Parnell v. Co-operators General Insurance Company, 2024 CanLII 69897

Licence Appeal Tribunal File Number: 21-015019/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:

George Parnell

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Jacqueline M. Harper

APPEARANCES:

For the Applicant: David Hayward, Counsel

For the Respondent: Amanda Lennox, Counsel

HEARD: In Writing

OVERVIEW

1The applicant was involved in an automobile accident on August 20, 2018 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 and including amendments effective June 1, 2016 (the “Schedule”)¹. The applicant was denied accident benefits by the respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. The matter has proceeded to a written hearing.

ISSES

2The issues in dispute are as follows:

a. Is the applicant entitled to an income replacement benefit of $400.00 per week from November 1, 2021, to date and ongoing? Quantum and post-104 week entitlement are in dispute.

b. Is the applicant entitled to $3,924.07 for chiropractic services, proposed by Cobblestone Medicine and Rehabilitation Inc. (“CMRI”) in a treatment plan/OCF-18 (“plan”) submitted on September 21, 2021, and denied on December 06, 2021?

c. Is the applicant entitled to $2,456.20 for chiropractic services, proposed by CMRI in a plan submitted on October 14, 2021, and denied on December 06, 2021?

d. Is the applicant entitled to $1,695.75 for physiotherapy services, proposed by CMRI in a plan submitted on November 22, 2021, and denied on December 06, 2021?

e. 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?

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

RESULT

3I find as follows:

a. that the applicant is not entitled to income replacement benefits from November 1, 2021 to date and ongoing;

b. that the treatment in the above-noted treatment plans is reasonable and necessary, that is, $3,924.07 and $2,456.20 for chiropractic services and $1,695.75 for physiotherapy services;

c. that the respondent is liable to pay an award pursuant to section 10 of O. Reg. 664 in the amount of $1,211.40; and

d. that the applicant is entitled to the payment of interest on the overdue payment of benefits.

BACKGROUND

4The applicant was involved in a head-on motor vehicle collision at age 27. He was transported by ambulance to Cambridge Memorial Hospital. His injuries included a fractured and dislocated ankle, a concussion, facial lacerations and multiple hematomas.²

5As a result of his injuries, the applicant was unable to return to his position as a wildlife technician. The pre-accident work required carpentry and construction skills, heavy strength levels and being at heights and on ladders. The respondent paid the applicant income replacement benefits in the amount of $400.00 per week which were terminated on November 1, 2021. The applicant was denied treatment recommended in 3 treatment plans by CMRI.

ANALYSIS

INCOME REPLACEMENT BENEFITS

Is the applicant entitled to post-104 income replacement benefits?

6Entitlement to an income replacement benefit is set out in sections 5 and 6 of the Schedule. Section 6(2)(b) provides that the insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. The applicant bears the onus of establishing, on a balance of probabilities, that he is entitled to the income replacement benefit claimed based on the legal test.

7Entitlement to income replacement benefits for the first 104 weeks after the accident is not at issue. The applicant met the section 5(1)1(i) Schedule test of being substantially unable to perform the essential tasks of his previous employment as a result of injuries sustained from the accident. Furthermore, the respondent is not seeking repayment for amounts paid for the period to November 1, 2021 confirmed by letters dated February 7, 2022³ and March 10, 2022.⁴

8Regarding entitlement to income replacement benefits after the initial 104 weeks, from November 1, 2021 and onward, I find that the applicant has failed to establish, on a balance of probabilities, that he had a complete inability to engage in any employment for which he is reasonably suited by education, training or experience pursuant to section 6(2)(b) of the Schedule. Consequently, the applicant is not entitled to income replacement benefits from November 1, 2021 and onward. While I accept that the applicant sustained a serious ankle fracture, there is insufficient evidence that the applicant meets the legal test.

9I have reviewed the evidence submitted. A large portion of it relates to the applicant’s abilities in connection with his entitlement to pre-accident employment. Based on the diagnostic imaging, the applicant sustained a comminuted fracture at the medial malleolus and medial subluxation/dislocation seen at the talonavicular articulation,⁵ along with associated subcutaneous edema and soft tissue swelling.⁶ He was non-weight bearing for 3 months and had 2 different casts from which he weaned himself off in January 2019.

