Citation: Hasic v. Aviva General Insurance, 2024 ONLAT 21-011424/AABS

Licence Appeal Tribunal File Number: 21-011424/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:

Sinan Hasic

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Fatema Lotia, Counsel

For the Respondent:

Nabila Majidzadeh, Counsel

HEARD:

By Way of Written Submissions

1Sinan Hasic (the "applicant") was involved in an automobile accident on May 19, 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 Aviva General Insurance (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:

Is the applicant entitled to attendant care benefits ("ACBs") of $1,973.82 per month for the period of August 1, 2021, to date and ongoing?
Is the applicant entitled to non-earner benefits ("NEB") in the amount of $185.00 per week for the period from January 11, 2022, to May 19, 2022?¹
Is the applicant entitled to $5,958.95 for physiotherapy services proposed in a treatment plan/OCF-18 ("OCF-18") by physiotherapist, Ms. Moss, submitted on June 8, 2021, and denied on July 2, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant is not entitled to ACBs.

ii. The applicant is entitled to NEB for the time period of July 13, 2020, to July 27, 2020. The applicant is not entitled to NEB for the remaining time period.

iii. The applicant is not entitled to physiotherapy services. As a result, he is not entitled to interest.

ANALYSIS

The applicant's pre-existing workplace injury

4The applicant had a significant pre-existing workplace injury prior to this accident, which will be outlined now, and will be addressed again below when determining entitlement to the benefits in dispute.

5On February 21, 2019, the applicant was significantly injured in a workplace incident. As shown in the medical records from Oakville Trafalgar Memorial Hospital, as a result of the workplace incident, the applicant sustained: a C6 complex burst fracture, fractures of the cervical spine involving C1 through to C5, compression of the cord, dexterity issues with his hands, bilateral arm weakness, which was more pronounced on the right side, including grip weakness in both hands, weakness in his right and left legs, and Major Depressive Disorder. The applicant subsequently underwent surgery for his cervical spine.

6The records also show that the applicant received PSW services on a daily basis as a result of his workplace injury, and that he required mobility aids, like a walker for long distances and a cane for short distances.

7On February 3, 2020 (approximately three months before this car accident), Dr. Yousry Gabrail, the applicant's family physician, completed a medical report for an application for Canada Pension Plan Disability Benefit ("CPP-D"). He opined the applicant's prognosis from the workplace injury would remain the same despite the passage of time and the applicant would be unable to return to work.

The applicant is not entitled to ACBs

8I find that the applicant has not established he requires ACBs for the time period in dispute as a result of the injuries sustained in the accident.

9Section 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 ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs ("Form-1").

10The applicant submits he sustained injuries to his: knees, right hip, back, multi-level foraminal stenosis, disc bulges, pain in his lower limbs, further mobility issues, limitation of activities, anxiety, low mood, increased mobility issues, depressive episodes, and cognitive impairments as a result of the accident. The applicant further submits that the subject accident exacerbated his pre-existing conditions. As a result, the applicant submits that he is entitled to ongoing ACBs. To this end, the applicant relies on the physiotherapy assessment, dated December 7, 2020, completed by Dr. Elly Baker, physiotherapist, a s. 25 occupational therapist ("OT") reassessment report and updated Form 1 by Ms. Stacy Schincariol, dated February 8, 2021, and a Rebuttal Report by Ms. Schincariol, dated September 14, 2021.

11In response, the respondent submits that the applicant has failed to prove he requires ACBs as a result of impairments from this accident. Moreover, the respondent submits that the applicant has not provided evidence to support that the needs identified in the Form 1 were caused by the accident, as it is clear that he needed assistance with all these tasks prior to the accident. To this end, the respondent relies on three separate s. 44 reports by Dr. Esmat Dessouki, orthopaedic surgeon, Dr. Rakesh Ratti, psychologist, and Ms. Vinita Tandon, OT.

