Citation: [U.R] v. Cooperators General Insurance Co., 2024 ONLAT 21-012191/AABS

Licence Appeal Tribunal File Number: 21-012191/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:

[U. R] By her litigation guardian, [G.V]

Applicant

and

Cooperators General Insurance Co.

Respondent

DECISION

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Erin Neal, Counsel

For the Respondent: Jamie R. Pollack, Counsel

HEARD: By way of written submissions

OVERVIEW

1[U.R], the applicant, was involved in an automobile accident on January 4, 2017, 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, Cooperator’s General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2I find the notices of denial and explanation of benefits dated December 3, 2020, December 23, 2020, February 24, 2021, May 26, 2021, November 29, 2021, and July 12, 2022, are compliant with s.38(8) of the Schedule.

3Under s. 38(8) of the Schedule, the insurer must provide the insured person with notice of what goods, services, assessments, and examinations set out in the treatment plan, the insurer will approve or refuse to pay for. The notice must include an explanation of the medical and other reasons why the insurer considers any proposed goods, services, assessments and examinations, or the cost of them, not to be reasonable or necessary. This notice must be provided within 10 (ten) business days after the respondent receives a treatment plan.

4Section 38(8) specifies business days, which under section 3(1) are defined to exclude weekends and most statutory holidays. Having counted the business days from the date of submission of the claims, to the notices of denial for the disputed claims, I find that the respondent provided timely notice under section 38(8) of the Schedule with regard to each of the notices of denial, submitted by the applicant as outside the timing required by section 38(8): December 3, 2020, December 23, 2020, May 26, 2021, November 29, 2021, and July 12, 2022. As stated, section 38(8) of the Schedule requires the insurer to notify the insured person within ten (10) days whether the insurer will pay for the goods and services claimed.

5Under s. 38(11) of the Schedule, if the insurer fails to give a notice in accordance with section 38(8), it 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 insurer received the proposed OCF-18 and ending on the day the insurer gives the notice required by section 38(8). As stated, I find that each of the notices of denial described as non-compliant by the applicant dated December 3, 2020, December 23, 2020, May 26, 2021, November 29, 2021, and July 12, 2022, are compliant with s.38(8) of the Schedule and they were received within the requisite period of 10 days business days as set forth in section 38(8) of the Schedule. The applicant erred in counting calendar days, instead of business days, in the calculation of the respondent’s response time to the claims. Having counted the business days from the date of submission of the claims to the notice of denial for the disputed claims, I find that the respondent provided timely notice under section 38(8) of the Schedule.

6Pursuant to the Divisional Court decision in Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000 (“Catic”), treatment must be incurred to be payable. In Catic, the court held that in cases where a deficient notice was subsequently corrected with proper notice, only those goods and services that are incurred during a “shall-pay” period, by the applicant, are payable by an insurer.

Similarly, an individual may be entitled to funding for a treatment plan because the insurer’s denial was noncompliant with section 38 and was never cured by the time the Tribunal decided the dispute. In that situation, the insurer cannot cure their defective notice and shall pay for the treatment plan in accordance with section 38(11), but it is not yet liable to pay for the treatment plan until it receives the invoice demonstrating that the treatment plan has since been incurred, (see Aviva v. Suarez, 2021 ONSC 6200 at paras. 37 to 39)

7The applicant submits that the in-person insurance examination (“IE”) by Dr. [R.C], General Practitioner on April 18, 2022 (report dated May 2, 2022), took place over two years following the denial letter dated December 3, 2020. The applicant contends that the denial letter of December 3, 2020, is deficient. The respondent submits that the notice is sufficient as it identifies the treatment plan and makes a s. 33(1)(1) request for the clinical notes and records (CNRs) of the family doctor, Dr. [R.K], for the period from July 2018 to the time of the notice of denial, in addition to making a request for decoded OHIP summaries. The applicant was required to furnish the CNRs by December 18, 2020, however, subsequent correspondence and notices of denial, addressed the failure to supply the medical records requested on December 23, 2020, February 24, 2021, and on May 26, 2021. I find that the notices of denial described as non-compliant by the applicant, were making section 33 (1)(1) requests which were not responded to by the applicant on December 3, 2020, December 23, 2020, February 24, 2021, and on May 26, 2021. The medical information requested relates the applicant’s medical condition, diagnosis and function, in addition, prognosis for recovery.

