Citation: Holung v. Security National Insurance Company, 2024 ONLAT 21-014326/AABS

Licence Appeal Tribunal File Number: 21-014326/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:

Ranique Holung Applicant

and

Security National Insurance Company Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Tanya Walia, Counsel

For the Respondent: Nicholas Maida, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ranique Holung, the applicant, was involved in an automobile accident on July 9, 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 the respondent, Security National Insurance Company, 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 of $185.00 per week from July 9, 2019 to date and ongoing?

ii. Is the applicant entitled to attendant care benefits in the amount of $1,652.93 per month from April 6, 2021 to date and ongoing?

iii. Is the applicant entitled to $2,875.95 for optometric services, proposed by Elite Vision Therapy Centre in a treatment plan (“OCF-18”) dated April 23, 2021?

iv. Is the applicant entitled to the outstanding balance of assessments proposed by Complete Rehab Centre, as follows: i. $220.00 for a neurological assessment, in a treatment plan dated April 6, 2020; and ii. $220.00 for a psychological assessment, in a treatment plan dated March 2, 2020?

v. Is the applicant entitled to $1,779.32 for physiotherapy and acupuncture services, proposed by Wecare Rehab in an OCF-18 dated October 12, 2021?

vi. Is the applicant entitled to $1,663.94 ($1,945.13 less $281.19 approved) for various expenses, submitted on a claim form (OCF-6) dated March 18, 2021?

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

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

RESULT

3I find that:

i. The applicant is not entitled to a non-earner benefit;

ii. The applicant is not entitled to attendant care benefits;

iii. The applicant is not entitled to the OCF-18s in dispute, or interest;

iv. The applicant is not entitled to the outstanding expenses listed in the OCF-6 form; and

v. The respondent is not liable to pay an award.

ANALYSIS

Non-earner benefit (“NEB”)

4I find that the applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life as a result of the accident.

5Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally focuses on a comparison of the applicant’s pre- and post-accident activities.

6Section 36 outlines the process for claiming an NEB. Section 36(2) states that an insured person must submit a completed OCF-3 with their application for a specified benefit pursuant to s. 32. Section 36(3) also sets out the entitlement period for the NEB once the completed OCF-3 is received: essentially, an insured person who fails to submit a completed OCF-3 is not entitled to an NEB for any period before the completed OCF-3 is submitted.

7Although from her submissions the applicant appears to be requesting payment of NEBs for the entire 104 week period post-accident, I agree with the respondent that the applicant is not entitled to payment of an NEB for any period before the completed OCF-3 was submitted. The applicant concedes that she submitted an OCF-3 on February 25, 2021 supporting her claim for an NEB. As such, the applicant would only potentially be entitled to payment of the specified benefit from February 25, 2021 to July 9, 2021.

8With respect to the substantive entitlement to NEBs, I find that the applicant has not led sufficient evidence of a complete inability to carry on a normal life.

9The applicant argues that due to her concussion and chronic pain, she can no longer complete her activities of normal living. She relies on the s. 25 psychological assessment report of Dr. Andrew Shaul dated April 10, 2020 and a neurology assessment report of Dr. Lance Majl dated December 9, 2020. Both Dr. Shaul and Dr. Majl opined that the applicant was prevented from completing her housekeeping chores, and many pre-accident social and recreational activities as a result of her concussion-related and psychological impairments.

10However, the s. 44 assessments paint a different picture of the applicant’s impairments, which I find probative. The respondent relies on its s. 44 physiatry, neurology and psychology assessments, where all of its assessors found that the applicant did not suffer from a complete inability to carry on a normal life as a result of the accident. The applicant reported to Dr. Ryan Williams, physiatrist, that she was independent in all of her self-care, had resumed all of her household chores, although she shopped for groceries less frequently and had resumed activities such as yoga and driving although she had not returned to running or weight training. She similarly reported to Dr. Yahmad, neurologist, and Dr. Moshiri, psychologist, that she had resumed many, if not most, of her pre-accident activities.

11I agree with the respondent that the medical evidence does not support a complete inability to carry on a normal life. Aside from the applicant’s reports to all of the respondent’s s. 44 assessors that she had resumed most of her pre-accident activities of daily living, she similarly reported to her naturopath, Dr. Jen Newell in August 2020 that her activity/exercise level was “pretty high”, that she was doing yoga teacher training and that she loved to dance (salsa).

12While the applicant reported to various assessors that she was unable to return to university as a result of her accident-related cognitive impairments, the applicant has not provided sufficient evidence in support of this claim. No school records have been tendered by the applicant. The clinical notes and records (“CNRs”) of her family physician Dr. Fogal indicate that in August 2019 they had discussed “school (fall)”. But the applicant does not direct me to any CNR entry where Dr. Fogal opined that she was unable to return to school. Although the applicant relies on a psychoeducational assessment report dated August 15, 2021, the assessor Dr. Lopo, psychologist, did not opine that she was unable to return to school. Rather, Dr. Lopo recommended certain educational accommodations. No information was provided by the applicant as to whether such accommodations were explored with the university.

