Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-001231/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:
Qahtan AL-Rahami
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Denise Junkin, Counsel
For the Respondent: Ibrahim Farag, Counsel
HEARD: By way of written submissions
OVERVIEW
1Qahtan AL-Rahami, the applicant, was involved in an automobile accident on February 1, 2021, 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, Aviva Insurance Company of Canada, 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to the treatment plans proposed by Spinal Solution as follows:
(1) $2,716.42 ($3,816.41 less $1,100.00 approved) for chiropractic services and medical devices, in a treatment plan, dated February 24, 2021?
(2) $2,998.11 for chiropractic services and medical devices, in a treatment plan, dated August 30, 2021?
iii. Is the applicant entitled to the treatment plans proposed by 2430307 Ontario Ltd. as follows:
(1) $1,050.88 for an attendant care benefit assessment, in a treatment plan, dated April 6, 2022?
(2) $2,300.00 for a psychological assessment, in a treatment plan, dated April 12, 2022?
(3) $1,293.80 for a functional ability assessment, in a treatment plan, dated May 31, 2022?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant’s accident-related injuries are outside of the MIG as he has a documented pre-existing condition that prevents him from achieving maximal medical recovery under the MIG.
5The applicant is entitled to the chiropractic and medical devices, proposed by Spinal Solutions in the treatment plans dated February 24, 2021 and August 30, 2021.
6The applicant is not entitled to an attendant care assessment or psychological assessment, proposed by 2430307 Ontario Ltd, in the treatment plans dated April 6, 2022.
7The applicant is entitled to a functional ability assessment, proposed by 2430307 Ontario Ltd., in the treatment plan dated May 30, 2022.
8The respondent is required to pay the applicant an award pursuant to Reg. 664 in the amount of $1,885.79.
9The applicant is entitled to interest on overdue payments pursuant to s. 51 of the Schedule.
PROCEDURAL ISSUES
10The respondent has brought a Notice of Motion, dated May 10, 2024, seeking the following Order:
i. To dismiss the application due to the applicant’s non-compliance with the Tribunal’s September 11, 2023 Case Conference Report and Order (“CCRO”) and filing his reply submissions after the prescribed deadlines;
ii. To strike paragraphs 4 and 7 of the applicant’s reply submissions on the grounds that they ought to have been raised in the applicant’s initial submissions and do not form a proper reply; and
iii. For costs of the herein motion, if opposed.
11I deny the respondent’s motion, for the reasons set out below.
i) Late filing of Reply Submissions
12I find that the respondent’s request to dismiss the application due to the applicant’s late filing of his reply submissions is denied.
13The respondent submits that pursuant to the CCRO, the applicant’s reply submissions were required to be submitted seven days prior to the May 10, 2024 hearing, being May 3, 2024. The applicant’s reply was submitted on May 7, 2024.
14The applicant submits that on May 3, 2024, his counsel submitted an email to the Tribunal and counsel for the respondent, enclosing his reply submissions. On May 7, 2024, the applicant’s counsel received a voicemail from the Tribunal advising that the reply submissions were not attached to the May 3, 2024 email. Upon becoming aware of this, the applicant’s counsel sent a further email to the Tribunal and counsel for the respondent, attaching the reply submissions dated May 3, 2024. The May 7, 2024 email acknowledged that the applicant’s reply submissions were inadvertently not attached to the May 3, 2024 email.
15I find that the delay in submitting the reply submissions was an administrative error. I find that it is clear from the emails submitted by the applicant’s counsel that there was an intent to serve the reply submissions on May 3, 2024 in accordance with the CCRO. I further find that there is no prejudice to the respondent, as the late reply submissions have no impact on the respondent’s ability to present its case to the Tribunal. The respondent had already submitted its responding materials and had no further right of reply.
16For the reasons stated above, I deny the respondent’s request to dismiss the applicant’s application due to the late submission of his reply submissions.
ii) Reply Submissions:
17The respondent seeks an Order to strike paragraphs 4 and 7 of the applicant’s reply submissions on the grounds that the applicant ought to have made these submissions in his initial submissions and do not form a proper reply.
18The respondent submits that the applicant improperly raised new arguments in paragraphs 4 and 7 of his reply submissions. The respondent submits that reply submissions are not an opportunity for the applicant to raise new information and new arguments that should have been raised in the applicant’s initial submissions. The respondent submits that this is prejudicial because it was not afforded the opportunity to address the applicant’s arguments.