8I agree with the respondent respecting the utility of the guidance offered by the Former Executive Chair’s statements in T.F v. Peel Mutual Insurance Company, since the denial letters at issue dated on December 3, 2020, December 23, 2020, February 24, 2021, and on May 26, 2021, identify the information regarding the insured’s condition that the insurer does not have available, but which is required for the determination of the matter at issue. The letters dated December 3, 2020, December 23, 2020, February 24, 2021, and May 26, 2021, reference the findings of Dr. Jean Sarto’s October 30, 2018, report, and the respondent is making a reasonable request for updated medical information which is not referenced as received until the notice of denial dated November 23, 2021.

9In the denial letters dated December 3, 2020, December 23, 2020, February 24, 2021, May 26, 2021, it is stated that the clinical notes and records (CNR’s) of Dr [R.K], and decoded OHIP summaries, had not been received for the requested period and were yet required. I do not agree that the notices of denial were deficient in the EOBs dated December 3, 2020, December 23, 2020, February 24, 2021, May 26, 2021, November 29, 2021, and July 12, 2022, for the reasons described.

10By the time of the denial letter dated November 29, 2021, the applicant had submitted the CNRs of Dr. [R.K], that indicated the applicant’s health condition was well-managed but that no evidence was supplied with respect to the applicant’s condition before the accident. By the date of July 12, 2022, Dr [C] had completed his IE of the applicant regarding pre-existing conditions and stated that from a musculoskeletal perspective the applicant appeared to be at the baseline level of functioning with minimal ongoing impairments related to the accident. As stated, I find the notices in relation to the denial letters dated December 3, 2020, December 23, 2020, February 24, 2021, May 26, 2021, November 29, 2021, and July 12, 2022, are not deficient pursuant to section 38(8). I find that the notices were provided in accordance with section 38 (8).

ISSUES

11The issues to be decided in the hearing are:

1. Is the applicant entitled to $4,289.41 for physiotherapy services, recommended by Ajax Rehabilitation Centre in a treatment plan (OCF-18) dated November 25, 2020?
2. Is the applicant entitled to $2,200.00 for a chronic pain assessment, recommended by Oshawa Physiotherapy and Rehabilitation in a treatment plan (OCF-18) dated December 11, 2020?
3. Is the applicant entitled to $4,882.99 for physiotherapy services, recommended by Ajax Rehabilitation Centre in a treatment plan (OCF-18) dated February 7, 2021?
4. Is the applicant entitled to $4,569.44 for occupational therapy services, recommended by Innovative Occupational Therapy Services in a treatment plan (OCF-18) dated May 12, 2021?
5. Is the applicant entitled to $5,200.00 for CAT assessments, recommended by HAL Disability in a treatment plan (OCF-18) dated November 9, 2021?
6. Is the applicant entitled to $6,634.35 for occupational therapy services, recommended by Innovative Occupational Therapy Services in a treatment plan (OCF-18) dated November 16, 2021?
7. Is the applicant entitled to $3,646.50 for CAT assessments, recommended by HAL Disability in a treatment plan (OCF-18) dated July 12, 2022?
8. Is the respondent liable for an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
9. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

12The applicant is not entitled to $4,289.41 for physiotherapy services, proposed in a treatment plan (OCF-18) dated November 25, 2020.

13The applicant is not entitled to the $2,200.00 for a chronic pain assessment, proposed in a treatment plan (OCF-18) dated December 11, 2020.

14The applicant is not entitled to $4,882.99 for physiotherapy services proposed in a treatment plan (OCF-18) dated February 7, 2021.

15The applicant is not entitled to $4,569.44 for occupational therapy services proposed in a treatment plan (OCF-18) dated May 12, 2021.

16The applicant is not entitled to $5,200.00 for CAT assessments, proposed in a treatment plan (OCF-18) dated November 9, 2021.

17The applicant is not entitled to $6,634.35 for occupational therapy services proposed in a treatment plan (OCF-18) dated November 16, 2021.

18The applicant is not entitled to $3,646.50 for CAT assessments, proposed in a treatment plan (OCF-18) dated July 12, 2022.

19The applicant is not entitled to an award under Regulation 664 because the respondent did not unreasonably withhold or delay payments to the applicant.