12The applicant relies on the OT reassessment report and updated Form 1, dated February 8, 2021, and prepared by Ms. Schincariol. Ms. Schincariol recommended the following:

i. Dressing: assistance required with dressing, 35 minutes per week;

ii. Undressing: assistance required with undressing/changing, 35 minutes per week;

iii. Feeding: prepare the applicant for meals (including transferring to an appropriate location), for 280 minutes per week;

iv. Mobility: assist applicant from a sitting position, and supervise/assist in walking, for 525 minutes per week;

v. Emotional Support: requires increased emotional support from family for 630 minutes per week

vi. Basic Supervisory Care: assist applicant in an event of an emergency or needs custodial care changes due to changes in behavior for 210 minutes per week;

vii. Exercise: assist applicant with prescribed exercise/stretching program for 60 minutes per week; and

viii. Bathing: transfer applicant to and from bed, wheelchair or Hoyer lifts to bathtub or shower for 70 minutes per week.

13I am not persuaded that the applicant requires 70 minutes per week of dressing and undressing as a result of the accident. The applicant advised Ms. Schincariol that he has difficulty with these tasks following the accident as a result of back pain/spasms and limited range of motion in his lumbar spine, which resulted in him not being able to bend. However, the applicant has not directed me to other evidence, like the records of Dr. Gabrial, or Dr. Mohammad Yahia, neurologist, that supports that these functional limitations are as a result of the accident.

14For example, the applicant met with Dr. Gabrial on May 25, 2020, August 24, 2020, June 27, 2021, and August 21, 2021, and there is no reference to whether the subject accident aggravated the applicant's pre-existing workplace injury, nor did Dr. Gabrial recommend that the applicant required assistance with dressing/undressing as a result of back pain from this accident.

15In my view, the record of Dr. Yahia, dated February 10, 2022, also does not support that the applicant requires dressing/undressing assistance as a result of the accident. Firstly, there was no reference to whether the applicant required this assistance as a result of the accident. In addition, while Dr. Yahia noted that the applicant was managing "okay" from his prior workplace injury before being involved in the subject accident, in my view, this is not consistent with the medical report completed by Dr. Gabrial approximately three months before the accident. As noted above, Dr. Gabrial concluded in his medical report that the applicant had permanent bilateral weakness of his lower limbs and chronic neurogenic pain of the lower limbs which he opined would remain the same and was continuous despite the passage of time.

16Moreover, while I acknowledge that Dr. Yahia concluded that the applicant had lower back pain and lumbar spine degenerative disc disease, he did not provide a definite opinion of the cause of these impairments. In addition, prior to the accident, the x-ray dated February 21, 2019, of the lumbar spine showed that the applicant had multilevel degeneration of the lumbar spine with advanced degenerative disc disease at L4-L5 and L5-S1. I acknowledge that Dr. Yahia reviewed the MRI of the lumbar spine conducted on October 5, 2020, which revealed multilevel degeneration of the lumbar spine with moderate central stenosis at L3-L4 and multilevel lumbar foraminal stenosis, however he did not provide an opinion of whether this was related to the accident or not.

17I find Ms. Schincariol's rebuttal report, dated September 14, 2021, which the applicant relies on, is inconsistent with the applicant's pre-accident records. Ms. Schincariol, in her report, dated September 14, 2021, noted that the applicant reported that he was independent with his lower body dressing prior to this accident, however the pre-accident personal support worker ("PSW") records show that the applicant required assistance with his upper and lower body as a result of his pre-existing workplace injury. Accordingly, I place little weight on Ms. Schincariol's rebuttal report.

18I also find that the bulk of the evidence shows that the applicant's dressing/undressing assistance has remained the same since his pre-accident workplace injury. The applicant has self-reported to s. 44 assessor, Dr. Ratti, psychologist, on July 15, 2021, that his dressing assistance has remained unchanged since the pre-existing workplace injury. The applicant also advised s. 44 assessor, Ms. Tandon, that on July 15, 2021, that he received the same amount of dressing/undressing assistance as he did pre-accident.

19While the applicant submits that he received attendant care support from a PSW from Family Oriented Rehabilitation Services who attended 3 times per week at 4 hours per session, he did not provide these records, nor did he clarify which services were provided. In my view, the post-accident PSW records would have been beneficial for the Tribunal to determine whether the applicant required additional assistance with dressing/undressing following the accident.

20I am not persuaded that the applicant requires 280 minutes per week of assistance with feeding as a result of the accident.