19The respondent submits that in paragraph 4 of the applicant’s submissions, fresh but unsubstantiated information was introduced, suggesting that the disputed psychological assessment aimed to aid the applicant in resuming his daily activities. Additionally, a new and unsupported argument was put forth regarding the opinion of Dr. Paul Bruni, chiropractor, who purportedly stated that a psychological assessment was reasonable and necessary. The applicant did not initially assert that a chiropractor had expressed such an opinion.
20The applicant submits that its reply submissions were entirely proper and directly responsive to the respondent’s written submissions. The applicant submits that with respect to paragraph 4 of his reply submissions, the underlying evidence and argument with respect to his entitlement to the psychological assessment, is included in his initial submissions. Paragraph 23 noted the reporting of psychological symptoms on July 21, 2021 to Dr. Farkad Shasha, family doctor, and the clinical notes and records (“CNRs”) are attached at tab 9; paragraph 24 discusses the interview with Viktoria Tolmatshov, therapist, on April 6, 2022, and the treatment plan and interview notes of Ms. Tolmatshov are attached at tab 6; and paragraph 32 discusses the report of Dr. Bruni, chiropractor, dated April 6, 2022 which is attached at tab 15.
21Upon review of paragraph 4 of the applicant’s reply submissions, I find that the applicant further elaborates on the issue of entitlement to the psychological assessment by referring to the CNRs of Dr. Shasha, family physician, in July, 2021, an interview with Ms. Tolmatshov, therapist, on April 6, 2022, and the report of Dr. Bruni, chiropractor, on April 6, 2022. I find that all of these reports and CNRs were provided and relied upon in the applicant’s initial submissions.
22I deny the respondent’s request to strike paragraph 4 of the applicant’s reply submissions.
23The respondent submits that in paragraph 7 of the applicant’s reply submissions, additional new arguments were introduced. The respondent submits that the applicant introduced a new argument concerning ongoing impairments by relying on the report of Dr. Eugene Hewchuk, psychologist. The respondent argues that Dr. Hewchuk is a psychologist and not a medical doctor, and therefore cannot comment on the alleged physical impairments of the applicant. The respondent further submits that the applicant’s claim about the modifications and impact on his employment is a new argument that should not be considered.
24The applicant submits that paragraph 7 of his reply submissions did not introduce new evidence or arguments. Paragraph 31 of his initial submissions discusses the treatment plan of Dr. Hewchuk, psychologist, dated April 6, 2022, which is provided at tab 6. The applicant submits that the reference to Dr. Hewchuk’s commentary in his reply submissions is responsive to the respondent’s written submissions at paragraph 47 which stated that the applicant claims certain things about his functional ability but fails to offer any documentation or evidence to support the claimed impairments. The applicant submits that the submissions with respect to IE physiatry report, prepared by Dr. John Heitzner, physiatrist, dated October 12, 2023, should not be struck, as this report was submitted and relied upon by the respondent in its submissions. The applicant was replying to the respondent’s submissions that ongoing impairments were not noted by Dr. Heitzner, physiatrist.
25Upon review of paragraph 7 of the applicant’s reply submissions, I find that the applicant further elaborates on the treatment plan and comments made by Dr. Hewchuk, psychologist. The applicant has relied on this treatment plan in his initial written submissions, and he therefore did not introduce any new evidence. With respect to the comments about Dr. Heitzner’s IE physiatry report, this report was relied upon by the respondent in its submissions and the applicant was entitled to provide his reply.
26I find that the respondent’s request to strike paragraph 7 of the applicant’s reply submissions is denied.
iii) The respondent is not entitled to costs of the motion
27As I have denied the relief sought by the respondent in its Notice of Motion, I find that no costs are payable by the applicant to the respondent in respect to this motion pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules, 2023.
ANALYSIS
The applicant did not sustain predominantly minor injuries as defined under the Schedule
a) The Minor Injury Guideline
28Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
29An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant. The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG: Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.).
30The applicant submits that he should be removed from the MIG on the basis of his pre-existing conditions that were exacerbated by the accident and preclude his recovery if he is kept within the confines of the MIG.