20The applicant is not entitled to interest on overdue payments of benefits pursuant to s. 51 of the Schedule since there are no overdue payments.

ANALYSIS

21I find for reasons which follow that the treatment plans for physiotherapy services dated November 25, 2020, and February 7, 2021, are neither reasonable nor necessary. I find that the IE of Dr. [R.C] shows that the applicant has reached maximal medical recovery from her musculoskeletal condition and her injuries caused by the accident. I agree with the respondent that the totality of the medical records, in particular the CNR’s of the applicant’s family physician, Dr [R.K], indicate that the applicant and her family did not report any physical or musculoskeletal pain or other issues caused by the accident. The respondent relies on the decoded OHIP summary which confirms that the applicant has required little if any medical attention apart from addressing chronic health conditions unrelated to the accident.

22I find for reasons that follow that the applicant has not provided sufficient evidence that the two treatment plans recommending physiotherapy treatment are reasonable and necessary. To 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 the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

23The Tribunal has held that treatment plans by themselves do not prove that proposed treatments are reasonable and necessary. There should be corroborating contemporaneous and objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment: See SY and Aviva, 2017 CanLII 63263 (ON LAT), at paragraph 19.

24The applicant is entitled to the medical and rehabilitation benefits recommended by a treatment plan only in the event that the accident caused the impairments to which the plan is directed. Sabadash v. State Farm et al., 2019 ONSC 1121 and Agyapong v. Jevco Insurance Co., 2018 ONSC 878 confirm that the default test for determining causation in accident benefit cases is the “but for” test. In this case, the parties agree that the applicant bears the onus of establishing, on a balance of probabilities, that she has met the “but for” test.

25The treatment plan submitted on November 25, 2020, proposed by Physiotherapist Muzammil Ansari includes manipulation/mobilization of spinal or extremity joints; aerobic conditioning and functional retraining; cryotherapy; heat therapy; myofascial/soft tissue therapies; passive modality treatments and education. The applicant submits that the treatment was partially incurred in the amount of $798.00. A further treatment plan was proposed by physiotherapist, Praveen Mandve, with the goals of the plan being pain reduction, increase in strength, increase in range of motion, and a return to the activities of normal living. The plan recommended 20 sessions of physical rehabilitation.

26The applicant is an eighty-six-year-old woman who, Dr. Andrew Gomez-Vargas describes as having a pre-accident medical history including diabetes, hypertension, cataract surgery and dyslipidemia. The applicant submits that the treatment plans in dispute are reasonable and necessary because, beyond her physical injuries requiring physiotherapy services, that the applicant experienced a brain injury, with subsequent headaches, lower back pain, six fractured ribs on the right side, pneumothorax, hematoma, and sciatic pain in her lower buttocks which the applicant submits would benefit from physiotherapy treatment.

27The applicant submits that the IE reports of Dr. [R.C] support that the applicant has ongoing issues of low back/buttocks pain; left calf pain and memory issues caused by the accident. Further the report of Dr. Andrew Gomez-Vargas diagnoses a traumatic brain injury because of the accident, however, I place less weight on the diagnosis since Dr Gomez-Vargas did not reference the CT scan of the applicant’s brain dated November 6, 2015, showing bilateral frontal atrophy before the accident. The CT scan on November 6, 2015, was requested by the family physician Dr [M.G] by reason of the applicant’s issues with cognitive decline and memory problems.

28The respondent submits that it is has approved all reasonable and necessary medical treatment on behalf of the applicant, having paid $24,813.78 in medical and rehabilitation benefits to the date of submissions. The respondent submits that the proposed treatment plans are not reasonable and necessary based on a complete consideration of the medical records and considering the IEs from Dr. Sacro, physiatrist, and Dr. [C], general practitioner. The respondent submits that sufficient medical and rehabilitation treatment has been provided post-accident to return the applicant to her pre-accident level of function and maximal recovery.

29The applicant has not met her burden to show with medical evidence that her accident-related injuries include a brain injury leading to cognitive impairments or that the subject physiotherapy treatment plans, proposed are reasonable and necessary. As stated, the evidence shows that the applicant suffered from memory impairment and cognitive impairment before the accident. A CT scan of the applicant was completed on November 6, 2015, following the applicant complaining to Dr. [G] regarding memory impairment. The scan, as stated, revealed bilateral frontal atrophy. Dr Andrew Gomez-Vargas, Neurologist, reported on October 7, 2017, that in his opinion the applicant’s cognitive deficits are consistent with a diagnosis of frontal lobe dysfunction. He opined that the applicant’s cognition was an ongoing issue.