21In my view, the applicant in his own submissions contradicted his self-reporting to Ms. Schincariol. The applicant argued that his family members bring additional meals that he can keep in the fridge and microwave independently. However, Ms. Schincariol in her reports, dated February 8, 2021, and September 14, 2021, opined largely based on the self-reporting of the applicant that he was unable to resume in his pre-accident participation in meal preparations, which included preparing light meals, heating up soup in the microwave, or preparing a hot dog on the stove top as a result of back pain, balance impairments and reduced right-hand grip. Ms. Schincariol further noted that the applicant's PSW and family were heating food for the applicant, bringing ready made food or ordering take out for dinner every night for him. As such, there is inconsistency with respect to whether the applicant is independent with meal preparation following the accident.

22Moreover, the bulk of the medical evidence does not support that the applicant requires additional feeding assistance as a result of the accident. The records of Dr. Gabrial and Dr. Yahia do not support that as a result of the accident, the applicant is unable to complete light meal preparation or heat up food. Moreover, neither Dr. Gabrial nor Dr. Yahia have opined that the applicant requires additional assistance with feeding as a result of the accident.

23The applicant has also not produced sufficient evidence that he requires additional assistance with feeding following the accident. While the applicant submitted that his family arranged for and paid for prepared meals from "Meals on Wheels" following the accident, he did not tender these records as evidence for the hearing. It is well settled that submissions do not constitute as evidence.

24I also prefer the s. 44 report of Ms. Tandon over Ms. Schincariol, as she reviewed an extensive amount of medical documentation, including the applicant's pre-accident records, and opined that assistance with this task is not required in relation to an ongoing accident-related impairment. In my view, this is consistent with the bulk of the evidence, like the records of Dr. Gabrial and Dr. Yahia.

25I find that the applicant has not led sufficient evidence that he has further mobility issues as a result of the accident, and as a result requires personal care assistance for this. While I acknowledge that the applicant submits that he has further mobility issues following this accident, I am not persuaded by the reports of Ms. Schincariol who concluded largely based on the applicant's self-reporting that the applicant requires supervision for community ambulation and transfers as he has difficulty with walking following the accident and relies heavily on a walker. Ms. Schincariol did not review the applicant's extensive pre accident records or the PSW records.

26The records of the applicant's pre-accident PSW provider show that he required a walker prior to the accident for long distances and a cane for short distances. Moreover, Dr. Gabrial in his medical report noted that the applicant had difficulty with standing and walking, and that he can slowly walk with the help of a walker.

27The records of Dr. Gabrial and Dr. Yahia, also do not support the applicant's position that he has increased mobility issues following the accident. In the records produced, neither Dr. Gabrial nor Dr. Yahia opined that the applicant had further mobility issues following the accident. In fact, on August 22, 2020, and October 22, 2020, Dr. Gabrial recommended that the applicant return to regular activities gradually and mild gradual exercise.

28I also prefer the s. 44 reports of Ms. Tandon, and Dr. Dessouki over the medical evidence submitted by the applicant. They reviewed an extensive amount of medical documentation, including the applicant's pre-accident records and the records of the applicant's pre-accident PSW provider. Based on a thorough review of the medical evidence on file, and an examination with the applicant, they concluded that the applicant does not suffer an impairment as a direct result of the accident for which he requires an aide or assistant to complete his personal care duties. In my view, this is also consistent with the other medical evidence, like Dr. Gabrial's records, and Dr. Yahia's records.

29The applicant has not produced persuasive medical evidence to support his self-reporting to Ms. Schincariol that he requires emotional care from his family members following the accident. The applicant made no submissions, nor did he point me to medical evidence that demonstrates that he requires emotional support as a result of psychological injuries from the accident. Ms. Schincariol's report, dated February 8, 2021, is largely based on the self-reporting of the applicant and is not consistent with the other medical evidence on file.

30In particular, the applicant's family physician, Dr. Gabrial on March 31, 2021, noted that the applicant's depression was controlled, his energy level was increased, and his concentration was significantly increased. More importantly, Dr. Gabrial, did not make recommendations with respect to the applicant requiring emotional support as a result of the accident.

31I also prefer the s. 44 report of Dr. Ratti, who as noted above, reviewed an extensive amount of the applicant's pre-existing records, unlike Ms. Schincariol. On March 18, 2021, Dr. Ratti concluded that the applicant meets the diagnosis of Major Depressive Disorder, Mild and Single Episode that appeared to be a cumulative result of the subject accident and the pre-existing workplace injury, but this did not result in functional limitations and that he did not require an aide or assistant to complete his personal care duties.

