Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-006540/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Adetokunbo Adeoye
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Adam Ridolfi, Paralegal
For the Respondent: Andrea Bandow, Counsel
HEARD: By way of written submissions
OVERVIEW
1Adetokunbo Adeyeo (the "applicant"), was involved in an automobile accident on September 10, 2018, 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 Insurance Company of Canada (the "respondent") and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit ("NEB") of $185.00 per week from October 23, 2019, to September 14, 2020?
ii. Is the applicant entitled to attendant care benefits ("ACB") in the amount of $1,878.80 per month from September 18, 2018, to date and ongoing?
iii. Is the applicant entitled to lost education expenses in the amount of $1,750.00, submitted on September 11, 2019?
iv. Is the applicant entitled to assistive devices in the amount of $2,520.44, proposed by General Med Inc. in a treatment plan denied on October 13, 2020?
v. Is the applicant entitled to chiropractic services in the amount of $1,100.00, proposed by Dr. Antonia Shirru Professional Corporation in a treatment plan denied on November 11, 2022?
vi. Is the respondent liable to pay an award under section 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
3The applicant is not entitled to an NEB or an ACB. The applicant is not entitled to lost educational expenses or either of the disputed treatment plans. No interest or award is payable.
ANALYSIS
The applicant seeks an NEB
4I find the applicant is not entitled to an NEB.
5In this case, the legal test for an NEB—found at section 12(1)1 of the Schedule—requires the applicant to prove he does not qualify for an income replacement benefit ("IRB") and suffers a complete inability to carry on a normal life because of, and within 104 weeks after, the accident. Section (7)(a) of the Schedule defines a "complete inability" as an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
6Neither party disputes that the applicant is not entitled to an IRB. Therefore, this matter is focused on the complete inability aspect of the NEB eligibility test.
Submissions of the parties
7The applicant submits that his pain-related "disability limitations" prevent him from engaging in the essential tasks of daily living. He says the Tribunal ought to consider the manner and performance quality of his activities, and not just whether he can "go through the motions." The applicant contends that his disability certificate (the "OCF-3") and all other medical evidence support his entitlement to an NEB. He adds that the respondent paid an NEB from November 10, 2019, to December 4, 2019, and then unilaterally stopped any further payments.
8To support his NEB claim, the applicant points to his affidavit and two OCF-3s; one completed by Ms. Grecia Delgadillo (physiotherapist) on February 15, 2019; and the other completed by Mr. Chris Statten (physiotherapist) on September 27, 2019.
9The respondent argues that the applicant has failed to demonstrate he is entitled to an NEB. The respondent says the applicant did not report accident-related injuries until six months post-accident, and that his knee condition and psychological symptomology are owing to factors unrelated to the accident. The respondent also says there is no medical evidence to support the applicant's neck injury claims. The respondent adds that most of the applicant's assessors and treating professionals have not offered a medical opinion that supports eligibility for an NEB, and that the applicant's analysis of his pre-and-post accident activities is neither a thorough nor evidence-supported comparison. Concerning the applicant's submission on NEB benefits paid between November and December of 2019, the respondent says this was done to "correct its failure to comply with section 36(4) of the Schedule", and that it relied on the results of an Insurer's Examination ("IE") to deny the NEB in May 2020.
10To support its position, the respondent relies on an IE completed by Dr. Jacqueline Auguste (orthopaedic surgeon) on May 19, 2020, and an occupational therapy assessment report completed by Ms. Lisa Slapinski (occupational therapist) on August 26, 2020.
The applicant does not suffer a complete inability to carry on a normal life
11I disagree that the applicant's evidence proves he is entitled to an NEB. I find that part 6 of the OCF-3 completed by Ms. Delgadillo indicates the applicant does not meet the NEB test. Put another way, the applicant's own evidence includes the opinion of a treating practitioner that he does not meet the NEB test. In my view, this is inconsistent with the applicant's submissions and does not support NEB entitlement. I do not agree, as proposed in the applicant's reply submissions, that Ms. Delgadillo's opinion on his entitlement to other benefits—such as an income replacement benefit, lost educational expenses, and housekeeping and home maintenance—qualify him for an NEB. In my view, the NEB has its own legal test, which is separate and distinct from other benefits in the Schedule, and Ms. Delgadillo indicated the NEB test was not met in her opinion.