30The respondent submits that the applicant is an elderly woman in frail health pre-accident with a debilitating, cognitive decline demonstrated to be the case in the noted CT scan of November 6, 2015. There is negligible pre-accident medical information pertaining to the applicant’s condition in the CNRs, and what few CNRs exist are unreadable, written in long hand by Dr. [M.G], family physician. The respondent relies on the totality of the medical records in particular the CNR’s of the family physician Dr [R.K], which indicate that the applicant and her family did not report any physical or musculoskeletal pain or other issues as a result of the accident. In addition, the respondent relies on the decoded OHIP summary which confirms that the applicant has required little if any medical attention apart from addressing chronic health conditions unrelated to the accident.

31The applicant submits that Dr. Allan Eckhaus verified that the applicant experienced a brain injury because of the accident. I disagree having reviewed the report. Following the accident, on January 6, 2017, Dr. Allan Eckhaus examined the applicant. He states in his report that the applicant sustained injuries to her chest including her pneumothorax, which were treated by the general surgery team, together with rib fractures. Dr. Echhaus was consulted respecting the CT brain scan result following the accident which showed right forehead or frontal bone extracranial hematoma. Dr. Eckhaus did not describe a brain injury as a result of the accident. He noted no bony abnormality in the scan nor fluid in the sinus area; in addition, the orbital, medial, lateral, superior and inferior areas were intact. Dr. Echhaus described a low index of suspicion for injury. The extent of the injury showing on the CT scan taken post-accident demonstrated no bone injury, only soft tissue injury.

32As stated, the applicant’s cognitive impairments were verified by the medical evidence to be pre-existing. There is insufficient medical evidence that the applicant’s pre-existing cognitive impairment was affected by the accident to any extent. The CT scan taken on the day of the accident, showed no intracranial abnormality; no evidence of hemorrhage; no fracture or dislocation. Dr. Eckhaus followed up with the applicant on February 7, 2017, describing in his report that the right forehead hematoma had completely resolved with the applicant’s right eye much improved, demonstrating normal extraocular movements.

33Dr. Jean Sarto’s physiatry medical examination on September 26, 2018, opined that the applicant’s physical assessment was grossly normal without him being able to identify any significant musculoskeletal pathology on examination. Dr. [R.C], General Practitioner, examined the applicant on April 18, 2022, with the applicant describing lower back pain, buttocks pain, left calf pain and issues with her memory. Although the applicant was taking medication for a variety of medical issues, the medication did not include pain prescriptions. The applicant’s examination by Dr. [C] was within normal limits although she reported some mild tenderness in her gluteal region. When the applicant met with General Surgeon, Dr. George Xeroulisher, her injuries to her pneumothorax had resolved and she had good pain control from her five fractured ribs. The applicant described to Dr. Xeroulisher taking non-prescription Tylenol to address pain when it arose.

34Dr. [C] found that the applicant’s musculoskeletal condition was a direct result of the accident. He opined that the extent of the applicant’s accident-related impairments was limited to a gluteal strain from a musculoskeletal perspective. He opined at the time of his report, that the applicant’s ability to perform activities of daily living had reached pre-accident levels (“baseline functioning”), and that the applicant had minimal ongoing impairments because of the accident. He opined that by reason of the medical and rehabilitation benefits provided by the respondent, that the applicant had received improvements to her physical impairments caused by the accident that helped her reach a maximal recovery.

35I find based on the medical evidence described that the applicant has not met her burden to show that the two treatment plans proposing physiotherapy services are reasonable and necessary. Dr. [C] stated that by reason of the applicant reaching maximal medical recovery, that the treatment plan for physiotherapy services dated November 25, 2020, in the amount of $4,289.41, and the treatment plan dated February 7, 2021, in the amount of $4,882.99, were both neither reasonable nor necessary.

36As stated, considering the medical evidence provided by the applicant, including the CNR’s of the family physician Dr [R.K], which indicate that the applicant and her family did not report any physical or musculoskeletal pain or other medical issues as a result of the accident, that the applicant has failed to meet her burden with sufficient evidence to show that the two treatment plans in dispute proposing physiotherapy services, are reasonable nor necessary.

