Citation: Thorn v. Northbridge Commercial Insurance Corporation, 2024 ONLAT 22-002159/AABS

Licence Appeal Tribunal File Number: 22-002159/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:

Will David James Thorn

Applicant

and

Northbridge Commercial Insurance Corporation

Respondent

DECISION

ADJUDICATOR:

Tami Cogan

APPEARANCES:

For the Applicant:

Robert Bernstein, Counsel

For the Respondent:

Jennifer Singh, Counsel

HEARD: In Writing

OVERVIEW

1William David James Thorn, the Applicant, was involved in an automobile accident on December 17, 2020, 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, Northbridge Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

Preliminary Issue

2The preliminary issue to be decided is whether a s. 10 award pursuant to Regulation 664 may be added as an issue in dispute.

Preliminary Issue Result

3The s. 10 award pursuant to Regulation 664 will be added as an issue in dispute.

Substantive Issues

4The substantive issues to be decided are:

1. Is the Applicant entitled to an income replacement benefit (“IRB”) in the amount of $159.21 per week from December 22, 2021, to date and ongoing?

2. Is the Applicant entitled to attendant care benefits (“ACB”) in the amount of $2,012.78 per month from June 8, 2021, to date and ongoing?

3. Is the Applicant entitled to chiropractic services in the amount of $2,630.00, proposed by Koch & Associates Spine Centre in a treatment plan submitted April 5, 2021, and denied on June 4, 2021?

4. Is the Applicant entitled to the psychological services proposed by Dr. William Parkinson, as follows:

(i) $792.00 ($3,623.27 less $2,831.27 approved) in a treatment plan submitted on February 3, 2021, and denied on May 7, 2021;

(ii) $1,188.00 ($3,755.27 less $2,567.27 approved) in a treatment plan submitted on June 30, 2021, and denied on December 8, 2021; and

(iii) $3,623.27 in a treatment plan submitted on January 21, 2022, and denied on February 7, 2022;

(iv) $2,094.54 in a treatment plan submitted on May 20, 2022, and denied on May 24, 2022; and

(v) $3,677.17 in a treatment plan submitted on June 9, 2022, and denied on June 14, 2022?

5. Is the Applicant entitled to the occupational therapy services proposed by Ross Rehabilitation, as follows:

(i) $2,545.95 in a treatment plan submitted on June 11, 2021, and denied on June 21, 2021; and

(ii) $583.64 ($2,279.89 less $1,696.25 approved) in a treatment plan submitted on June 10, 2021, and denied on September 8, 2021?

6. Is the Applicant entitled to interest on any overdue payment of benefits?

7. Is the Respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

Substantive Issues Result

5I find:

1. The Applicant is not entitled to IRB, as he has not provided the Respondent with information requested for the calculation of entitlement to IRB.

2. The Applicant is not entitled to ACB.

3. The Applicant is entitled to the treatment plan for chiropractic services in dispute.

4. The Applicant is entitled to the treatment plans for psychological treatment in dispute.

5. The Applicant is not entitled to the treatment plans for occupational therapy.

6. Interest is payable pursuant to s. 51 of the Schedule on any overdue payments.

7. The Applicant is not entitled to an award pursuant to s. 10 of Regulation 664.

PROCEDURAL ISSUE

6The letter of Dr. Parkinson dated September 1, 2023, will be allowed as evidence.

7The Respondent submits the Applicant has relied on a letter from Dr. Parkinson dated September 1, 2023, which was submitted after the production deadlines and, in accordance with Rule 9.4, must therefore be excluded from evidence.

8The Applicant submits that Rule 9.4 states the document “may” not be relied on. The document at issue was not available because it did not exist at the time of the production deadlines. Both parties had late submissions and the Respondent did not raise an issue with any other late document, nor did it bring a motion prior to the hearing to have the documents excluded. The applicant submits that if this document is excluded, to be procedurally fair, the Respondent’s documents which were late filed should also be excluded. The Respondent has not made submissions on prejudice that would result if the document were included. The document should be allowed into evidence.

9I agree with the Applicant. Rule 9.4 allows the Tribunal to consider the circumstances of any noncompliance with disclosure, and in conjunction with Rule 3.1 allows the Tribunal to apply the Rules to facilitate a fair, open and accessible process. A party cannot claim noncompliance to dismiss evidence that is not favourable to its position, while at the same time ignoring its own noncompliance. Procedural fairness must flow both ways. The Respondent has not made any submissions as to how it would be prejudiced by the inclusion of the report. I am allowing the Applicant to rely on the letter of Dr. Parkinson dated September 1, 2023.