12While I accept that part 6 of the OCF-3 completed by Mr. Statten indicates the applicant meets the NEB test, I do not put full weight on this opinion as evidence of NEB entitlement. In part 5, Mr. Statten credits the applicant's disability to a medial meniscal tear and explains that surgery had been recommended by Dr. O'Reilly (orthopaedic surgeon) to repair the applicant's knee structure. I find this evidence is insufficient because the applicant failed to corroborate the injury by directing me to the medical report of Dr. O'Reilly, where the meniscal tear diagnosis was presumably made. I also find the applicant did not pinpoint the family physician's evidence of a right meniscus tear requiring arthroscopy surgery. Further, I was not persuaded by the legible parts of Mr. Statten's handwritten comments pertaining to the NEB—which indicate the applicant is unable to do his normal gym routine and sports—because this opinion is not corroborated by contemporaneous evidence referenced in the applicant's submissions.
13This is not to say that I doubt the applicant suffered a knee injury in the accident. On the contrary, the applicant's reply submissions reference a hospital report completed the day after the accident that establishes he experienced a knee strain and contusion with slight effusion (i.e., fluid accumulation in the knee joint). However, the applicant did not point to any limitations or restrictions on life activities recommended by the attending emergency room physician. Further, I was not directed to evidence in the family physician's records that speaks to the applicant's claims of a knee injury requiring surgery, disc extrusion, and disc herniation related to the accident. Even if this evidence was put before me, I would still have no basis to conclude the applicant meets the complete inability test because evidence of an injury, in and of itself, is not persuasive proof of being continuously prevented from engaging in substantially all pre-accident activities.
14While the applicant provided an affidavit, I find his NEB submissions on this evidence rely principally on the exhibit, where he provides what appears to be his own analysis of his pre-and-post accident activities of daily living. In my view, the exhibit is not persuasive or sufficient because it does not point to corroborating medical evidence. I therefore did not assign much weight here.
15The applicant does, however, reference several medical reports about his mental health in his submissions. These include a psychoeducational report completed by Dr. Clara Beissel (psychologist) on January 8, 2018; a psychological report completed by Dr. Eugene Hewchuk on November 30, 2020; and clinical notes and records completed by Dr. Juliana Li (psychiatrist) on March 16, 2022, and April 6, 2022.
16I am not convinced that accident-related psychological trauma supports the applicant's entitlement to an NEB. The applicant claims he was diagnosed with psychological trauma at the hospital following the accident, but he does not point to any psychological diagnoses or symptomology offered in the post-accident hospital report. Similarly, the applicant did not point to evidence of psychological trauma in his family physician's clinical notes and records up to when the OCF-3 was completed by Mr. Statten.
17While I accept that Dr. Beissel's pre-accident report offers diagnoses of attention deficit hyperactivity disorder ("ADHD"), generalized anxiety, and major depression, I was not pointed to evidence of aggravated or exacerbated psychological symptoms that resulted from the accident. I therefore did not place much weight on Dr. Beissel's report. I also placed little weight on Dr. Hewchuk's report. This is because the applicant only references diagnoses of somatic symptom disorder and major depressive disorder, which, in my view, is not persuasive evidence because diagnoses, in and of themselves, do not speak to how or to what degree the symptomology associated with these diagnoses affects the applicant's ability to engage in pre-accident life activities.