13As such, I find that the applicant has not led sufficient evidence to establish that her accident-related impairments continuously prevented her from engaging in substantially all of her pre-accident activities.

Attendant Care Benefits (“ACBs”)

14I find that the applicant has not established entitlement to ABCs.

15Section 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 ACB services provided by an aide or attendant.

16The applicant relies on her attendant care assessment and Form 1 dated January 15, 2021 which assessed monthly ACBs in the amount of $1,652.83. She submits that she requires assistance with grooming, meal preparation, cleaning her bedroom and bathroom and exercise, due to her limitations with prolonged standing, walking and sitting, restrictions with lifting, carrying weighted items, bending, pushing and kneeling. The applicant further argues that the respondent acted in bad faith in relying on its own s. 44 occupational therapy assessment, since the respondent had already approved her s. 25 attendant care assessment.

17I am not persuaded by the applicant’s argument that the respondent acted in bad faith by conducting its own insurer’s examination. While the respondent approved the cost of the applicant’s s. 25 assessment, I do not see how that would preclude the respondent from obtaining its own examination. The applicant does not direct me to any caselaw or statutory authority in support of the position that the respondent must accept an applicant’s s. 25 assessment once approved. Rather, s. 42(4) and s. 44 of the Schedule expressly hold that an insurer may request an examination by a regulated health professional of its own choosing, to determine a claimant’s entitlement to ACBs.

18Further, the applicant has not led sufficient evidence that such ACB services are reasonable and necessary. Although the applicant’s Form 1 requested assistance with grooming (hair care and nail clipping), the applicant has consistently reported that she is independent in all of her personal care activities. Similarly, the applicant’s Form 1 requested assistance with cleaning her bedroom and bathroom, despite the applicant’s reports to various assessors that she had resumed all of her pre-accident household chores. Finally, the applicant’s Form 1 proposed 210 minutes per week to assist the applicant with an exercise program. However, no evidence has been submitted as to why such assistance is required. The applicant reported to her naturopath throughout 2021 that she was becoming a yoga teacher and was “working out more (HIT)”.

19For the foregoing reasons, I find that the applicant has not met her onus to prove that the proposed ACBs are warranted.

20Sections 14 and 15 of the Schedule set out 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.

21The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

The OCF-18 in the amount of $2,875.95 for optometric services is not reasonable and necessary

22The applicant submitted an OCF-18 for ten sessions of optometric vision therapy and three sets of glasses. She states that she has been suffering from vision impairments since the accident and was diagnosed with photophobia in addition to her concussion. The treatment sessions and glasses were recommended in a functional and binocular vision evaluation prepared by her optometrist Dr. Angela Peddle.

23The respondent denied the OCF-18 on the basis of its own assessment by Dr. Ranalli, neuro-ophthalmologist. Dr. Ranalli found that the applicant’s examination was normal, that any distance refractive error was already corrected by her current glasses, and that the proposed treatment has not shown validated efficacy. The respondent further argues that the applicant only provided the last two pages of the OCF-18, but did not include the portion of the OCF-18 which identified the stated goals of treatment.

24I agree with the respondent that the applicant has not submitted the complete OCF-18 and as such, has not identified the stated goals of the proposed devices and treatment. Despite having the right of reply, the applicant did not address this omission or clarify the stated goals of the OCF-18. I am persuaded by the Tribunal decisions cited by the respondent, K.R. v Aviva Insurance Canada, 2019 CanLII 22218 (ON LAT) and Furquan v. Aviva General Insurance Company, 2023 CanLII 30771 (ONLAT) that given this omission, I am unable to properly assess how the goals of the OCF-18 are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

25I find that the applicant has not met her burden of proof to establish the reasonableness and necessity of the treatment plan.

Outstanding balance of $220.00 for OCF-18s relating to neurological assessment and psychological assessment

26The applicant has not established that the denied $220.00 in transportation expenses are reasonable and necessary.

27The applicant submitted an OCF-18 dated April 6, 2020 for a neurological assessment and an OCF-18 dated March 2, 2020 for a psychological assessment. The respondent denied the portion of the OCF-18s relating to travel expenses. The applicant argues that she is entitled to the outstanding balance, since the assessments were conducted more than 100 km from her home.

28I agree with the respondent that the applicant has not established entitlement to the travel expenses. No evidence was provided by the applicant as to the costs she had incurred in travelling to the assessments. The applicant did not provide any invoices or receipts or specify in her submissions what mode of transportation was used. Without specific submissions or evidence on this point, I am unable to determine whether the cost of the travel to and from the assessments was reasonable and necessary.

