Citation: Knight v. Aviva General Insurance, 2024 ONLAT 22-000403/AABS

Licence Appeal Tribunal File Number: 22-000403/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:

Nicolette Knight

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Filipe Santos, Counsel

For the Respondent: Jonathan Charland, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Nicolette Knight (“the applicant”) was involved in an automobile accident on December 19, 2019, 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 Aviva General Insurance (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding with her claim for a non-earner benefit because she failed to submit an Election of Income Replacement Form (“OCF-10”)?

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 16, 2020 to December 19, 2021?

ii. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a SPECT scan proposed by Deena Rogozinski Therapy in a treatment plan/OCF-18 (“plan”) dated August 4, 2021?

iii. Is the applicant entitled to a medical benefit in the amount of $2,447.96 for physiotherapy services proposed by 101 Physio in a plan dated October 27, 2021?

iv. Is the applicant entitled to a medical benefit in the amount of $4,390.64 for cogmed cognitive training proposed by 101 Assessments in a plan dated March 1, 2022?

v. Is the applicant entitled to a medical benefit in the amount of $2,128.51 for an assessment of attendant care needs proposed by 101 Assessments in a plan dated March 1, 2022?

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

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

RESULT

4The applicant is barred from pursuing her claim for a non-earner benefit.

5The applicant is not entitled to the medical benefits in dispute, interest or an award.

ANALYSIS

Preliminary Issue

6Section 35(1) of the Schedule provides:

If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive.

7After the accident, the applicant indicated in her Application for Accident Benefits (OCF-1) that she was unable to return to work and other activities.

8A disability certificate completed by Dr. E. Garris, dated January 20, 2020 indicates that the applicant met the disability tests for both a non-earner benefit (“NEB”) and an income replacement benefit “(IRB”).

9By letter dated January 25, 2020 the respondent requested that the applicant complete an OCF-10 in order to elect between NEB and IRB as the disability certificate indicated that she was potentially eligible for both.

10The applicant admits that she has not submitted an OCF-10 indicating her election. She submits that due to her uncertainty regarding her ability to continue to work and persisting symptoms, she chose not to elect either benefit so as not to deny herself access to IRB in future should she find herself unable to work any longer due to her injuries.

11I find that the applicant’s failure to elect a specified benefit in accordance with s. 35(1) of the Schedule is fatal to her claim for the non-earner benefit in dispute. I agree with Vice-Chair McGee in A.H. v. Aviva Insurance Canada, 2021 CanLII 64233 (ON LAT): a completed OCF-10 is required for an application to be considered “complete” for the purpose of triggering the obligations set out in s. 36(4). In circumstances where an application indicates possible entitlement to more than one specified benefit, more is required than an OCF-1 and OCF-3 to complete the application: an OCF-10 is also required. The provisions of the Schedule must be read harmoniously. To accept the applicant’s submission that an OCF-10 is not required would render s. 35 meaningless. The Schedule is clear that the obligation to elect a specified benefit, where an election is necessary, rests with the applicant. See also Boateng v. Allstate Insurance Company of Canada, 2021 CanLII 35568 (ON LAT) and Alkhazov v. Aviva Insurance Company of Canada 2022 CanLII 84676 (ON LAT) where the Tribunal found that the applicant’s were barred from proceeding with the claim for a non-earner benefit for failure to provide an OCF-10. The applicant pointed to no authority in support of her position.

12The duty the Schedule imposes on insured persons to respond to an insurer’s Notice of Election within 30 days is not an onerous requirement. It is not open to an applicant to forego an election because she believes it to be prejudicial or against her interest and still pursue a specified benefit claim.

13I find that the applicant failed to complete her application for a non-earner benefit by failing to make the required election. She has not properly applied for the benefit, therefore the respondent did not have the opportunity to properly adjust the claim and pay or deny the benefit. The Tribunal lacks jurisdiction under s. 280 of the Insurance Act, RSO 1990, c. I.8. to adjudicate a claim over which there is no proper dispute. The applicant is barred from proceeding before the Tribunal with her claim for a non-earner benefit.

14To 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 he has suffered an impairment from the accident and that the benefit is reasonable and necessary as a result of the accident.

15There must be objective medical evidence demonstrating the causal connection between the accident and injuries giving rise to a claim for benefits. A treatment plan on its own does not prove that the benefits sought are reasonable and necessary.

16To establish the reasonableness and necessity of a benefit sought, the applicant should identify the goals of treatment plan, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

17The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

The SPECT scan is not reasonable and necessary

18The treatment plan was proposed by Deena Rogozinsky, an occupational therapist, and indicates that the plan is reasonable and necessary for Criteria 4 for catastrophic impairment. However, there is no indication that the applicant was seeking a catastrophic impairment designation. There is no evidence that the SPECT scan would provide any therapeutic benefit or assist in the applicant’s recovery.

19The applicant submits that SPECT scan evidence is valid and has been admitted in proceedings to support findings of specialists related to psychiatric or neurological conditions. However, the applicant fails to direct me to any such proceedings or offer any case law in support of this submission. The respondent, however, submits that SPECT evidence has been found inadmissible by the Ontario Superior Court because it failed to satisfy the reliable foundation test for novel scientific evidence (Meade v. Hussein 2021 ONSC 7850 (“Meade”)). As noted by Justice Bale, none of the neurologists at Sunnybrook Hospital, where the plaintiff in that case was seen, support the use of SPECT to diagnose traumatic brain injuries. I find the decision persuasive authority that the proposed SPECT scan is not reasonable or necessary.