18Similarly, I was not persuaded by the psychiatric evidence of Dr. Li. While the applicant's submissions reference diagnoses of ADHD, persistent depressive disorder, complex post-traumatic stress disorder ("PTSD"), and cannabis use disorder, I find Dr. Lui characterized these as diagnostic impressions in her March 2022 note, which, in my view, are not diagnoses. Further, Dr. Li attributed her impressions of ADHD and complex PTSD to pre-accident factors, and characterized her impression of the cannabis disorder as a "past event" that "significantly reduced in recent years." In my view, this evidence does not support accident-related psychological issues on balance.
19I also find the applicant's claim of school responsibility struggles are not documented in Dr. Li's notes as referenced by the applicant, and that the applicant did not point to evidence that shows the chronic sleep problems, racing thoughts and worries, and poor concentration he reported to Dr. Li affects his engagement in life activities to a degree consistent with NEB entitlement. The applicant's reply submissions again speak to stress and concentration difficulties, as well as exacerbation of his pre-accident diagnoses. However, I gave this little weight because the applicant referenced this evidence in the context of a discussion with a "Dr. Tham" (specialty not disclosed) on May 7, 2019, that was not pinpointed in evidence.
20The applicant also produced a medical report of a physiatry examination performed by Dr. Ali Ghouse (physiatrist) on April 27, 2022. Like the mental health reports, I am considering it here although the applicant did not point to it in his NEB submissions.
21I am not persuaded by Dr. Ghouse's medical opinion. While I accept Dr. Ghouse believes the applicant's injuries continuously prevent him from engaging in substantially all his important pre-accident essential tasks and activities that he ordinarily engaged in before the accident, I find that some of the injuries contemplated in Dr. Ghouse's opinion—complaints of pain in the applicant's neck and low back, as well as miscellaneous symptoms (i.e., urinary frequency, sleep disturbances, anxiety, and poor appetite)—are not supported by evidence contemporaneous to the accident. The hospital report completed the day after the accident notes only a knee injury, and this is consistent with the applicant's complaints to Dr. Auguste 20 months post-accident. The applicant's submissions did not point to evidence of back or neck pain arising from accident-related injuries that corroborate Dr. Ghouse's report.
22I further discounted Dr. Ghouse's evidence because the applicant failed to direct me to contemporaneous evidence of disability to support his medical opinion. While I accept Dr. Ghouse documented "poor" activity tolerances reported by the applicant, and formed his medical opinion by relying, in part, on medical records that are contemporaneous to the NEB period, I was not pointed to where or how Dr. Ghouse weighed these documents in his analysis; the applicant's submissions reference only a list of records that were reviewed and, further, do not point to any objective physical examination or independent assessment conducted by Dr. Ghouse to reconcile his file review and substantiate the applicant's own reports of his activity limitations.
23I prefer the May 2020 evidence of Dr. Auguste because it falls within the NEB period and is more consistent with the bulk of the evidence in this case. Dr. Auguste's physical examination objectively determined the applicant had only a mildly antalgic gait (i.e., a limp) and tenderness in his knee, with no substantive impairments to function. Dr. Auguste made no indication to impose any specific restrictions on the applicant's activities. I find this is consistent with the hospital report completed the day after the accident.
24I also find Dr. Auguste's opinion—that the applicant was not suffering a complete inability to carry on a normal life—is supported by the applicant's own report of returning to driving and being a full-time student. In fact, the respondent produced college transcripts that confirm the applicant took three college courses in the 2020 summer term that is contemporaneous to Dr. Auguste's examination. In my view, the applicant's subsequent disclosure of continuing to play basketball (per the clinical note in evidence dated July 17, 2020) further corroborates Dr. Auguste's medical opinion.
25As well, I find the in-person assessment conducted by Ms. Slapinski in August 2020 is consistent with Dr. Auguste's medical opinion. I put weight on this assessment because it was conducted during the NEB period for the purpose of evaluating the applicant's NEB eligibility. Ms. Slapinski performed her own independent assessment of the applicant and concluded he demonstrated the physical and cognitive functional ability to independently manage most of his pre-accident normal daily activities using pacing, which I find is inconsistent with the exhibit presented as part of the applicant's affidavit. I disagree with the applicant's position that Ms. Slapinski failed to recognize and document that the applicant had to make adjustments to his lifestyle and function after the accident, as she clearly says pacing is required. In my view, this evidence is not consistent with impairment that continuously prevents the applicant from engaging in substantially all of the activities in which he ordinarily engaged before the accident.