31I find that the applicant has satisfied s.18(2) of the Schedule. He has proven on a balance of probabilities that he has a documented pre-existing condition that would prevent him from achieving maximal medical recovery under the MIG.
b) Pre-existing lower back and bilateral knee condition
32I find that the applicant has proved on a balance of probabilities that his pre-existing lower back pain and bilateral knee condition would prevent him from achieving maximal medical recovery under the MIG.
33The applicant submits that he has a pre-existing history of lower back pain and bilateral knee pain. His back pain is longstanding since the age of 27 and was exacerbated on multiple occasions prior to the subject accident. He submits that his prior back injury was vulnerable to re-injury, documented by the fact that the injury had been exacerbated by multiple events prior to the subject accident. In 2018, the applicant was involved in a motor vehicle accident and suffered injuries to his bilateral knees and an exacerbation of his back pain. The applicant has provided the CNRs of Dr. Farkad Shasha, family physician, the CNRs of Spinal Solutions where he received physical therapy, the reports of Dr. Dennis Di Pasquale, orthopaedic surgeon, dated November 27, 2020 and March 23, 2021, as well as MRI and radiograph reports, documenting his pre-existing back and knee pain in his submissions.
34The applicant submits that his pre-existing lower back and bilateral knee conditions preclude maximal medical recovery if he is kept within the confines of the MIG. He relies on the treatment plans dated February 24, 2021 and August 30, 2021, prepared by Dr. Massud Asgary, chiropractor, who noted prior conditions which he opined could affect the applicant’s post-accident response to treatment. Dr. Asgary noted that the applicant’s pre-accident knee pain is a further barrier to recovery due to his inability to perform regular activities which may aid in his recovery including weight loss.
35The applicant further relies upon the report of Dr. Paul Bruni, chiropractor, dated April 6, 2022 which notes the applicant’s pre-accident MRI reports and radiographs. Dr. Bruni concludes that the applicant’s medical history of a prior motor vehicle accident on November 26, 2018 and spinal stenosis, which were aggravated by the subject accident, would be a condition which would impact the applicant’s response to treatment.
36The respondent submits that the applicant has not advanced any medical opinion or compelling evidence to demonstrate that he has a pre-existing health condition that would impede his maximal recovery. The respondent relies on the IE physiatry report of Dr. John Heitzner, physiatrist, dated October 12, 2023, which concluded that there is no compelling medical evidence of a pre-existing condition that would take the applicant outside of the MIG or that will prevent maximal medical recovery under the MIG. The respondent further relies upon the IE physiatry report of Dr. Yuri Marchuk, physiatrist, dated April 23, 2021, and the Paper Review IE report, prepared by Dr. Marchuk, physiatrist, dated September 27, 2021, which concluded that the applicant’s injuries were minor.
37In his reply submissions, the applicant submits that Dr. Heitzner, physiatrist in his IE report, dated October 12, 2023, failed to adequately consider the evidence of the applicant’s pre-existing medical condition. In the body of his report, Dr. Heitzner sets out the pre-existing records and complaints of the applicant, yet he concluded that there was no compelling medical evidence of a pre-existing condition to remove the applicant from the MIG. The applicant further submits that Dr. Heitzner failed to consider or make note of the applicant’s pre-accident knee injury and records.
38I find upon review of the pre-accident records provided by the applicant in his submissions, that the applicant has provided sufficient medical evidence that documents his pre-existing lower back and bilateral knee conditions. I further find that the applicant has provided sufficient documentation to support a finding that his pre-existing medical conditions will prevent maximal medical recovery within the funding limit imposed by the MIG.
39I find that the treatment plans dated February 24, 2021 and August 24, 2021, prepared by Dr. Asgary, chiropractor, state that the applicant’s pre-existing medical conditions could affect the applicant’s response to treatment for his injuries sustained in the subject accident. Dr. Asgary specifically sets out that the applicant has a pre-accident history of chronic low back pain and a diagnosis of lumbar stenosis and disc herniation of L5/S1. In addition, he has osteoarthritis (“OA”) of his bilateral knees. Copies of the pre-accident MRI reports were attached. I agree with the applicant that the use of the wording “could affect” is the wording attached to the standard form OCF-18 and does not diminish the meaning behind the conclusions of Dr. Asgary, as submitted by the respondent.