32The applicant has not established that he requires basic supervisory care as he has not established that he sustained cognitive impairments as a result of the accident. The applicant did not make submissions or point me to evidence beyond the Form 1, and Rebuttal Report, to demonstrate that he requires basic supervisory care as a result of alleged cognitive impairments from the accident. The applicant did not seek medical attention from Dr. Gabrial for cognitive impairments following this accident, nor did Dr. Gabrial diagnose the applicant with cognitive impairments as a result of the accident. Moreover, on July 15, 2021, the applicant advised Dr. Ratti, that "his memory is not bad" following the accident and his concentration is normal. The emergency records from Milton Hospital also noted that there was no loss of consciousness or head trauma following the accident.

33In addition, Dr. Yahia, neurologist, met with the applicant on February 10, 2022, and did not note that the applicant had cognitive impairments as a result of the accident. As such, I am not persuaded that the applicant requires basic supervisory care, as he has not demonstrated that he sustained cognitive impairments from this accident.

34The applicant has not led sufficient evidence that he requires increased assistance with exercises and bathing following the accident. Beyond his self-reporting, the applicant has not produced other corroborating evidence to support his claims that he was no longer independent with his exercises following the accident. For example, the applicant did not produce the pre-accident and post-accident records from his physiotherapist providers which would have assisted the Tribunal to determine how his ability to participate in exercises has been affected by the accident.

35The applicant has also not produced records beyond his self-reporting to establish that he requires additional assistance with bathing as a result of the accident. The pre-accident PSW provider's records show that he required daily assistance with bathing, had impaired functional mobility and was a fall risk. However, the applicant has not directed me to records from Dr. Gabrial or Dr. Yahia that support he requires additional bathing assistance as a result of the accident.

36The applicant also reported to Dr. Dessouki, on December 17, 2021, that he required assistance with bathing prior to the accident and this remained unchanged since the accident. As such, I am not persuaded that the applicant requires assistance with his bathing and exercises as a result of the accident.

37As I have concluded that the applicant has not demonstrated that he requires ACBs as a result of his accident-related injuries, I do not need to consider whether he incurred ACBs expenses pursuant to s. 3(7)(e) of the Schedule.

The applicant is entitled to NEB for the time period of July 13, 2020, to July 27, 2020

38I find that the applicant is entitled to NEB for the time period of July 13, 2020, to July 27, 2020, as he submitted his first completed OCF-3 to the respondent on July 13, 2020.

39Section 36 of the Schedule outlines the process for claiming a 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 a NEB for any period before the completed OCF-3 is submitted.

40In order for an OCF-3 to be considered complete, it must be filled out and signed by a health practitioner of the applicant's choice. Once the insurer receives that completed OCF-3, it has 10 business days to either pay the benefit, ask for a section 44 assessment, or a request for more information under section 33.

41The applicant submits that he should have been paid for a total period of 82 weeks before his NEB was terminated on January 11, 2022, as the first OCF-3 was submitted on June 1, 2020 (taking into account the 4-week waiting period). Instead, the applicant submits he was paid for 75 weeks in total.

42The respondent submits that the first OCF-3 was submitted via fax on July 13, 2020, and the subsequent OCF-3 on July 30, 2020. The respondent further submits that on November 3, 2020, the applicant was advised that the first payment period for NEB was from July 28, 2020, to November 2, 2020.

43I find that the applicant, pursuant to section 36, was entitled to NEB commencing from when he submitted his first completed OCF-3 on July 13, 2020, via fax. The respondent provided evidence and submitted that the applicant provided an OCF-3 on July 13, 2020, via fax. While I acknowledge that the respondent submits that it requested a completed OCF-3 from the applicant on July 20, 2020, the respondent did not provide submissions on why the first OCF-3 was not completed in accordance with s. 36(2) of the Schedule. Indeed, the correspondence from the respondent, dated July 20, 2020, did not address the first OCF-3 at all, instead it advised the applicant that it received the Application for Accident Benefits ("OCF-1") and the Election of Benefits Form ("OCF-10").