10By May 27, 2019, the applicant had post-traumatic arthritic changes in his ankle joint.⁷ By May 30, 2019, the applicant is noted as having a decrease in functioning. The section 25 vocational situational and functional capacity assessment completed by Maria Ross, noted a reduction in his strength level, significantly impacted by his reduced right ankle range of motion, difficulty with walking, particularly with changes in terrain which would cause him shooting pain, as well as significant difficulties with crouching, stair climbing, prolonged forward bending and carrying. He had reduced right foot balance and relied on hand support on the handrail when ambulating stairs. He also experienced increased anxiety due to his injuries.⁸ Ms. Ross’s conclusion was that the applicant’s “pain related behaviour would negatively impact on his ability to maintain workplace productivity in certain working environments”.⁹ The report noted that the applicant was suffering “a substantial inability to engage in his pre-accident employment”¹⁰, required ongoing treatment and with multi-disciplinary treatment and associated improvement in function, “in future he has the potential to return to employment in an occupation more suitable to his physical limitations.”¹¹ She noted that the applicant “would require the flexibility to alternate his position and should avoid long periods of prolonged weight bearing through his right lower extremity”.¹²

11According to Ms. Ross, the applicant’s motivation, work ethic, cognitive skills and average vocational aptitudes would make him a good candidate for vocational retraining.¹³ To that end, she submitted a treatment plan dated July 10, 2019, in the amount of $4,044.86 for vocational rehabilitation involving the cost of the real estate courses and associated fees.¹⁴ The applicant had already begun courses to retrain as a real estate agent in which he expressed an interest.

12The applicant submitted evidence of psychological injuries. The section 25 psychological assessment report dated October 31, 2019 by Dr. Irina Murariu, psychologist, diagnosed the applicant as suffering from moderate to severe depressive episodes, PTSD, passenger anxiety, chronic pain and limitation of activity due to disability.¹⁵

13Also in relation to the applicant’s abilities for his pre-accident employment, a section 44 assessment was completed. In the report dated November 5, 2019, Dr. Greg Jaroszynski, orthopaedic surgeon, noted a decreased range of motion of the right ankle and subtalar joint. He opined that “it would not be safe to clear him for work until an MRI of the right hindfoot is obtained to assess the degree of abnormality and the potential long term consequences”.¹⁶

14Further, in his assessment report of February 22, 2022, Dr. Jaroszynski cautioned that the applicant “is at an increased risk of progression of post-traumatic arthritis in his right hindfoot and future treatment may be required. At this point though there is no such requirement.”¹⁷

15The section 44 clinical psychologist, Dr. Ratti diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood.¹⁸ Dr. Ratti noted that the applicant’s MPI scores were comparable to what is reported by individuals with chronic pain and concluded that “there was no evidence that psychological factors result in any functional limitations.”¹⁹ The report noted the applicant’s comments of continuing his activities of daily living and recreational activities such as frisbee golf and socializing with friends albeit with pain.²⁰

16The report dated November 5, 2019 from the section 44 registered physiotherapist, Zinnia Lee, concluded that the applicant did not meet the job demands of his pre-accident employment. The applicant had limited range of motion of the cervical spine with extension of the thoracolumbar spine on flexion and extension, as well as bilateral flexion and rotation of the right ankle.²¹

17Dr. Pradeep Alexander, an orthopaedic surgeon for the applicant with respect to his tort claim reported on the applicant’s injuries on December 10, 2020.²² He noted that the applicant had post-traumatic arthritis which affect his ability to stand, walk, climb ladders and stairs and walk on uneven ground, the nature of which is progressive. He further noted that the subtalar joint will become stiffer and more painful decreasing the ability to walk on uneven ground or on an incline or decline. He opined that the applicant will have more frequent arthritic flare ups, eventually lasting for longer periods of time. He discussed the use of orthotics, custom ankle braces and cortisone injections and noted that once these measures fail, he will need surgery and fusion of the joints.²³