40In addition, upon review of the report of Dr. Bruni, chiropractor, dated April 6, 2022, Dr. Bruni concludes that the applicant appears to have an adverse psychological and emotional response to his injuries and a pre-disposition to having a guarded prognosis for recovery. Dr. Bruni notes that the applicant has a reported medical history of a motor vehicle accident on November 26, 2018, and his spinal stenosis has been aggravated by the subject accident. Dr. Bruni also sets out the results of the applicant’s pre-accident MRI reports and radiographs documenting the applicant’s pre-existing conditions.
41I find the IE report of Dr. Heitzner, physiatrist, relied upon by the respondent, unpersuasive and give it little weight. Dr. Heitzner concluded that there was no compelling evidence of pre-existing conditions that would take the applicant outside of the MIG. However, it is clear from his report that the pre-accident medical documentation was provided for his review. Dr. Heitzner provided no compelling analysis of the pre-existing medical evidence and provided no compelling rationale for reaching his conclusions.
42I further find that the IE report of Dr. Marchuk, physiatrist, relied upon by the respondent unpersuasive and give it little weight. Dr. Marchuk specifically set out the pre-accident medical records of the applicant documenting his lower back condition, as well as the treatment plan of Dr. Asgary, chiropractor, dated February 24, 2021. He further noted the applicant’s pre-accident complaints that he had mild physical, social and recreational restrictions for activities of daily living, self-care tasks, household tasks and home maintenance tasks. However, in his conclusions, when asked if documentation has been provided of a pre-existing medical condition that will prevent maximal medical recovery from the MIG, Dr. Marchuk replied, “not applicable”. I find that despite listing the pre-existing medical documentation and complaints of the applicant pre-accident, Dr. Marchuk made no comments and provided no analysis of the applicant’s pre-existing condition and simply stated that the question was “not applicable”.
43For the reasons stated above, I find that the applicant has proved on a balance of probabilities that his pre-existing lower back and bilateral knee conditions will prevent him from achieving maximal medical recovery under the MIG and he is therefore removed from the MIG on this basis.
Entitlement to Medical and Rehabilitation Benefits
44To receive payment for a treatment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
a) The applicant is entitled to the treatment plan dated February 24, 2021 for chiropractic services and medical devices
45I find that the treatment plan, prepared by Dr. Asgary, at Spinal Solution, dated February 24, 2021, recommending chiropractic and medical devices, is reasonable and necessary as a result of the accident.
46The treatment plan recommends 16 one-hour sessions of chiropractic treatment, biofreeze, an aqua pillow, a TENS unit, a hot/cold gel pack, a back support and a brace in the amount of $3,816.41. The treatment plan was partially approved up to the remaining MIG limits, in the amount of $1,100.00, leaving a balance of $2,716.42 in dispute.
47The treatment plan identifies the goals of treatment as pain reduction, increase strength, increase range of motion, return to activities of normal living and return to pre-accident work activities. Barriers to recovery were listed as “due to his knee pain patient is unable to perform regular activities which may aid in his recovery including weight loss. Distance from home to clinic.”
48The applicant submits that the treatment plan is reasonable and necessary. He submits that the treatment plan was denied on the basis that the applicant’s injuries were minor. As his injuries fall outside of the minor injury definition, the treatment plan should be payable. The applicant further submits that initially, physical therapy was very helpful and within a few months of the accident, he was able to return to work as a truck driver on modified duties, including avoiding lifting, carrying and bending. Due to ongoing pain symptoms, the applicant continued to struggle with some of his employment tasks, but he was optimistic that with continued treatment he would be able to return to his pre-accident level of activity and full work duties. The applicant submits that even after funding was denied, he continued attending treatment with the goal of improving his pain symptoms and returning to normal activities. The applicant submits that pain reduction is a legitimate medical and rehabilitative goal. The applicant submits that continued complaints to multiple medical professionals of his lower back pain, and continued treatment despite denials from the respondent, supports the assertion that he had yet to achieve maximum medical recovery.