ANALYSIS

Preliminary Issue:

10The Applicant has made submissions on a s. 10 award and requests this be an added as an issue in dispute. The Respondent is not prejudiced by the addition of the issue as they have the opportunity to respond.

11The Respondent submits the issue of a s. 10 award is not properly before the Tribunal and should not be added as an issue in dispute.

12I have jurisdiction to add the issue of an award at any part of the proceeding. Further, in Waldock v. State Farm Mutual Automobile Insurance Company, 2019 ONSC 6105, the Divisional Court held at paragraph 49 that “a special award is always a possibility if the arbitrator finds that the insurer unreasonably withheld or delayed the payments of benefits.” As such, it falls within my discretion to add the issue of an award to this application.

13Further, I find that it is not procedurally unfair to the Respondent to add the issue of an award. The Respondent had the opportunity to respond to the Applicant’s submissions, and it exercised its participatory rights by delivering written hearing submissions on the issue of an award. This is consistent with the principles of procedural fairness.

14Accordingly, the Tribunal will consider the issue of whether the Respondent unreasonably withheld or delayed payment of the Applicant's accident benefits.

Substantive Issues:

Issue 1: IRB

15The Applicant is not entitled to IRBs, as he has not provided the Respondent with the information requested for the calculation of the entitlement to IRBs.

16The Applicant’s position is that he is entitled to IRBs for the 104 weeks after the accident, and after the 104 weeks, ongoing, as he suffers a complete inability to engage in any employment.

17Respondent’s position is that it is entitled to discontinue paying the IRBs pursuant to ss. 37(2)(c) and (e) of the Schedule, based on an Insurer’s Examination determining the Applicant is not entitled to the benefit, or the Applicant has resumed his pre-accident employment. The Respondent has requested updated information on the Applicant’s income, in accordance with s. 33(6) of the Schedule, but the Applicant has not provided the requested information. The Respondent submits the insurer is not liable to pay IRBs for the period the Applicant is not in compliance.

18In order to demonstrate entitlement to IRBs for the period of 104 weeks after the accident pursuant to s. 5(1)2 of the Schedule, the Applicant must establish on a balance of probabilities that, as a result of the accident, he suffered an impairment that caused him to be substantially unable to complete the essential tasks of his pre-accident employment. The onus is on the Applicant to satisfy his burden. There are two elements of consideration:

a. Was the Applicant employed at the time of the accident; and

b. Does the Applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment?

19In order to be entitled to IRBs beyond the 104-weeks post-accident period, the Applicant must satisfy the post-104 test. The test for entitlement is set out in s. 6(2) of the Schedule and provides that the insurer is not required to pay an IRB after the first 104 weeks of disability unless, as a direct result of the accident, the insured suffers a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience. This test is a more stringent test than the pre-104 IRB test.

20The insurer may request the Applicant provide information that is reasonably required to assist the insurer in determining the Applicant’s entitlement to a benefit. If the Applicant does not provide the information within 10 business days, in accordance with s. 33(1) of the Schedule, then the insurer is not liable to pay a benefit to the Applicant, pursuant with s. 33(6) of the Schedule. If the Applicant complies with the request at a later date, and provides a reasonable explanation, the withheld entitled amount shall be paid, in accordance with s. 33(8) of the Schedule.

21There is no dispute on the facts that the Applicant was employed before the accident and that he qualified and was paid IRBs for the first 52-weeks after the accident (December 24, 2020 – December 22, 2021), in the amount of $159.21 per week. The issue in dispute is the Applicant’s entitlement to IRBs from December 23, 2021, and ongoing.

22The Applicant submits an attendant care assessment and Form 1, dated June 8, 2021, a treatment and assessment plan completed by Curtis Seeley, D.C., dated April 5, 2021, and a progress report from Dr. Parkinson, dated August 18, 2023, as evidence that the Applicant has sustained a complete inability to engage in employment. Each of these documents speaks to the Applicant’s physical and psychological inability to work.

23The Respondent submits a disability certificate OCF-3 completed by Curtis Seeley D.C., dated May 12, 2021, and three Insurer’s Examination assessment reports, including a psychological assessment completed by Dr. Cheryl Bradbury on October 4, 2021, a physiatry assessment completed by Dr. John Heitzner on October 18, 2021, and a functional ability evaluation completed by Ms. Dawn Rodie, physiotherapist, on September 20, 2021. Each of these speaks to the Applicant’s ability to engage in employment. Furthermore, the Respondent submits a letter dated August 3, 2021, from Davis Martindale, Chartered Professional Accountants who were acting as an Agent of the insurer for the purpose of determining IRBs. In this letter a request was made for the Applicant to provide information required to update the calculations for IRB entitlement.