18In addition, Dr. Alexander reported that he is concerned “about his ability to walk on uneven ground, an incline, on grass, as well as climb ladders and stairs. These are all components to becoming a successful real estate agent. I am concerned about his ability to successfully show properties to potential clients as his ankle continues to deteriorate, I believe he would be more suited to an office type setting as opposed to walking or showing clients around a home. His job may have to be modified so he does not have to do any walking around houses as this could cause him undue pain in his right ankle.”²⁴ He noted that subtalar dislocations are rare and almost always result in long-term impairment and disability.²⁵

19In his addendum report dated February 28, 2022, Dr. Alexander reported that the MRI of February 3, 2022 revealed the presence of post-traumatic arthritis in both the talonavicular and subtalar joints, with progressive arthritis since the last assessment and signs of arthritic degradation.²⁶ He predicted that within 10 years, the applicant will be reliant on more potent pain medication along with orthotics, custom ankle braces and cortisone injections, eventually requiring a fusion, double fusion or replacement of his ankle if his ankle deteriorates in the future.²⁷

20Dr. C. B. Paitich’s report dated September 16, 2021, an orthopaedic surgeon for the defence in the tort claim, opined on the applicant’s injuries and employment and normal activity functions.²⁸ His prognosis included that the applicant has a permanent impairment and will have ongoing pain. He stated that the applicant could meet the demands of his pre-accident occupation and for the next 10 years at which time, if he experiences degenerative change which progresses, he will not be able to. He further opined that given that the applicant has altered his employment to a more sedentary job, he will have the ability to work as a real estate agent until the age of retirement at 65.

21The applicant completed his retraining as a real estate agent in 2021. He recognized the need and took the initiative to retrain. Royal LePage Brant Realty confirmed by letter dated March 8, 2021 from Jason Tangorra that “the applicant will be working as an independent contractor”.²⁹ In his report of September 16, 2021, Dr. Paitich noted that in March 2021, the applicant began working as a real estate agent and estimated that 70% of his occupation involves office work and 30% of his occupation involves showing residential properties. The applicant reported that he felt capable of working on a full-time basis as a residential real estate agent.³⁰ His realtor tax worksheets were submitted for 2021 to 2022.³¹

22Surveillance was conducted in 2022 with reports dated September 9, 2022 and October 17, 2022.³² The surveillance indicated that, among other things, the applicant was able to walk about on uneven terrain, with and without footwear, go up stairs without using a railing, bend over forward and crouch, balance and ride a unicycle/wagon barefoot, play frisbee golf, drive and carry a bag and a small child. He was also seen stretching, limping and tending to his right foot.

23In consideration of the totality of the evidence and submissions of the parties, I find that the applicant sustained significant injuries from the accident, including a laceration to his face under the jaw and to his nose and a tongue bite.³³ He sustained injury to his back, including a myofascial strain involving his cervical spine and his lumbar spine and contusions to his knees.³⁴ He also suffered from an injury to his ankle which has resulted in disability and chronic pain, causing impairment.³⁵ While the physiotherapy treatment plan dated November 21, 2021 noted that one of the barriers to recovery was chronic regional pain syndrome (“CRPS”), there was no corroborating evidence of a diagnosis of CRPS and therefore, I do not accept this as an outcome.

24Based on the reports of Dr. Alexander and Dr. Jaroszynski which I find to be credible and reliable, I accept that the applicant has post-traumatic arthritis in his right ankle as a result of the accident, the nature of which is progressive and has caused him limitations in his mobility including due to decreased range of motion and chronic pain. I further accept that in years to come, surgery may be required. However, I do not accept that he has sustained a compromise to his ability to walk, stand, drive or do anything with his right ankle to the extent that he has been rendered completely unable to engage in employment or self-employment for which he is reasonably suited by education, training or experience. He has failed to establish that there is no reasonably suitable alternative employment or self-employment position. There is insufficient evidence to meet the test for complete inability as set out at section 6(1)1(i) of the Schedule.

25I find Ms. Ross’s recommendation for vocational training important. The recommendation was in 2019, following a thorough assessment of the applicant noting limitations. Despite the scope of the assessment, the report made no conclusion regarding the applicant being completely unable to engage in any future work. This does not align with the claim that the applicant is completely unable to work and that being a realtor is unsuitable.