49I find that the respondent has not provided submissions about this specific treatment plan. On a general basis, the respondent submits that the applicant has failed to identify the goals of the treatment plan, how the goals are being met to a reasonable degree and whether the cost expanded to achieve the goals is proportional to the benefit. The respondent submits that the applicant has not received any referral for further treatment from his family physician or provided a medical analysis on the benefits of the proposed treatment plan. A copy of the IE report of Dr. Marchuk, physiatrist, dated April 23, 2021 was provided in the respondent’s submissions which concluded that the treatment plan dated February 24, 2021 was not reasonable and necessary. However, the respondent did not specifically refer to this report in reference to this treatment plan in its submissions.
50Upon review of the CNRs of Dr. Shasha, family physician, I find that the applicant made consistent complaints about his pain complaints following the accident and Dr. Shasha recommended ongoing physical therapy in the notes dated February 2, 2021, March 25, 2021 and June 15, 2021.
51I am persuaded by the IE report of Dr. Marchuk, physiatrist, dated April 23, 2021, where Dr. Marchuk concluded that from a physical medicine perspective, the treatment plan dated February 24, 2021 is considered reasonable and necessary within the MIG funding. He notes that the applicant was within the customary healing time and the proposed treatment would be anticipated to assist with recovery. As I have found that the applicant is not within the MIG, the applicant is entitled to the balance of the treatment plan based on Dr. Marchuk’s conclusion that the treatment is reasonable and necessary.
52I further find that the treatment plan submitted properly identified the goals of the treatment plan. I find the decision in LW and Co-Operators, 2016 CanLII 93133 (ON LAT), referred to by the applicant, persuasive, where Adjudicator Sewrattan stated that, “care which relieves physical pain and therefore improves function, is a legitimate medical and rehabilitative goal in the applicant’s case.” The treatment plan dated February 24, 2021, was to assist the applicant in relieving his pain and improving his function.
53I find that the applicant has met his onus of demonstrating on a balance of probabilities that the treatment plan, dated February 24, 2021, is reasonable and necessary.
b) The applicant is entitled to the treatment plan dated August 30, 2021 for chiropractic services and medical devices
54I find that the treatment plan, prepared by Dr. Asgary, at Spinal Solution, dated August 30, 2021, recommending chiropractic and medical devices, is reasonable and necessary as a result of the accident.
55The treatment plan recommends 11 one-hour sessions of chiropractic treatment, biofreeze, a brace and a TENS unit in the amount of $2,998.11.
56The treatment plan identifies the goals of treatment as pain reduction, increase strength, increase range of motion, return to activities of normal living and return to pre-accident work activities. Under barriers to recovery, the plan recommends “start physio for knee pain and get him a knee brace so I can continue treating his low back and neck.”
57The applicant submits that this treatment plan is reasonable and necessary as it was only denied on the basis that his injuries were minor. As his injuries fall outside of the minor injury definition, the treatment plan should be payable. The applicant further submits that the treatment plan was partially incurred in the amount of $1,692.15.
58The applicant further submits in his reply submissions that the goals of the treatment plan, including pain reduction, increase range of motion, increase strength and return to activities of daily living, are clearly outlined in the treatment plan itself and in his submissions. The applicant relies upon the report of Dr. Tri Hoang Nguyen, physiatrist, dated June 14, 2021, which concluded that the applicant had sustained benefit from physical rehabilitation treatments, leading to recommendations to continue such treatments. Dr. Nguyen noted,
Physical rehabilitation: This is the main component that Mr. Al-Ramani can benefit from. He is encouraged to continue working on exercises for his back and his spine as well as his hip muscles. Working on losing weight would also further help. He was advised to take caution with any exercise or activities that worsens his pain. Working with a physiotherapist can be helpful for guiding him through appropriate exercises.
59The respondent relies upon the IE Paper Review report of Dr. Marchuk, physiatrist, dated September 27, 2021, which concluded that the treatment plan dated August 30, 2021, is not reasonable or necessary. Dr. Marchuk cited his previous examination and noted that the applicant’s condition, “had plateaued and the proposed treatment and devices/goods will not likely assist with recovery.”
60I find that the treatment plan in dispute was submitted shortly after the assessment by Dr. Nguyen on June 14, 2021. Dr. Nguyen concluded that the applicant had sustained benefit from the physical rehabilitation treatment received to date and recommended further physical therapy.
61I further find that the treatment plan submitted properly identified the barriers to the applicant’s recovery and the goals of the treatment plan with addressing these barriers. The treatment plan was focusing on treating the applicant’s knee pain and getting him a knee brace so that the therapist could continue treating the applicant’s low back and neck pain.