24I note that with the exception of the progress report from Dr. Parkinson, all of the evidence before the Tribunal on this issue, were written prior to the discontinuation of the Applicant’s IRBs. I find all of the assessments to be credible. It is the timing of these reports that provides insight as to whether the Applicant is entitled to IRBs.

25I do not doubt that the assessments from April, May, and June 2021, are accurate evaluations of the Applicant’s abilities and limitations for returning to work. However, I am persuaded by the report of Dr. Heitzner. It was during this assessment in October 2021, that the Applicant advised he had returned to his pre-accident employment. The Applicant did indicate he was making modifications for himself, such that he hired an apprentice to do some of the work he is no longer doing due to his limitations, but he was working. I find that when he returned to his pre-accident employment, he was no longer entitled to IRBs.

26The letter of Dr. Parkinson, dated August 18, 2023, provides information as to the Applicant’s decline. According to the report, the Applicant was receiving Ontario Works benefits, was being assisted with applications for Canada Pension Plan Disability Benefits, and Ontario Disability Support Program, which is indicative of the Applicant not working. However, the Respondent’s requests for information dated August 3, 2021, had not yet been answered by the Applicant. For this reason, I find that in accordance with s. 33(6) of the Schedule, the Respondent is not liable for payment of the IRBs.

27I find the Applicant has not met his onus to prove on the balance of probabilities that he is entitled to IRBs.

Issue 2: ACB

28I find the Applicant is not entitled to attendant care benefits. The attendant care benefits were not unreasonably withheld; therefore, the attendant care benefits are not deemed incurred.

29The Applicant’s position is that he requires attendant care for safety and to increase his functioning in his home environment.

30Respondent’s position is that under the Schedule, only reasonable and necessary incurred attendant expenses are payable. Based on the Insurer’s Examination assessment, attendant care is not reasonable or necessary, and the Applicant has not incurred any such expenses.

31Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services provided by an aide or attendant.

32Further, the amount of a monthly ACB is determined in accordance with the approved version of the document entitled Assessment of Attendant Care Needs (“Form 1”) that is required to be submitted under s. 42 and is calculated by:

(a) multiplying the total number of hours per month of each type of attendant care listed in the document that the insured person requires by an hourly rate that does not exceed the maximum hourly rate, as established under the Guidelines, that is payable in respect of that type of care, and

(b) adding the amounts determined under clause (a), if more than one type of attendant care is required.

33The maximum payable for ACB under the Schedule is $3,000.00 per month for non-catastrophically impaired insureds.

34Section 3(7)(e) of the Schedule provides that expenses are not incurred by an insured person unless:

(i) they have received the goods or services to which the expense relates;

(ii) they have paid the expense, have promised to pay the expense, or are otherwise legally obligated to pay the expense; and

(iii) the person who provided the goods or services,

(a) did so in the course of the employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or

(b) sustained an economic loss as a result of providing the goods or services to the insured person.

35Section 3(8) of the Schedule further provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.

36The Applicant submits that he has not incurred attendant care due to financial stress and that the Tribunal should deem attendant care to have been received as it was unreasonably withheld. The Form-1 dated June 8, 2021, with the attendant care assessment report completed by Arathi Gude and Maria Ross, occupational therapists are in evidence. The report details the Applicant’s increased post-accident dependency on his girlfriend for activities of daily living, such as hygiene, medication and appointment tracking, and household tasks. The letter of Dr. Parkinson dated September 1, 2023, also identifies acute psychological symptoms which underscore the need for attendant care to apply psychological rehabilitation into the Applicant’s home environment.

37The Respondent submits that based on the opinions of the Insurer’s Examination assessors, attendant care was not reasonable or necessary. The Respondent relies on the Neuropsychological Paper Review Report of Dr. Bradbury dated May 5, 2021 and the Occupational Therapy In-Home Assessment dated September 3, 2021 and Form 1 completed by Harish Sharma. The Respondent conducted an investigation of the Applicant in July 2023, and relies on the Investigation Report dated July 31, 2023.

38I have heard from the Applicant that in early to mid 2021 he was reliant on his common-law girlfriend for attendant care. I have not heard any evidence of an economic loss incurred due to the provision of her attendant care, in accordance with s. 3(7)(e) of the Schedule.

39I note that the In-Home assessment of Mr. Sharma included a review of a Neuropsychological assessment Report dated April 6, 2021 by Dr. Parkinson. The Applicant has not submitted this report of Dr. Parkinson into evidence. As reproduced in Mr. Sharma’s report, Dr. Parkinson indicated the Applicant had relative strengths in reasoning, planning, and identified poorer functioning involving processing speed, shifting attention, or memory retrieval. Dr. Parkinson’s prognosis anticipated an improvement in the Applicant’s cognitive functioning over time.