44Moreover, on August 6, 2020, while the respondent confirmed that it received both OCF-3s, it did not raise the issue of whether these OCF-3s were completed or not in accordance with s. 36(2). In my view, the OCF-3 was completed and signed by a health practitioner, as such, it is a completed OCF-3 pursuant to s. 36(2). Accordingly, the applicant was entitled to NEB commencing from the date the completed OCF-3 was submitted to the respondent, which was July 13, 2020.

45I find that the NEB entitlement during the time period of July 13, 2020, to July 27, 2020, was not suspended due to non-compliance with s. 33 of the Schedule. The respondent submits that on August 6, 2020, it advised the applicant it had not received the information requested pursuant to s. 33 and that the NEB was suspended. The respondent in its correspondence, dated November 3, 2020, advised the applicant that his first payment period for NEB was from July 28, 2020, to November 2, 2020. The respondent did not provide an explanation in its correspondence, dated November 3, 2020, as to why the first payment period started on July 28, 2020, instead of the date of the receipt of the first completed OCF-3. As such, I find that the applicant is entitled to NEB from the time period of July 13, 2020, to July 27, 2020.

The applicant is not entitled to NEB for the time period of January 11, 2022, to May 19, 2022

46I find that the applicant has not met his evidentiary onus to prove on a balance of probabilities that he suffers a complete inability to carry on a normal life as a result of the accident.

47Section 12(1) 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 focuses on a comparison of the applicant's pre-and post-accident activities.

48The applicant submits he had pre-existing issues from his workplace injury, however, he was largely functional, and was able to live most aspects of his life independently. The applicant further submits that he has ongoing functional, psych-emotional, and cognitive impairments as a result of the accident, and that these injuries and impairments have exacerbated previous injuries and impairment, pushing him over into the realm of disability. To support this position, the applicant relies on the Disability Certificate/OCF-3 dated June 1, 2020, and July 28, 2020, and a s. 25 report, by Ms. Schincariol.

49The respondent submits that the applicant does not suffer a complete inability to carry on a normal life as a result of the accident. It relies on two separate s. 44 reports by Dr. Dessouki, and Dr. Ratti to support its position that regardless of the subject accident the current level of impaired function would still exist, and that the applicant's psychological impairments do not result in a complete inability to carry on a normal life. The respondent also relies on the clinical notes and records of Dr. Gabrial.

50The applicant's submissions provide an overview of his injuries, and he relies on his self-reporting to Ms. Schincariol to support that he has not gone shopping, walking to the corner store or coffee shop, or attended family members homes for dinner following the accident. What is absent from the applicant's submissions and evidence is a thorough analysis with respect to the activities the applicant could do before the accident compared to those he cannot do post-accident, and whether this is as a result of the accident.

51I place little weight on the OCF-3s, dated June 1, 2020, and July 28, 2020, as there is no discussion of the applicant's pre- and post-accident activities. In addition, the OCF-3s do not provide a description of what the applicant was able to do prior to the accident and what he is unable to do as a result of the physical injuries he sustained from this accident.

52I am not persuaded by the report of Ms. Schincariol, dated February 8, 2021. Ms. Schincariol did not outline all the activities the applicant engaged in before the accident, or which activities were most important to him and, nor did she provide a thorough analysis of the applicant's pre-accident and post-accident function.

53In my view, the applicant was also vague in his self-reporting on why he could not do shopping, walk to the corner store or coffee shop, or attend family dinners, other than to state it was due to pain and reduced walking tolerance. Moreover, Ms. Schincariol's report did not provide a clear contrast of the applicant's functional ability prior to and after the accident, nor did she provide an opinion of whether the applicant was unable to do these activities as a result of injuries sustained from the accident.

54Ms. Schincariol also did not review the applicant's extensive pre-accident records or his post-accident medical records, which in my view, further undermines her report. For example, Ms. Schincariol observed that the applicant's right hand was slower than the left hand, however if she had reviewed the records of Oakville Trafalgar Memorial Hospital, she would have noted that the applicant had dexterity issues with his hand, bilateral arm weakness and grip, and weakness in both hands prior to the accident. Moreover, if Ms. Schincariol had reviewed the medical report prepared by Dr. Gabrial, approximately three months before this accident, she would have noted that the applicant already had difficulty with standing and walking and could slowly walk with the help of a walker. As well, on February 20, 2020 (shortly before this accident), Dr. Gabrial noted that the applicant was not able to do his daily tasks due to his difficulty sleeping. Accordingly, this report is not helpful in supporting the applicant's claim for NEB.