62I give little weight to the IE paper review report of Dr. Marchuk, physiatrist, dated September 27, 2021, relied upon by the respondent. Within his report, Dr. Marchuk sets out the findings and diagnosis from his initial physiatry assessment report dated April 11, 2021. In response to the specific questions before him, he then states that the treatment plan dated August 30, 2021 is not reasonable and necessary as the applicant’s condition had plateaued and the proposed treatment and devices/goods will not likely assist with recovery. Dr. Marchuk did not complete an up-to-date physical assessment of the applicant and did not provide any rationale or point to any medical evidence to support his finding that the applicant’s condition had plateaued.
63I find that the applicant has met his onus of demonstrating on a balance of probabilities that the treatment plan, dated August 30, 2021, is reasonable and necessary.
c) The applicant is not entitled to the treatment plan dated April 6, 2022 for an attendant care assessment
64I find that the treatment plan, prepared by Dr. Paul Bruni, at 2430307 Ontario Ltd., dated April 6, 2022, recommending an attendant care assessment, is not reasonable and necessary as a result of the accident.
65The treatment plan recommends an assessment, environment of private living space, completion of a Form 1, “preparation, service”, “education, promoting health and preventing disease”, provider travel time and mileage and documentation, support activity, in the amount of $1,050.88.
66The treatment plan identifies the goals of the treatment plan as to provide further recommendations for treatment and pain management, return to activities of normal living and return to pre-accident work activities. Under Part 8 Activity Limitations, the preparing health practitioner noted that the applicant demonstrated restrictions and pain with movements, as well as some psychological symptomatology.
67The applicant submits that this treatment plan is reasonable and necessary and set out the goals of the treatment plan. The applicant provided no submissions as to why the attendant care assessment was recommended and no medical evidence was provided to support that the attendant care assessment was reasonable and necessary other than the treatment plan itself.
68The respondent submits that the applicant is not entitled to the treatment plan proposing an attendant care assessment based on the IE in-home assessment report, prepared by Sarah Lee, occupational therapist, dated July 4, 2022. The respondent states that according to the applicant’s subjective report, “he has since resumed independent performance of his pre-accident self-care, mobility and community tasks.” The respondent further relies upon the IE psychological assessment report, prepared by Dr. Zubina Ladak, psychologist, dated June 7, 2022. Dr. Ladak found that the applicant continues to engage in all of his pre-accident housekeeping and recreational activities. He does the grocery shopping with his wife, exercises and is socially engaged.
69I find upon review of the report of Dr. Bruni, chiropractor, dated April 6, 2022, that Dr. Bruni noted that the applicant stated that he is unable to perform personal care, housekeeping and home maintenance optimally. However, while there are treatment recommendations made by Dr. Bruni in his report, there is no specific recommendation in this report for an attendant care assessment.
70I am persuaded by the IE report of Ms. Lee, dated July 4, 2022, that the treatment plan for an attendant care assessment is not reasonable and necessary. Ms. Lee provided a comprehensive analysis of the applicant’s functional abilities. I find that the applicant reported that he was independent with performance of his self-care, mobility and community tasks. He reported that he was independent with managing his health care needs and had returned to shared grocery shopping one month following the accident. He was unable to return to exercising at the gym since the accident and had not returned to swimming, but he was able to go for walks. The applicant did not provide any reply submissions to rebut the findings of Ms. Lee.
71I find that the applicant has met not his onus of demonstrating on a balance of probabilities that the treatment plan, dated April 6, 2022, is reasonable and necessary.
d) The applicant is not entitled to the treatment plan dated April 6, 2022, for a psychological assessment
72I find that the treatment plan, prepared by Dr. Hewchuk, psychologist, at 2430307 Ontario Ltd., dated April 12, 2022, recommending a psychological assessment, is not reasonable and necessary as a result of the accident.
73The treatment plan recommends a mental health assessment, claimant transportation to treatment and documentation, and support activity, in the amount of $2,300.00.
74The treatment plan identifies the goals of treatment as to return to pre-accident level of psychological functioning, to return to activities of normal living and to return to pre-accident level of psychological functioning.