26While the applicant also produced occupational therapy evidence—consisting of the two assessments completed by Mr. Jag Dhirayain (occupational therapist) on October 10, 2019, and June 24, 2020, respectively—I did not find them persuasive because the applicant only pointed to these to support his attendant care claim. Further, the purpose of those reports relates only to attendant care and not NEB entitlement.
27Taken together on balance, I find this evidence does not establish that the applicant suffers a complete inability to carry on a normal life because of, and within 104 weeks after, the accident. Therefore, I am not convinced the applicant is entitled to an NEB.
The applicant seeks an ACB
28I find the applicant is not entitled to an ACB.
29Section 19(1) of the Schedule establishes that the applicant must prove the expenses incurred to pay for attendant care are reasonable and necessary. The definition of incurred is found at section 3(7)(e) of the Schedule, which says an expense is not incurred unless the applicant has: (1) received the services to which it relates; (2) paid, promised to pay, or is otherwise legally obligated to pay the expense; and (3) the person who provided the services was professionally employed to do so or sustained an economic loss as a result of providing the services. Section 3(8) provides that the Tribunal may otherwise deem the expense incurred for the purpose of determining entitlement to a benefit if it finds an expense was not incurred because the respondent unreasonably withheld or delayed payment of the benefit. Section 42(5) says the respondent may, but is not required, to pay an expense incurred before an assessment of attendant care needs (the "Form 1") is submitted.
Submissions of the parties
30The applicant submits that the respondent unreasonably withheld or delayed paying the ACB recommended in the Form 1 completed by Mr. Dhirayain. The applicant says he clearly communicated his "impecunious" financial situation and lack of funds for attendant care to the respondent, and relies on Colin Veley v. Motor Vehicle Accident Claims Fund, 2014 ONFSCDRS 74 ("Veley"), as well as 17-001681 v. Motor Vehicle Accident Claims Fund, 2018 CanLII 112134 (ON LAT) ("17-001681") to support his position. The applicant also relies on an occupational therapy report and updated Form 1 completed by Mr. Dhirayain in October 2019 and June 2020, respectively.
31The respondent submits that it is not required to pay an expense incurred before the Form 1 was submitted on October 23, 2019, and that the applicant has not shown attendant care expenses after this date are reasonable and necessary. The respondent adds that the applicant has not presented evidence to show attendant care expenses were incurred per the Schedule, nor that he has received attendant care services. The respondent relies on Pucci v. The Wawansea Mutual Insurance Company, 2020 ONCA 265 ("Pucci"), and asserts the applicant has led no evidence to show the respondent unreasonably withheld or delayed payment. The respondent also relies on the occupational therapy report by Ms. Slapinski.
Did the respondent unreasonably withhold or delay payment of ACBs to the applicant?
32No. The onus to prove the respondent's conduct falls on the applicant, and I find that the applicant has not pointed to persuasive evidence that supports his ACB payments were unreasonably withheld or delayed.
33In my view, the essence of the applicant's argument is this:
i. In October 2019, he provided the respondent with a Form 1 that calculated a monthly ACB of $1,878.80.
ii. That same month, and again in the month following, he sent a letter that asked the respondent to consider deeming the expenses incurred in light of his impecunious financial situation.
iii. He received a response back from the respondent in May 2020 that indicated it would reimburse his attendant care benefits, and a subsequent letter on August 27, 2020, that advised the respondent would not consider paying further ACB expenses past August 12, 2020, owing to the results of an IE that indicated an ACB was not reasonable and necessary.
iv. The applicant therefore reasons that the respondent committed to paying attendant care benefit payments up to August 12, 2020, and that its failure to make these payments constitutes unreasonably withheld or delayed payment of the ACB it promised to reimburse in May 2020.