40In April 2021 Dr. Parkinson did not indicate the Applicant required attendant care. In May 2021, Dr. Bradbury opined the Applicant did not require attendant care because the Applicant advised he was independent in his personal care and completed light household tasks. In September 2021, Mr. Sharma opined the Applicant did not require attendant care because the Applicant demonstrated he was able to function independently. I note the Investigation Report from July 2023 provides limited information on the Applicant’s activities but demonstrates the Applicant acting independently during the surveillance. On the balance of probabilities, I find that attendant care was not reasonable and necessary.

41I am not persuaded by the letter of Dr. Parkinson dated September 1, 2023. The letter is based on the Applicant’s mental health at that time. The letter expresses support of the “previously recommended” attendant care assessment report completed by Arathi Gude and Maria Ross. I note that over two years had passed between the submission of the Form 1 and Dr. Parkinson’s letter supporting the treatment plan. During this time, the Applicant’s condition changed. I am not persuaded that the attendant care recommended in 2021 continues to be relevant in 2023 and ongoing.

42I find the Applicant has not met the burden of proof to establish the attendant care benefits are reasonable and necessary. The attendant care benefits were not unreasonably withheld and therefore, the attendant care benefits are not deemed incurred.

Issues 3, 4, and 5: Treatment Plans

43To 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.

Issue 3: Chiropractic services

44The Applicant is entitled to the treatment plan for chiropractic services, which is reasonable and necessary.

45Applicant relies on the treatment plan for chiropractic treatment proposed by Chris Seeley, D.C., dated April 5, 2021, which contains the treatment goals, as well as the treatment notes of the chiropractor indicating the Applicant was reporting the treatments were beneficial. The clinical notes and records of Minerva Pain Clinic are also relied on by the Applicant. These clinical notes support that the Applicant was improving with treatment he had received and recommended further treatment. The Applicant submits that the Insurer’s Examination conducted by Dr. Heitzner in a paper review, is internally inconsistent, and incorrectly identifies the Applicant has having achieved maximum medical recovery. The denial of the treatment plan as being not reasonable or necessary is an improper conclusion.

46Respondent relies on the Insurer’s Examination of Dr. Heitzner dated June 2, 2021, for the denial of the chiropractic treatment plan dated April 5, 2021. The Respondent submits that Dr. Heitzner opined the treatment plan was not reasonable or necessary as the Applicant had reached maximum medical recovery from facility-based treatment. The treatment plan was properly denied.

47The clinical notes of Minerva Pain Clinic in evidence are dated January 20, 2021. These support the benefits of ongoing treatment being sought by the Applicant. The treatment plan in dispute identifies pre-existing conditions that were worsened or aggravated by the accident. The goals identified are pain reduction, increased range of motion, and increase strength, as well as return to activities of normal living and return to modified work activities. Both objective and subjective evaluation methods are identified with improvements indicating the goals of treatment are being met, but not yet fully achieved. The chiropractor’s treatment notes in evidence are dated in 2023. I give little weight to the 2023 chiropractic treatment notes to be in support of the 2021 treatment plan. However, I do accept that the treatment notes indicate that the Applicant continued to find relief of his symptoms through ongoing treatment. The clinic account statement supports that the Applicant continually sought treatment from July 2021 to May 2023.

48The Insurer’s Examination report of Dr. Heitzner dated, April 19, 2021, provided his opinions that: (i) the Applicant should be removed from the MIG, and (ii) the January 14, 2021, treatment plan was reasonable and necessary. Dr. Heitzner also stated that he anticipated the Applicant would achieve maximum medical recovery with said treatment.

49In his June 2, 2021, report, Dr. Heitzner relies on his own previous speculation from April 19, 2021, to reach his new conclusion that the April 5, 2021, treatment plan was not reasonable or necessary because the Applicant had reached maximum medical recovery. I give this report little weight. Although Dr. Heitzner reviewed a neurological paper review report of Dr. Cheryl Bradbury, in the preparation of his June 2, 2021, report, he did not conduct a physical examination of the Applicant, nor did he review any medical reports concerning the Applicant’s physical condition at that time. I find that there is no evidence to support that the Applicant had reached maximum medical recovery.

50I find the Applicant is entitled to the disputed treatment plan because it is reasonable and necessary to address the Applicant’s ongoing pain and functional limitations.

Issue 4: Psychological services

51The Applicant is entitled to the psychological treatment plans in dispute.