55In order to qualify for NEB, it is not sufficient for the applicant to demonstrate that he has sustained injuries, that he suffers from physical pain, or that his pre-existing injuries have been aggravated. What must be proven is that the injuries and associated pain were directly caused by this accident and have significantly interfered with almost all of the applicant's pre-accident daily activities. I find in this regard the applicant's evidence is lacking.

56The applicant has not directed me to an entry from Dr. Gabrial's records that supports his position that his accident-related injury to his lower back, and lower limbs, have resulted in further mobility issues and limitation of activities. For example, on October 22, 2020, Dr. Gabrial recommended a modification of the applicant's activities and more importantly, that the applicant should return to regular activities gradually.

57However, Dr. Gabrial did not opine whether these modifications were required as a result of the accident, the applicant's pre-existing conditions or a combination of both. In any event, stating that the applicant requires modification of his daily activities in my view is not the same as a complete inability. In addition, on August 12, 2021, while it was noted that the applicant had chronic back pain, there was no discussion of whether this was from the subject accident or the pre-existing workplace injury or more importantly, whether this prevented him from engaging in substantially all of the life tasks that he was engaged in prior to the accident.

58I find that the record of Dr. Yahia, dated February 10, 2022, does not assist the applicant's position that he has reduced walking tolerance following this accident, and this results in a complete inability to live a normal life. While Dr. Yahia noted that the applicant had difficulty walking "recently", he did not opine whether this was a result of the accident, and he did not note that the applicant was unable to do shopping, walk to the coffee shop or corner store, or attend family dinners as a result.

59Also, as noted above, I am not persuaded that the MRI results of the lumbar spine, dated October 5, 2020, are as a result of the subject accident. While I acknowledge that the applicant relies on Dr. Baker's report, dated December 11, 2020, to support his position that these are "new spinal injuries", I prefer the record of Dr. Yahia, February 10, 2022, who reviewed the MRI, dated October 5, 2020, and did not provide an opinion of whether this was related to the accident. Moreover, the applicant has not referred me to an entry from Dr. Gabriel's records that supports he sustained these spinal impairments as a result of the accident. In any event, the applicant has not referred me to entries from Dr. Gabrial or Dr. Yahia's records that support that he is unable to do his pre-accident activities as a result of these spinal impairments.

60I also note that the records of Dr. Gabrial do not support the applicant's position that his psycho-emotional impairments prevent him from engaging in the activities he normally engaged in pre-accident. In fact, on March 31, 2021, Dr. Gabrial noted that the applicant's depression was stable, and getting better and that the applicant had an increased interest in activities, and that his energy level had increased. In my view, this record from Dr. Gabrial, shows that the applicant's psychological impairments from this accident do not substantially prevent him from engaging in substantially all of the life tasks that he engaged in before the accident.

61While I further acknowledge that the applicant submits he has cognitive impairments and as a result he appears to submit that he suffers a complete inability to live a normal life, he has not directed me to medical evidence to support this position. As noted above, Dr. Yahia, on February 10, 2022, did not diagnose the applicant with cognitive impairments as a result of the accident.

62Lastly, the applicant has not pointed me to medical evidence that rebuts Dr. Dessouki's conclusion that regardless of the accident, the current level of impaired function would still exist due to the applicant's pre-accident history. Nor has the applicant pointed me to medical evidence that rebuts Dr. Ratti's conclusion that, from a psychological perspective, the applicant does not have a complete inability to carry on a normal life as a result of the accident.

63As a result, I find that the applicant has not succeeded in demonstrating that he suffered a complete inability to carry on a normal life as a result of this accident. Therefore, he is not entitled to NEB.

The applicant is not entitled to an OCF-18 for physiotherapy services in the amount of $5,958.95

64I find that the applicant has failed to demonstrate that the OCF-18 proposing physiotherapy services is reasonable and necessary.

65To receive payment for a treatment and assessment plan pursuant to sections 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. In order to do so, an applicant must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall costs of achieving the goals is reasonable.