The OCF-18 in the amount of $1,779.32 for physiotherapy and acupuncture services is not reasonable and necessary

29The applicant’s chiropractor Dr. Topos submitted an OCF-18 dated October 12, 2021 proposing 12 sessions of physiotherapy and acupuncture treatment. The applicant submits that this physical therapy is needed to address her chronic shoulder, back and neck pain. She points to her various self-reports to her s. 25 assessors that she continued to suffer from chronic pain post-accident. The respondent denied the OCF-18 on the basis of the s. 44 physiatry assessment of Dr. Berbrayer, who found that further facility-based treatment was not required for the applicant’s soft tissue injuries.

30The applicant has not led sufficient evidence to establish entitlement to the proposed treatment. Although the applicant reported to various assessors that she had attended physiotherapy, massage or chiropractic treatment regularly throughout the years post-accident, no records have been provided from any treating clinic. The OCF-18 itself specifies that the applicant had shown some improvement with prior courses of treatment, but no progress reports or session notes detailing such previous treatment were submitted. Particularly in the case of multiple courses of ongoing therapeutic treatment, evidence is required to establish the efficacy of continued treatment, years after the accident.

31Moreover, the applicant does not direct me to any CNR entry where her family physician recommended physiotherapy or acupuncture treatment at the time the OCF-18 was submitted. The applicant points to the psychoeducational report of Dr. Lobo and the s. 25 psychological assessment of Dr. Shaul both of whom referenced her chronic pain. However, I agree with the respondent that neither of these assessors recommended acupuncture or physiotherapy. It is not sufficient for an applicant to establish that she suffers from an ongoing impairment. Rather, specific supporting evidence is also required to establish that continued treatment is effectively addressing the accident-related impairment. The applicant has not led sufficient evidence in this regard.

The applicant has not established entitlement to the denied expenses listed in the OCF-6 dated March 18, 2021

32The applicant submitted an OCF-6 listing various expenses and services. By way of letter dated April 12, 2021, the respondent approved an optometry examination and an acupuncture visit, but denied the remaining expenses requesting additional information. The correspondence stated that the denied expenses related to skin products and creams or were vitamins, minerals, supplements and tinctures recommended by Dr. Newell, who was a skin strategist. The respondent requested additional information as to the specific expenses and the updated CNRs of Dr. Fogal, the applicant’s family physician, to determine whether the products had been prescribed.

33The applicant has not provided any submissions as to whether this requested information had been provided to the respondent. Nor has the applicant provided specific submissions as to the reasonableness and necessity of the proposed expenses. I agree with the respondent that many of the proposed expenses appear to relate to skin care products. The respondent further submits that it is unclear whether the applicant’s naturopath Dr. Newell prescribed the vitamins and supplements or whether Dr. Newell was even permitted to prescribe such products pursuant to the Naturopathy Act, 2007, c 10. The applicant has not provided any specific submissions or reply to address the respondent’s arguments or to clarify what the proposed expenses were.

34The applicant’s sole argument on the issue of the OCF-6 relates to the timing of the respondent’s denial. The applicant submits that the respondent failed to comply with the 10-day limitation period in the Schedule, and is therefore obliged to pay for all the incurred expenses. The applicant did not reference a specific section of the Schedule in support of her position. I agree with the respondent that while s. 38(8) of the Schedule requires that an insurer respond to a treatment and assessment plan (OCF-18) within 10 business days, the section does not specify that this time limitation similarly applies to expense claim forms (OCF-6).

35The applicant does not direct me to any statutory authority or Tribunal caselaw in support of her argument that a 10 day limitation period extends to expense claim forms. Further, without any specific submissions or evidence as to the reasonableness and necessity of the proposed expenses, I find that the applicant has failed to establish entitlement to the outstanding balance of the OCF-6.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.

Award

37Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

38I find that the respondent is not liable to pay an award. The applicant submits that she is entitled to an award as the respondent failed to respond to her OCF-6 within 10 days and acted in a “highhanded” manner when it failed to accept the proposed services in her attendant care assessment.

39However, as previously noted, the applicant has not established that the respondent was required to respond to an expense claim form within 10 days. Further, I do not agree with the applicant that simply because an insurer has approved the cost of a claimant’s attendant care assessment, it is obliged to accept the proposed services and cannot request its own s. 44 assessment. I do not find that the applicant has established a basis for an award.

ORDER

40For the reasons cited above I find that:

i. The applicant is not entitled to a non-earner benefit;

ii. The applicant is not entitled to attendant care benefits;

iii. The applicant is not entitled to the OCF-18s in dispute, or interest;

iv. The applicant is not entitled to the outstanding expenses listed in the OCF-6 form; and

v. The respondent is not liable to pay an award.