52The Applicant submits the treatment plans submitted for psychological services submitted by Dr. Parkinson, psychologist, are reasonable and necessary. The Respondent’s assessor, Dr. Bradbury, neuropsychologist did not take into consideration the Applicant’s brain injury, nor did she justify her recommendation for the minimal treatment. The Applicant’s condition has declined, and treatment is critical. The Applicant relies on the treatment plans and Progress Report of Dr. Parkinson dated August 18, 2023.

53Respondent submits it is the Applicant’s onus to demonstrate the disputed treatment plans are reasonable and necessary. The treatment plans were partially approved and paid for, based on the reasonableness and necessity, and were properly denied. The Respondent relies on the assessment reports of Dr. Bradbury dated April 14, 2021, and December 6, 2021.

54I note that in the Applicant’s document brief there are clinical notes and records from the family physician, Dr. Maqbool, which begin on November 28, 2022. The Applicant did not direct me to these records in his submissions, nor do I have submissions as to when these records were provided to the Respondent for consideration toward or in support of the proposed treatment plans. These records also do not appear to have been provided to Dr. Bradbury for her consideration. For these reasons, I give no weight to these records.

55The treatment plans for psychological services identify the Applicant’s injuries and sequelae as a concussion, moderate depressive episode, and post-traumatic stress disorder, as well as physical injuries. The Applicant’s activity limitations are listed as tasks of employment and activities of normal life. The Applicant’s memory is affecting activities, and his low energy is affecting his marriage. Dr. Parkinson opines the Applicant should be treated for depression and pain. The goals of the treatment plan are pain reduction, improve mood, stress coping and cognitive compensation, as well as pain coping and to improve activity tolerances. Dr. Parkinson provided letters of explanation for the Applicant’s condition, treatment, and progress.

56In Dr. Bradbury’s neuropsychological paper review report dated April 14, 2021, she diagnosis the Applicant with adjustment disorder with mixed anxiety and depressed mood. Dr. Bradbury recommends partial approval of the treatment plans with a reduction in the number of treatments. In each of her assessment reports she maintains this diagnosis; however, she later indicates the Applicant’s condition is “partially resolved”.

57I find that Dr. Bradbury’s opinion that the Applicant’s condition is partially resolved, supports that the treatment is effective. I agree with the Applicant that Dr. Bradbury does not provide an explanation for her recommendation of reduced hours of treatment. I prefer the evidence of Dr. Parkinson, the Applicant’s treating physician who engages with the Applicant and who would better understand the Applicant’s response to treatment.

58In a letter sent to the Respondent from Dr. Parkinson dated August 18, 2023, he details the Applicant’s decline, including suicidal ideations. I am persuaded by the letter of Dr. Parkinson, the Applicant’s treating physician. The letter provides evidence that the Applicant’s condition and need for treatment has been ongoing.

59I find the Applicant has proven on the balance of probabilities that the treatment plans for psychological services are reasonable and necessary.

Issue 5: Occupational Therapy services

60The Applicant is not entitled to the occupational therapy treatment plans in dispute.

61The Applicant did not make submissions on the disputed occupational therapy treatment plans dated June 10, 2021, and June 11, 2021, completed by Arathi Gude, Occupational Therapist. The Applicant has not directed me to evidence in support of these treatment plans.

62I find the Applicant has not proven on a balance of probabilities that the occupational therapy treatment plans are reasonable and necessary.

Issue 6: Interest

63Pursuant to s. 51 of the Schedule, the Applicant is entitled to interest on any overdue payment of benefits.

Issue 7: Award

64The Applicant submits an award is owing pursuant to s.10 of Regulation 664 because the insurer unreasonably withheld and delayed payment of benefits.

65The Respondent submits that it has properly responded to the submitted treatment plans and accident benefits in dispute.

66I find that the Respondent made determinations based on the opinions received from the assessors, pursuant to the Schedule. The Applicant has an obligation to provide the Respondent with pertinent medical records and information on an ongoing and responsive basis, to support the entitlement of accident benefits. I find that the Respondent should not be held accountable for the delay caused by the absence of medical information that may, upon receipt, alter the determination of entitlement to accident benefits.

67I find the Respondent’s conduct is not worthy of an award.

Conclusion and ORDER

68The Tribunal orders the following:

I. The Applicant is not entitled to income replacement benefits.

II. The Applicant is not entitled to attendant care benefits.

III. The Applicant is entitled to the chiropractic and psychological treatment plans in dispute, plus interest in accordance with s. 51 of the Schedule.

IV. The Applicant is not entitled to the occupational therapy treatment plans.

V. The Applicant is not entitled to an award under s. 10 of Regulation 664.