outstanding payment of NEBs, the OCF-18 dated January 3, 2023, the outstanding balances of the OCF-18s dated August 16, 2022 and March 17, 2022, the OCF-18 dated January 3, 2023 in the amount of $3,790.71 and the partial amount of $285.00 for the OCF-18 dated September 13, 2022.
Award
72Under 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 properly consider her medical productions, which supported her claim to all benefits.
73I 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, some ACBs 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 assessments to be excessively impudent, stubborn, unyielding or immoderate. As such, the applicant is not entitled to an award.
ORDER
74The applicant is entitled to an NEB of $185.00 per week from May 26, 2022 to January 31, 2024, plus interest.
75The applicant has established entitlement to monthly ACBs in the amount of $83.00 per month from June 24, 2022 to date. However, she is not entitled to payment of the benefit for the time-period claimed or interest, because she has not proven that the benefit has been incurred.
76The applicant is not entitled to the outstanding balance of $1,402.20 for the OCF-18 dated June 20, 2022.
77The applicant is entitled to the outstanding balances of the OCF-18s dated August 16, 2022 and March 17, 2022, plus interest.
78The applicant is entitled to the partial amount of $285.00, plus interest for the OCF-18 dated September 13, 2022. The applicant is not entitled to the remaining balance of the OCF-18.
79The applicant is entitled to the OCF-18 dated January 3, 2023 in the amount of $3,790.71 for psychological services, plus interest.
80The respondent is not liable to pay an award.
Released: December 23, 2024
__________________________
Ulana Pahuta
Adjudicator