20The applicant submits that the SPECT scan was ordered in conjunction with assessments to support the applicant’s claim that she had suffered a head injury, catastrophic or otherwise. The neurology report of Dr. Basile, relied upon by the applicant to support the need for the SPECT scan, is not persuasive. It was conducted virtually, relied on the applicant’s self-reported symptoms, and it does not appear that Dr. Basile considered the negative CT scan report that had been ordered by the family doctor. Further, the family doctor noted on December 22, 2021 that the SPECT scan test would not alter their recommendations.

21Accordingly, I find that the bulk of the evidence does not support that the SPECT scan was reasonable or necessary as a result of the applicant’s injuries.

The plan for physiotherapy services is not reasonable and necessary

22Dr. Bill Nikolis, chiropractor, submitted the plan dated October 27, 2021 proposing a further fourteen sessions of physiotherapy, and seven sessions each of acupuncture and massage therapy. The doctor noted her injuries, including issues with her head, neck, low back, shoulders, and right knee.

23The goals of the treatment plans in dispute are pain reduction, increased range of motion, and a return to normal activities. Treatment plans alone are insufficient to establish entitlement. Objective supporting evidence is needed to show that the treatment plans are reasonable and necessary. The applicant submits that she was complaining to her family doctor of constant pain, particularly neck pain, at the time of the treatment plan. However, the family doctor’s records document at least 10 encounters between March 2021 and the time of the treatment plan, and virtually none of the reported issues are mentioned. Further, the complaints of neck pain documented by the family doctor, contemporaneous with the treatment plan in dispute, related to a subsequent car accident that occurred on October 19, 2021. Moreover, the family physician makes no recommendation for physiotherapy in respect of these complaints, or at all in 2021 or thereafter.

24Dr. Alborz Oshidari, a physical medicine and rehabilitation specialist, examined the applicant and noted in his report dated December 21, 2021, that the applicant had extensive treatment for more than 18 months without any long-term benefits. He found that she had achieved maximum medical recovery from the treatment she had received to date, and repeating the same treatment would not assist her.

25Having considered the evidence before me, I am not persuaded that the treatment plan is reasonable or necessary.

The plan for cogmed cognitive training is not reasonable and necessary

26Dr. Ilya Gladshteyn, psychologist, submitted the plan dated March 1, 2022 proposing cognitive treatment to improve her attention and poor working memory and citing the diagnoses of post-concussive syndrome and mild cognitive disorder.

27The applicant submits that the diagnoses in Dr. Basile’s neurological assessment report of November 27, 2020, as well as the subsequent report of Dr. Gladshteyn in which he diagnosed a major cognitive disorder, support the reasonableness and necessity of the proposed treatment.

28As noted above I found Dr. Basile’s report unpersuasive. Similarly, I am not persuaded that Dr. Gladshteyn’s diagnosis of major cognitive disorder is supported by the evidence. The assessor appears to have ignored his own test results. The applicant was administered the Cambridge Brain Sciences Cognitive Assessment Batter, which consists of twelve subtests. The applicant performed in the average range in 11 of the 12 subtests, as noted at pages 10 through 12 of the report. The applicant performed in the impaired range on a measure of response inhibition – the ability to concentrate on relevant information in order to make a correct response despite interference. Yet under the “clinical formulation” section where Dr. Gladshteyn indicates his diagnosis, he incorrectly indicates that she scored in the impaired ranges of several subtests, including episodic memory, deductive reasoning, verbal reasoning and verbal short-term memory when in fact her scores were in the average range. Accordingly, I give this report little weight.

29I prefer the IE report of Dr. Shayna Nussbaum, neuropsychologist, dated January 12, 2023. Dr. Nussbaum completed a comprehensive file review, cognitive testing, and clinical examination of the applicant and concluded that no neurocognitive diagnosis was warranted, that her cognitive complaints were secondary to psychological factors, and that the treatment goals should be achieved through psychotherapy (for which she has been approved) rather than cognitive training.

30Having considered the evidence before me, I am not persuaded that the plan for cognitive training is reasonable and necessary.

The assessment of attendant care needs is not reasonable or necessary

31The plan dated March 1, 2022 proposed an attendant care assessment by Remik Zakrzewski, occupational therapist.

32The respondent denied the treatment plan by letter dated March 21, 2022, on the basis of a prior IE report of Dr. Oshidari, dated December 21, 2021. The applicant alleges she never attended an assessment with Dr. Oshidari on December 21, 2021. Perhaps that is because the assessment actually took place on December 9, 2021, while the report is dated December 21, 2021.

33In any event, I agree with the respondent and find that the proposed attendant care assessment is not reasonable and necessary. The applicant reported to Dr. Oshidari that she was independent with her activities of daily living. The plan also notes that during her evaluation with Dr. Basile, she reported that she was “fully independent at this time with self care” and that it took her longer to complete household chores. This is generally consistent with her reports to Dr. Nussbaum that she remained independent with her self-care and hygiene, childcare, and was working part time as a realtor and caring for horses. I am not persuaded that the medical records support an impairment that would require an attendant or aide to assist the applicant with completion of her self-care or activities of daily living.

34The applicant has not met her burden to prove that the plan for an attendant care assessment is reasonable or necessary.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are overdue, therefore no interest is payable.

Award

36The 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. Given that I have not found any benefits payable to the applicant none were unreasonably withheld, and no further award is payable.

ORDER

37The applicant is barred from pursuing her claim for a non-earner benefit.

38The applicant is not entitled to the medical benefits in dispute.

39No interest or award is payable.

40The application is dismissed.