26I was less compelled by Dr. Paitich’s evidence regarding the applicant’s physical impairments as he opined that the applicant could return to his pre-accident employment. This was materially different from the opinions of Dr. Alexander and Dr. Jaroszynski.

27Further, while I recognize that there was no section 44 assessment regarding entitlement to post-104 income replacement benefits, none of the medical evidence, including from Dr. Alexander and the applicant’s family doctor, concluded that the applicant suffered a complete inability to engage in any employment or self-employment for which he is reasonably suited. While noting the serious nature of the applicant’s injuries, Dr. Alexander’s opinion included that that the applicant may have difficulty walking on uneven terrain and that his job may have to be modified.³⁶ In addition, the goals listed by the physiotherapist at CMRI, which clinic has treated the applicant for several years, are to return to modified work activities.³⁷ Again, this does not align with someone who has been rendered completely unable to engage in employment.

28Based on the report of both Dr. Murariu and Dr. Ratti, I find that the applicant sustained psychological injuries from the accident. I relied more particularly on the report dated October 31, 2019 of Dr. Murariu since she treated the applicant and would likely have more knowledge of the applicant’s issues. The report did not contain findings that the applicant’s injuries rendered him unable to work and no more than 2 treatment plans for psychological services were submitted to the respondent. Further, Dr. Ratti specifically noted that there was no evidence that psychological factors resulted in any functional limitations.³⁸

29I also considered the applicant’s activities since the accident. The applicant has been able to successfully obtain his real estate licence and is working as a realtor with a brokerage. This is a career that he chose to pursue and which the occupational therapist recommended. He has had listings and earned commission.³⁹ In 2021, he reported that he could do the job full-time which by his estimation consisted of 70% office work and 30% showing homes.⁴⁰ This would reduce the time driving and weight bearing. This is incongruent with the claim of having suffered a complete inability to work in this occupation.

30I accept the contents of the surveillance reports from 2022. I recognize that they are limited to the activities on the days captured and provide snapshots in time of the applicant’s physical abilities. The applicant’s participation in several of the activities shown, particularly walking on uneven terrain, weight bearing for periods of time at least long enough to gather with friends and participate in outdoor activities and lift and walkabout with his child, do not support the position that the applicant is completely unable to engage in any employment or that being a realtor would not be suitable.

31That is not to say that the applicant functions without chronic pain and impairments. I accept that he has to rest, elevate his ankle and take medication for pain, not captured on surveillance. I accept that he may have ongoing psychological issues resulting from the accident. I considered that at the time of the retraining as a realtor, the respondent was still providing treatment funding which allowed the applicant to better manage his pain and limitations. However overall, the evidence does not satisfy the test that the injuries sustained have rendered him completely unable to work in a job for which he is reasonably suited by training, education or experience and in this case, as a realtor.

32I concur with the Divisional Court in Traders General Insurance Company v. Rumball, in that the applicant has not proven that he is suffering from a complete inability to engage in any employment for which he is reasonably suited by education training or experience…”.⁴¹ The legal test for post-104 entitlement is more stringent than the test for pre-104 income replacement benefits – it is a complete inability test as set out in the Schedule.⁴² There is insufficient evidence to make a finding that that the applicant has met the legal test.

33I agree with the Divisional Court in Traders in that it “does not include employment in a competitive, real-world setting, nor does it include any test that suitable employment should be comparable in terms of status and wages”.⁴³ The applicant has been able to retrain to be a realtor, a career from which he earns money and in which he can do a majority of the work out of an office.

34Further, I agree with the Court of Appeal in Burtch that it “is not necessary that the insured person be formally qualified and able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative”.⁴⁴ In addition to the retraining, the applicant has a varied work history which includes physical labour, sales and office work⁴⁵ and the post-104 test includes “suitable by…experience” pursuant to section 6(2)(b) of the Schedule. An occupation for which the applicant already has experience may also be suitable.

Is treatment reasonable and necessary?

35There are 3 treatment plans in dispute. Section 15 of the Schedule limits payment of medical and rehabilitation benefits to reasonable and necessary expenses incurred by or on behalf of the applicant. The applicant must prove, on a balance of probabilities, that the treatment plans are reasonable and necessary. Based on the evidence and submissions of the parties, I find that the treatment plans are reasonable and necessary and the applicant is entitled to treatment set out therein.