37I find that the treatment plans recommending occupational therapy services to address the applicant’s injuries sustained in the accident are neither reasonable nor necessary. Following a review of the medical evidence and occupational therapy evidence referenced and submitted by the applicant, I find that the IE of Dr. [R.C] shows that the applicant has reached maximal medical recovery from the injuries caused by the accident. I find that the applicant has not provided sufficient evidence that the two treatment plans recommending occupational therapy services are reasonable and necessary.

38As earlier stated, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits in dispute for occupational therapy services, are 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.

39The applicant submits that the treatment plans that recommend occupational therapy rehabilitation treatment are reasonable and necessary relying on the evidence of Dr. Tehjan Getahun in his file review dated July 16, 2022, that says the applicant experienced a significant deterioration in her functional abilities as a result of the accident. In addition, the applicant relies on the report by Sheila Don, OT, dated November 22, 2021, that says that the applicant sustained cognitive and physical impairments caused by the accident and she will benefit from Registered Social Worker (RSW), services. The applicant further relies on the OT assessment of Susan Szainwald, dated January 23, 2017, which states that before the accident the applicant reported being independent in all her self-care tasks and that she was able to complete her housekeeping tasks. The respondent submits that the medical evidence provided in the document review and examination of the applicant by Dr. [C], is to the effect that neither of the treatment plans that recommend occupational therapy services are reasonable and necessary.

40The OT assessment prepared by Susan Szainwald, states that the purpose of the assessment is to determine the need for attendant care and that Susan Szainwald had no documentation available for review. The assessment findings are based on subjective and objective information obtained during and in the course of the assessment. Because the report does not address the applicant’s pre-accident condition and the issue of causation, and in addition considering the lack of medical document review, the report by Susan Szainwald is of limited probative value in the determination of the treatment plans in dispute. The report of Shannon Duane and Sheila Don, dated November 22, 2021, describe why the applicant would benefit from occupational therapy but it does not address whether the occupational therapy would be addressing accident-related impairments. The report does not address the applicant’s pre-accident condition, nor the question of which impairments were aggravated or caused by the accident. Likewise, although the file review by Dr. Tehjan Getahun dated July 16, 2022, mentions consideration of the CNRs of Dr. M. [G] and OHIP summaries from January 4, 2016, to January 21, 2022, it does not address which conditions were caused by or aggravated by the accident.

41I find that the medical evidence provided by the applicant is not sufficient to meet her burden to show the treatment plans are reasonable and necessary. The opinions offered by Dr. T Getahun, OT Sheila Don, and Susan Szainwald, are less probative and reliable than the findings of Dr. [R.C] based on the absence of corroborating evidence showing the applicant’s pre-accident condition and function. I find that the medical evidence provided by the applicant is not sufficient to meet the applicant’s burden to show that the treatment plans for occupational therapy services are reasonable and necessary. As described, there are no legible pre-accident CNRs available from the applicant’s family physician [M.G] with the exception of the noted CT scan showing frontal brain atrophy. The case conference report and order requested pre-accident CNRs from the applicant’s general practitioner (GP) and specialists within sixty days of the case conference. I find that the objective medical evidence provided by the applicant is not sufficient to meet the applicant’s burden to show that the treatment plans for occupational therapy services are reasonable and necessary.

42I find that the applicant has failed to address the issue of causation with medical evidence to meet the applicant’s burden sufficiently showing that the applicant’s cognitive decline and other medical issues were in any way aggravated by the accident. I find that the treatment plans recommending occupational therapy services, to address the applicant’s injuries sustained in the accident are neither reasonable nor necessary showing that the identified goals of treatment would be met to a reasonable degree. The applicant has not shown how the identified goals of treatment would be met to a reasonable degree. There is insufficient medical or other evidence that the applicant’s self-care and caregiving activities have changed to any measurable extent following the accident which would demonstrate that the treatment plans for occupational therapy services are reasonable and necessary.

43There is insufficient evidence following a review of the medical evidence and occupational therapy evidence referenced and submitted by the applicant for the applicant to meet her burden. I find that the IE of Dr. [R.C] shows that the applicant has reached maximal medical recovery from the injuries caused by the accident. I find that the applicant has not provided sufficient evidence that the two treatment plans recommending occupational therapy services are reasonable and necessary.