66The applicant submits that physiotherapy treatment interventions are required to improve his overall mobility and functional independence. To support this position, the applicant relies on the OCF-18, submitted on June 8, 2021, and a physiotherapy assessment, dated December 7, 2020, and completed by Dr. Baker, physiotherapist.

67The respondent submits that the applicant has failed to meet his evidentiary onus and has not provided evidence contemporaneous to the OCF-18 in dispute showing that the proposed physiotherapy treatment is reasonable and necessary as a result of the accident. The respondent further submits that the clinical notes and records of Dr. Gabrial around the time the OCF-18 was submitted does not recommend the proposed services. Lastly, the respondent relies on the s. 44 report by Dr. Dessouki.

68It is well settled that the default test for causation to determine benefits remains the "but for" test, except in exceptional circumstances. The applicant referred to several non-binding authorities from FSCO which indicated that material contribution is the correct test for causation. I disagree, as the primary causation test is the "but for" test, and the material contribution test is applicable only in limited circumstances. The applicant has failed to demonstrate that his matter is exceptional, and the material contribution test is applicable. However, the applicant does not need to demonstrate that the accident is the sole cause for his injuries, but rather the accident was a necessary cause (see: Sabadash v. State Farm et al., 2019 ONSC 1121).

69I find that the applicant has not met his evidentiary onus to demonstrate that this OCF-18 is reasonable and necessary. I acknowledge that the applicant submits that he requires physiotherapy treatment to assist with improving his overall mobility and functional independence, however, I am not persuaded that he has sustained reduced mobility or functional ability as a result of the accident. While Dr. Gabrial's record on May 25, 2020, notes that the applicant sustained back pain due to muscle strain from the accident, he has not provided a medical opinion of whether the applicant's ongoing chronic back pain is a result of the accident, or whether the applicant has further reduced mobility following the accident. Moreover, the applicant has not pointed me to a record of Dr. Gabrial where he recommended physiotherapy to treat the applicant's accident-related injuries. As noted above, the applicant's extensive pre-accident records show that he had impaired functional mobility and was a fall risk as a result of his pre-accident workplace injury. The pre-accident PSW records also show that the applicant required a walker, and a cane prior to the accident.

70In my opinion, the record of Dr. Yahia, dated February 10, 2022, also does not assist the applicant to establish that he has further reduced mobility or reduced functional ability following this accident. On February 10, 2022, Dr. Yahia noted that the applicant had more spasticity in his lower limbs and difficulty walking, however he did not provide an opinion of whether this was in relation to the accident, his pre-existing conditions or a combination of both.

71The applicant is largely relying on the report of Dr. Baker to support that he has further reduced mobility and functional ability following this accident, and as a result requires physiotherapy treatment. I am not persuaded by Dr. Baker's report for the following reasons. Firstly, Dr. Baker did not review the applicant's pre-accident PSW records, and relied solely on the applicant's self-reporting that he did not require mobility devices indoors, when the records show he required a cane for short distances and a walker for longer distances. Moreover, while Dr. Baker concluded that the applicant was a high fall risk, the records of the applicant's pre-accident PSW provider also showed that he was a fall risk prior to the accident. Further, the medical report completed by Dr. Gabrial shortly before this accident, also showed that the applicant had numerous functional and mobility impairments prior to the accident. As a result, I place limited weight on Dr. Baker's conclusion that the proposed OCF-18 will increase the applicant's mobility and functional independence.

72The applicant also did not address whether the costs and duration of the OCF-18 are reasonable and necessary.

73As a result, I see no reason to interfere with Dr. Dessouki's conclusion that the applicant had reached maximum medical recovery improvement and that there is no objective evidence of residual musculoskeletal impairment attributable to the subject accident. For these reasons, I find the applicant has not demonstrated that the proposed physiotherapy services are reasonable or necessary.

Interest

74As no benefits are overdue, no interest is payable pursuant to s. 51 of the Schedule.

ORDER

75For the reasons set out above, I find that:

i. The applicant is not entitled to ACBs.

ii. The applicant is entitled to NEB for the time period of July 13, 2020, to July 27, 2020. The applicant is not entitled to NEB for the remaining time period.

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

iv. The application is dismissed.

Released: January 30, 2024