75In the applicant’s reply submissions, he submits that the purpose of the proposed psychological assessment is to assist him in returning to his activities of daily living by developing a treatment plan to address his psychological symptoms. He submits that he reported that he was very anxious and had symptoms of decreased sleep, loss of interest in things that used to joyous, decreased concentration and decreased appetite to Dr. Shasha, family physician, on July 21, 2021. The applicant was then seen by Dr. Bruni, chiropractor, on April 6, 2022, where he complained of increased stress, anxiety, disordered sleep and psycho-emotional symptoms. He was then referred to Dr. Hewchuk, psychologist, and an interview was conducted on April 6, 2022, by Ms. Viktoria Tolmatshov, who was working under the direct supervision of Dr. Hewchuk. In this interview, the applicant reported sleeping problems, nightmares, anxiety, stress and anxiety while driving, changes in appetite, depressed mood, and difficulty concentrating.
76The respondent relies on the IE psychological assessment report by Dr. Ladak, psychologist, dated June 7, 2022, which concluded that the psychological assessment was not reasonable and necessary. Dr. Ladak noted in her report that the applicant reported a positive mood and denied feeling depressed, irritable, angry or worried. He continued to enjoy life and his interest and motivation remains intact. He also denied feeling nervous or agitated, experiencing any panic attacks or any accident-related flashbacks or nightmares.
77I find that the medical evidence does not demonstrate consistent reporting of psychological sequelae by the applicant following the accident. The only mention of any psychological complaints to Dr. Shasha, family physician, was on July 21, 2021. Despite seeing Dr. Shasha on subsequent occasions, the CNRs do not note any further psychological complaints made by the applicant. While I accept that the applicant may have had some symptoms of depression and anxiety following the accident, I find that there is insufficient evidence of ongoing psychological symptoms.
78I find the report and conclusions of Dr. Ladak’s report persuasive. Dr. Ladak performed psychological testing and found that the applicant did not meet the criteria for a formal DSM-5 diagnosis. I find that the findings of Dr. Bruni, chiropractor, and Ms. Tolmatshov, therapist, are in direct contradiction to the applicant’s denial of any psychological complaints in the report of Dr. Ladak. I further find that the applicant has not made any submissions to dispute the findings of Dr. Ladak, psychologist.
79I further find that the IE in-home assessment report prepared by Ms. Lee, occupational therapist, dated July 4, 2022, noted that the applicant reported that he felt nervous following the accident and he was not sleeping properly. However, he indicated at the time of the assessment, that he was now okay and enjoys socializing and communicating with people.
80I find that the applicant has met not his onus of demonstrating on a balance of probabilities that the treatment plan, dated April 6, 2022, is reasonable and necessary.
e) The applicant is entitled to the treatment plan dated May 30, 2022 for a functional ability assessment
81I find that the treatment plan, prepared by Dr. Bruni, chiropractor, at 2430307 Ontario Ltd., dated May 30, 2022, recommending a functional ability assessment, is reasonable and necessary as a result of the accident.
82The treatment plan recommends an “assessment (examination), total body”, “planning, service”, documentation, support activity, “preparation, service”, and claimant transportation to treatment, in the amount of $1,293.80.
83The treatment plan identifies the goals of treatment as “to provide further recommendations for treatment and pain management”, return to activities of normal living and return to pre-accident work activities.
84The applicant submits that the treatment plan for a functional abilities assessment is reasonable and necessary to address his functional abilities and his ongoing impairments. The applicant relies upon the report of Dr. Bruni, chiropractor, in support of his ongoing pain complaints and functional limitations. He submits that he suffers a functional impairment that affects his individual well-being.
85The respondent submits that the treatment plan is not reasonable and necessary based on the psychological report of Dr. Ladak, psychologist, dated June 7, 2022 and the in-home assessment report of Ms. Lee, occupational therapist, dated July 4, 2022.
86I find that the CNRs of Dr. Shasha support the applicant’s ongoing physical complaints following the accident. The report of Dr. Bruni, chiropractor, dated April 6, 2022, further supports the applicant’s physical complaints and limitations with respect to his functional ability. Dr. Bruni states that the goal of the applicant’s treatment program should include a return to his pre-accident level of function and abilities. I find that a functional ability evaluation would be reasonable and necessary based on the applicant’s continuous reports of physical pain and limitations to achieve this goal.