44I find that the treatment plans recommending two separate catastrophic impairment assessments and a chronic pain assessment to address the applicant’s injuries sustained in the accident are neither reasonable nor necessary. I find that the IE by Dr. [R.C] shows that the applicant has reached maximal medical recovery in relation to the injuries caused by the accident. I find that the applicant has not provided sufficient evidence that the two treatment plans recommending catastrophic impairment assessments and a chronic pain assessment are reasonable and necessary. By reason of the insufficiency of pre-accident medical evidence capable of addressing causation, I find the opinions on the basis of post-accident examinations, and the CNRs of the family physician Dr [R.K], to be persuasive evidence.

45Altaf Khimji, physiotherapist proposed a chronic pain assessment to identify barriers to recovery and treatment options for the applicant to address her injuries and sequelae listed in part 6 including headache, sprain/ strain of cervical spine, thoracic spine and lumbar spine, of knees and fracture to ribs. Dahir Hashi, Chiropractor, and Orthopaedic Surgeon, Dr. Tajedin Getahun, proposed a Catastrophic Determination Assessment in the amount of $3,646.50 to determine the threshold of catastrophic impairment in relation to the injuries and sequelae to the applicant listed in part six including contusion of the hips, multiple fractures of ribs, cervical disc disorders, anxiety disorders, mild cognitive disorder, chronic post-traumatic headache and other chronic pain.

46Sheila Don, Occupational Therapist proposed in a treatment plan in the amount of $5200.00, dated November 9, 2021, stating in part six of the plan, that the applicant experiences low back pain, headache, persistent mood disorders, malaise, fatigue, anxiety disorder and depression caused by the accident, and that the treatment plan has as its goals, returning the applicant to normal living activities.

47The EOB dated December 23, 2020, describes that based on the opinion of Dr. Jean Sarto, which is dated October 30, 2018, that from a musculoskeletal perspective the applicant’s structural pathology was unremarkable including symptomatic areas including bilateral arms, bilateral buttocks, right forehead suggestive of soft tissue injury. For that reason, Dr. Jean Sarto opines that the chronic pain assessment in the amount of $2200.00 is not reasonable and necessary as the identified goals of treatment in the plan would not be met to a reasonable degree and there is insufficient objective medical evidence that the proposed chronic pain assessment is reasonable and necessary. I find the opinion of Dr. Jean Sarto, dated October 30, 2018, and his medical opinion that a chronic pain assessment was not reasonable and necessary based on insufficient objective evidence to be corroborated in the more recent IE report of Dr. [R.C] dated May 2, 2022.

48Dr. Sarto examined the applicant on September 26, 2018, noting that from a physical perspective he did not find any significant musculoskeletal structural pathology. The applicant’s cervical, lumbar, and thoracic spine were all showing a normal range of motion.

49The explanation of benefits (EOB) dated July 12, 2022, states, based on the IE report of Dr [C] dated May 2, 2022, that the applicant’s impairments were limited to a gluteal strain from a musculoskeletal perspective. Based on the lack of CNRs pre-accident, Dr [C] found that the applicant does not appear to have any pre-existing conditions related to musculoskeletal injuries and that the applicant had reached maximal medical recovery. Therefore, Dr. [C] opined that the treatment plan in the amount of $3,646.50, proposing a Catastrophic Determination Assessment is not reasonable and necessary.

50The explanation of benefits (EOB) dated November 23, 2021, references the clinical notes and records (CNRs) of the applicant’s family physician Dr. [R.K], and the assessment of Dr. Jean Sarco. Because of the absence of pre-accident medical information, which I have earlier addressed, the respondent states in the EOB that there is a requirement to address causation with sufficient objective medical information. Dr. Sarco examined the applicant noting that from a physical perspective he did not find any significant musculoskeletal structural pathology. Dr. Sarco found the applicant’s soft tissue injuries were unremarkable. The respondent relies on the totality of the medical records in particular the CNR’s of the family physician Dr [R.K], which indicate that the applicant and her family did not report any physical or musculoskeletal pain or other issues as a result of the accident. In addition, the respondent relies on the decoded OHIP summary which confirms that the applicant has required little if any medical attention apart from addressing chronic health conditions unrelated to the accident.