34While I agree the applicant twice communicated that his financial situation was impecunious within a month of Mr. Dhirayain completing the first Form 1 in October 2019, I was not pointed to evidence that confirms the status of the applicant's finances at that time. Further, I was not persuaded by the applicant's letters to the respondent (dated October 25, 2019, and November 25, 2019) because they offer no evidence of impecuniosity. In my view, the applicant was required to show, and not just tell the respondent his financial situation was, in fact, impecunious if he sought to be exempted from providing evidence that attendant care expenses were incurred per section 3(8) of the Schedule. This is a guiding principal Veley espouses—that the respondent knows the applicant to be in an impecunious situation. So, while I agree with the applicant's submissions that section 3(8) of the Schedule enables the Tribunal to waive the incurred provisions at section 3(7)(e), I decline to do so here because the applicant has not led evidence of the "certain circumstances" (i.e., impecuniosity) he claims to justify the exemption.
35Similarly, I am not convinced the respondent's letter of May 29, 2020, is evidence that the respondent deemed the expenses incurred, or otherwise committed to pay them if they were not incurred. While the applicant says the respondent advised they would reimburse ACB up to the amount specified in the October 2019 Form 1, I find this is not the case. The respondent's letter clearly indicated it would reimburse incurred attendant care benefits up to the amount of the October 2019 Form 1. The applicant did not point to evidence that shows he incurred attendant care expenses at any time before or after submitting his Form 1 to the respondent. I find there is no ambiguity here as suggested by the applicant (i.e., that the respondent's letter deemed the expenses incurred because of the applicant's impecunious financial situation). Therefore, I conclude that because the applicant did not demonstrate he had incurred attendant care expenses, his argument that the respondent unreasonably withheld or delayed payment of attendant care expenses must fail.
36I also find that this matter is distinguishable from 17-001681 because the applicant has not convinced me that the IEs produced by the respondent are flawed. While I agree that Dr. Auguste's IE merits little weight in the context of an ACB assessment where the Form 1 may only be completed by a nurse or occupational therapist, I find that Ms. Slapinski's report is not characterized by the flaws proposed by the applicant. As I mentioned earlier in this decision, Ms. Slapinski recognized the applicant needed to adjust some of his activities post-accident by pacing his efforts.
37Further, I do not agree that Ms. Slapinski's report is flawed because she did not list any clinical notes and records as being reviewed. In fact, Mr. Dhirayain's report refers to just one entry in such records—Dr. Kevin Willis' note of June 13, 2019—so I do not find the distinction offered by the applicant to be substantive. I agree with the respondent that overall, Ms. Slapinski's report benefited from a more comprehensive medical document review than that presented by Mr. Dhirayain, which further diminishes the weight I afford the applicant's argument that Ms. Slapinski's file review is deficient. I do not find that the exclusion of Dr. Beissel's psychiatric report from Ms. Slapinski's file review equates to a flawed report as proposed by the applicant because I was not presented with evidence that convinces me it is within an occupational therapist's scope of practice to establish a connection between an applicant's pre-accident psychological condition and their post-accident functioning. Further, I see no reference to Dr. Beissel's report in the "documents reviewed" section of Mr. Dhirayain's report, nor could I locate an "Appendix A" to Mr. Dhirayain's report that lists additional documents. In my view, the applicant cannot rely on the omission of a report as the basis for a flawed analysis when that same omitted report was not considered by his own assessors.
Is the ACB reasonable and necessary?
38In my view, it is not necessary to analyze the reasonableness and necessity of the applicant's ACB claim because he has not demonstrated he incurred any attendant care expenses, and does not qualify for the exemption from this requirement per section 3(8) of the Schedule.