87I give little weight to the reports of Dr. Ladak, psychologist, and the in-home assessment report of Ms. Lee, occupational therapist, to assess the reasonableness and necessity of this treatment, as the treatment plan for a functional abilities assessment was not before them.
88I find that the applicant has met his onus of demonstrating on a balance of probabilities that the treatment plan, dated May 30, 2022, is reasonable and necessary.
Award
89Under s. 10 of Reg. 664, the applicant may be entitled to an award of an amount up to 50 percent of the benefits and interest owed to him if I find that the respondent unreasonably withheld or delayed payments.
90The applicant submits that he is entitled to an award because the respondent failed to properly consider the applicant’s pre-existing symptoms as barriers to recovery despite consistent evidence. As a result, the respondent has unreasonably withheld or delayed payment of the applicant’s accident benefits which has resulted in a further barrier to the applicant’s recovery. In addition, the applicant submits that despite an Order made in the CCRO dated September 11, 2023, the respondent has failed to produce copies of the adjuster’s log notes.
91The respondent submits that it diligently reviewed all evidence, conducted insurer examinations and clearly articulated reasons for its denials throughout the process, demonstrating reasonable and good faith actions.
92I find that the respondent was aware of the applicant’s pre-existing medical conditions from the CNRs of Dr. Shasha, family physician, the CNRs of Spinal Solution, the reports of Dr. Di Pasquale, orthopaedic surgeon, and the MRI and radiograph reports. It determined that the applicant’s injuries were in the MIG based on the conclusions of its IE assessors in the reports of Dr. Marchuk, physiatrist, dated April 23, 2021 and September 27, 2021 and the report of Dr. Heitzner, physiatrist, dated October 12, 2023.
93The threshold for an award is high. However, I accept the applicant’s submission that the respondent ignored the pre-accident medical evidence before it. While the respondent was entitled to rely upon the reports of its medical assessors, I find that the IE reports ignored the pre-accident medical evidence and failed to provide a rationale or an analysis of this evidence in their reports. The respondent has an obligation to review the medical evidence before it and adjust its claim fairly. In ignoring the pre-accident medical evidence, the respondent did not fulfill its obligation and unreasonably withheld benefits to the applicant.
94I further find that the respondent did not comply with the CCRO Order dated September 11, 2023, by failing to produce its adjuster log notes. No explanation for this has been provided by the respondent in its submissions.
95In determining the quantum of a special award, the Tribunal has found that the following factors may be considered: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and (vii) the overall length of the delay (Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649.)
96In this case, not considering the applicant’s documented pre-existing conditions when determining his status under the MIG, provided a monetary advantage to the respondent. The conduct of ignoring medical evidence should be deterred. I have considered the amount of benefits withheld from the applicant, and the length of time that payment has been withheld. Without further information, I cannot comment on the applicant’s vulnerability or harm directed at him. I do not believe that the respondent’s behaviour attracts the full 50% maximum award allowable under Reg. 664. As I have found that the two treatment plans for chiropractic services and medical devices, dated February 24, 2021 and August 30, 2021 should have been approved based on the applicant’s injuries being outside of the MIG, the total of these treatment plans is $5,714.53. I find that $1,714.36 (30%) is an appropriate quantum for the award, plus interest pursuant to Reg. 664.
Interest
97Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is applicable on the benefits that I have determined are owing, if incurred.
ORDER
98For the reasons outlined above, I find:
i. The applicant’s accident-related injuries are outside of the MIG as he has a documented pre-existing condition that would prevent him from achieving maximal medical recovery under the MIG;
ii. The applicant is entitled to the chiropractic and medical devices, proposed by Spinal Solutions in the treatment plans dated February 24, 2021 and August 30, 2021;
iii. The applicant is not entitled to an attendant care assessment or psychological assessment, proposed by 2430307 Ontario Ltd, in the treatment plans dated April 6, 2022;
iv. The applicant is entitled to a functional ability assessment, proposed by 2430307 Ontario Ltd., in the treatment plan dated May 30, 2022;
v. The respondent is required to pay to an award pursuant to Reg. 664 in the amount of $1,714.36;
vi. The applicant is entitled to interest on overdue payments pursuant to s. 51 of the Schedule.
Released: December 20, 2024
Melanie Malach
Adjudicator