51The applicant submits that the three treatment plans are reasonable and necessary and she relies on the evidence of Dr. Tehjan Getahun in his file review dated July 16, 2022, to the effect that the applicant experienced a significant deterioration in her functional abilities as a result of the accident. In addition, the applicant relies on the report by Sheila Don, Occupational Therapist, dated November 22, 2021,that says that the applicant sustained cognitive and physical impairments caused by the accident which will benefit from RSW services. The applicant further relies on the occupational therapy assessment of Susan Szainwald, dated January 23, 2017, which states that before the accident the applicant reported being independent in all her self-care tasks and that she was able to complete her housekeeping tasks including grocery shopping.

52The occupational therapy assessment prepared by Susan Szainwald, states that the purpose of the assessment was to determine the need for attendant care and that no documentation was available for review. The assessment findings are based on subjective and objective information obtained during and in the course of the assessment. Because the report does not address the applicant’s pre-accident condition and the issue of causation, in addition by reason of the lack of a medical document review, the report is of limited probative value in the determination of the treatment plans in dispute. The report of Shannon Duane and Sheila Don, dated November 22, 2021, describes why the applicant would benefit from occupational therapy to support the applicant’s orientation and overall cognitive functioning but it does not address whether the occupational therapy would be addressing accident-related impairments. The report does not address the applicant’s pre-accident condition, nor the question of which impairments were aggravated or caused by the accident. Likewise, although for the purpose of the file review by Dr. Tehjan Getahun dated July 16, 2022, the appendix mentions consideration of the CNR’s of Dr [G], and OHIP summaries from January 4, 2016, to January 21, 2022, it does not address which conditions were caused by or aggravated by the accident.

53I find that the medical evidence provided by the applicant is not sufficient to meet her burden to show that the three treatment plans are reasonable and necessary. The opinions offered by Orthopaedic Surgeon, Dr. T Getahun, Occupational Therapist Sheila Don, and OT Susan Szainwald, are less probative and reliable than the findings of Dr. [R.C] based on the absence of corroborating evidence showing the applicant’s pre-accident condition and function. As stated, there are no legible pre-accident CNRs available from the applicant’s family physician with the exception of the noted CT scan showing frontal brain atrophy. Otherwise, the reports of the applicant’s pre-accident condition and function are provided by the reporting of the applicant, the applicant’s son, and husband.

54The respondent submits that the treatment plan proposing a catastrophic impairment assessment dated July 19, 2022, in the amount of $3646.50 cannot be ordered payable pursuant to section 20(1)(a) of the Schedule since no medical benefits are payable 260 weeks after the accident unless the person is found to have sustained a catastrophic impairment. The accident took place on January 4, 2017, therefore the expenses relating to the relevant treatment plan dated July 19, 2022, fall outside the period for which benefits maybe claimed and can not be payable to the applicant as she has not sustained catastrophic impairment. The applicant did not offer any reply submissions that s. 20(1)(2)(b) applies in this case.

55I find that the applicant has failed to sufficiently address the issue of causation with medical evidence to meet the applicant’s burden showing that the applicant’s cognitive decline and other medical issues were in any way aggravated by the accident. Therefore, I find that the three treatment plans recommending catastrophic impairment assessments and a chronic pain assessment are neither reasonable nor necessary to address the applicant’s injuries sustained in the accident. I find that the IE of Dr. [R.C] shows that the applicant has reached maximal medical recovery of the injuries caused by the accident. I find that the applicant has not provided sufficient evidence that the three treatment plans recommending catastrophic impairment assessments and a chronic pain assessment are reasonable and necessary.

Interest

56Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed in relation to the treatment plans in dispute, the applicant is not entitled to interest pursuant to s. 51 of the Schedule in relation to the treatment plans.

Award

57The applicant sought an award under s. 10 of Reg. 664. Under s. 10, 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 respondent is not liable to pay an award under s. 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.

ORDER

58The applicant is not entitled to any of the benefits claimed.

59The respondent is not liable for an award under Regulation 664 because the respondent did not unreasonably withhold or delay payments to the applicant.

60The applicant is not entitled to interest on overdue payments of benefits pursuant to s. 51 of the Schedule since there are no overdue payments.

61The application is dismissed.

Released: February 23, 2024

__________________________

Janet Rowsell

Adjudicator