The applicant seeks lost educational expenses
39I find the applicant is not entitled to any further lost educational expenses.
40Section 21(1) of the Schedule says an insurer shall pay up to $15,000.00 for lost educational expenses incurred by an insured person who sustained an accident-related impairment if, at the time of the accident, the insured person was enrolled in a school program and is unable to continue in the program as a result of the accident. This is to be read in conjunction with section 21(5) of the Schedule, which defines lost educational expenses as expenses incurred before (emphasis added) the accident in respect of the program term or year in which the insured in enrolled at the time of the accident.
Submissions of the parties
41The applicant submits he personally paid tuition fees of $2,537.40 in five installments, and that the respondent reimbursed only $1,427.33 of these fees, plus interest. The applicant reasons the respondent owes the balance of $1,110.07 plus interest. The applicant relies on a statement of accounts receivable issued by Fanshawe College on February 1, 2023.
42The respondent agrees that, as a good faith gesture, it paid $1,427.33 towards lost educational expenses incurred for the business-finance program at Fanshaw College for the Fall 2018 term, in which the applicant was enrolled at the time of the accident. The respondent argues that the applicant has not provided evidence that the balance of $1,110.07 was incurred at the time of the accident, nor that it relates to lost educational expenses as defined by the Schedule, nor that it relates to an inability to continue his educational program as a result of the accident.
The balance claimed by the applicant does not qualify as a lost educational expense
43I do not agree the applicant has met his burden with respect to lost educational expenses. While I accept the accounts receivable statement shows the applicant was enrolled in a post-secondary school program at the time of his accident, I do not agree that all the payments he identified in his statement qualify as lost educational expenses as defined by the Schedule, which is what the applicant needs to prove.
44The statement provided by the applicant is inconsistently marked up in several different ways (asterixis, bolded fonts, and highlights). The only series of marks that add up to the $2,537.40 total referenced in the applicant submissions are the four bolded entries that pertain to payments described as "College Bank Account," and the two bolded entries that pertain to what is described as "Distribution On Web." These payments are made between June 14, 2017, and December 25, 2022.
45Considering the accident occurred on September 10, 2018, I find up to three of these six payments could perhaps qualify as lost educational expenses because they occur before the accident: reference number 001085432 in the amount of $317.40 made on January 10, 2017, reference number 001130238 in the amount of $500.00 made on June 14, 2017, and reference number 001234556 in the amount of $500.00 made on June 13, 2018. While I accept that the accounts receivable statement does not clearly identify if any of the six payments relate to expenses that qualify under section 21(5) of the Schedule, such as tuition, books, equipment, or room and board, I find, on balance, that the payments likely do pertain to tuition because the statement largely pertains to course and semester registrations. In any event, the parties agree that the respondent has already paid more towards lost educational expenses than the $1,317.40 total of pre-accident payments.
46As such, I am not persuaded that the applicant is entitled to a further $1,110.37 in lost educational expenses because I find the statement shows this amount would have been incurred after date of the accident. I therefore do not agree the applicant is entitled to the lost educational expenses he claims.
The applicant seeks assistive devices recommended in the disputed treatment plan
47I find the applicant is not entitled to the disputed treatment plan that pertains to assistive devices.
48Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule further explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, the applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
Submissions of the parties
49The applicant submits that Mr. Dhirayain recommended assistive devices in the amount of $2,520.44 in his October 2019 occupational therapy report. The applicant adds that this recommendation led to the disputed OCF-18 for those devices, which the respondent denied because Ms. Slapinski reached an inconclusive recommendation on the basis that the applicant's condition could change after his surgery. The applicant relies on the clinical notes and records from January 8, 2018, to February 13, 2023, to show he had a pre-existing aggravated and exacerbated psychiatric issue and ongoing musculoskeletal difficulties that resulted from the accident. The applicant also relies on a "poor" prognosis offered by Dr. Li.
50The respondent argues that the applicant did not produce a complete copy of the disputed treatment plan, and that the one page he provided deprives the Tribunal of its ability to fully and accurately assess the reasonableness and necessity of the treatment plan. The respondent adds that no evidence has been produced to show the applicant's family physician or any OHIP specialists have recommended assistive devices. The respondent relies on the IE reports of Dr. Auguste and Ms. Slapinski.
The applicant's evidence does not persuade me as to his entitlement
51I am not convinced that the evidence referenced in the applicant's submissions meets the applicant's onus of proof. I find the applicant's submissions did not speak or point to psychiatric-specific devices, and, in my view, did not refer to evidence that persuades me a psychiatric prognosis is relevant to assistive devices that relate to the applicant's physical functioning. While I agree the recommendation section of Mr. Dhirayain's report lists 21 assistive devices, I find the applicant's submissions do not pinpoint where Mr. Dhirayain substantiates the reasonableness and necessity of these items in his report. This causes me to diminish the weight I afford to Mr. Dhirayain's recommendations for assistive devices. I further find the treatment plan as produced by the applicant is not sufficient to show it is reasonable and necessary. While it reiterates the list of recommended devices and identifies the cost of each item, the one page that is provided does not speak to the goals of the plan or whether they can reasonably be met (i.e., progress measures). Similarly, the applicant did not pinpoint which clinical notes and records within the five-year period he produced that he relies on to establish the reasonableness and necessity of the treatment plan for assistive devices.
52The applicant has failed to provide the goals of this treatment plan or show they can reasonably be met. He did not specifically direct me to medical evidence or corroborating opinions that supports the plan's reasonableness and necessity. I therefore conclude the applicant is not entitled to the assistive devices listed in the plan.
The applicant seeks chiropractic services
53I find the applicant is not entitled to the disputed treatment plan pertaining to chiropractic services.
54Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule further explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, the applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
Submissions of the parties
55The applicant submits that the clinical notes and records from January 8, 2018, to February 13, 2023, show he had a pre-existing aggravated and exacerbated psychiatric issue and ongoing musculoskeletal difficulties that resulted from the accident. The applicant adds that the respondent relied on Dr. Auguste's March 2023 report, which adopted a previous diagnosis. The applicant also relies on the "poor" prognosis offered by Dr. Li.
56The respondent argues that Dr. Auguste's physical examination of the applicant—as described in her March 2023 report—produced normal results except for tenderness in his right knee, and found no objective evidence of any accident-related impairments that would make the disputed chiropractic treatment plan reasonable and necessary.
The applicant's evidence does not persuade me as to his entitlement
57I am not convinced that the evidence referenced in the applicant's submissions meets his onus of proof. I find the applicant's submissions did not speak or point to evidence that persuades me a "psychiatric prognosis" is relevant to chiropractic treatment. I further find the treatment plan as produced by the applicant is not sufficient to show it is reasonable and necessary. While it reiterates the proposed chiropractic services and identifies their costs, the one page that is provided does not speak to the goals of the plan or whether they can reasonably be met (i.e., progress measures). Similarly, the applicant did not pinpoint which clinical notes and records within the five-year period he produced that he relies on to establish the reasonableness and necessity of the treatment plan for chiropractic services.
58The applicant has failed to provide the goals of this treatment plan or show they can reasonably be met. He did not specifically direct me to medical evidence or corroborating opinions that supports the plan's reasonableness and necessity. I therefore conclude the applicant is not entitled to the assistive devices listed in the plan.
Interest
59Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. No benefits are owing, therefore interest does not apply.
Award
60The applicant sought an award under section 10 of Regulation 664. Under section 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. In this case, the respondent is not liable to pay an award as no benefits have been unreasonably withheld or delayed.
ORDER
61The applicant is not entitled to an NEB or an ACB. The applicant is not entitled to lost educational expenses or either of the disputed treatment plans. No interest or award is payable.
62The application is dismissed.
Released: May 6, 2024
Michael Beauchesne Adjudicator