36The applicant commenced treatment on October 31, 2018, initially at 3 times per week and continued along with 9 respondent approved treatment plans from November 29, 2018 to June 29, 2021. The medical records of his treating physicians and CMRI noted increased gains with physiotherapy.⁴⁶ I accept that he has done a significant amount to try and recover from his injuries with respect to work and activities. Given the medical evidence and by his own submissions that his pain has been exacerbated by his inability to afford access to ongoing medical treatment, I find the treatment reasonable and necessary.

37I considered that according to the reports of Dr. Alexander and Dr. Jaroszynski,⁴⁷ the applicant was diagnosed with post-traumatic arthritis, with a progressive deteriorating nature and resulting limitations. While Dr. Jaroszynski found that the physiotherapy and chiropractic treatment plans were not needed and that the applicant had achieved maximal medical recovery,⁴⁸ he also cautioned that the applicant “is at increased risk of progression of post-traumatic arthritis in his right hindfoot and future treatment may be required.”⁴⁹ Dr. Jaroszynski does not limit this to being only after surgery.

38According to Dr. Alexander’s report of February 28, 2022, the applicant’s condition had worsened since he saw the applicant initially, based on the MRI of February 3, 2022. Additionally, while the respondent submitted that Dr. Alexander did not provide recommendations for ongoing facility-based treatment in either of his reports, he was not asked to consider the 3 treatment plans and recommended the use of orthotics, braces and injections for pain. Further, only Dr. Jaroszynski opined that the applicant has achieved “maximal medical recovery” but that he will need surgery in the future.

39There is compelling medical evidence of the applicant’s injuries, their progressive nature and chronic pain with progressive arthritis in his ankle.⁵⁰ I find that it is likely that not receiving treatment funding has impacted his ability to perform his employment and activities, including due to chronic pain. Certain activities increase his pain. I accept that he was better able to manage his pain and activities when treatment was available to him.

40There are 2 plans for chiropractic treatment recommended by CMRI. His condition is noted as chronic pain due to injury and surgery. The first plan for chiropractic services dated September 21, 2021 is in the amount of $3,924.07 with goals of pain reduction, increase in strength and increased range of motion. It includes physical rehabilitation and exercise equipment. Functional goals are to return to activities of normal living and pre-accident work activities. Chronic pain is noted as a barrier to recovery. Previous treatment was noted as effective, measured subjectively and objectively, in decreased pain and increased mobility.⁵¹

41The second plan for chiropractic services in dispute is dated October 14, 2021 in the amount of $2,456.20 with goals of pain reduction, increase in strength and increased range of motion. It is predominantly for physical rehabilitation. The functional goals no longer include a return to pre-accident work activities but remain to return to activities of daily living. Chronic pain is again noted as a barrier to recovery. Previous treatment was noted as effective, measured subjectively and objectively, in decreased pain and increased mobility.⁵²

42In addition, there is third treatment plan in dispute. It is for physiotherapy dated November 21, 2021 in the amount of $1,695.75. The goals are listed as pain reduction, increase in strength and increased range of motion. It is predominantly for physical rehabilitation. Functional goals are to return to activities of normal living, return to modified work activities and return to pre-accident work activities. Complex regional pain syndrome, risk for progression of ankle arthritis and chronic condition are listed as barriers to recovery. Previous treatment was noted as effective, measured subjectively, objectively, along with exercise progression tolerance in increased ankle weight bearing and loading tolerance and endurance, decreased pain and increased ankle stability and mobility. Continued treatment is recommended to support the applicant in physiotherapy and exercise and medical devices are recommended and prescribed.⁵³

43In determining whether a treatment plan is reasonable and necessary, I considered N.E. vs. Aviva General Insurance, 2020 CanLII 47487⁵⁴ and goals to be considered as set out in General Accident Assurance Co. of Canada v. Viola, [2000] Carswell Ont. 3453 (F.S.C.O. Arb.) activities.⁵⁵ I find that the applicant’s goals, as identified, are reasonable, they can be met to a reasonable degree of assistance with pain reduction and mobility and the overall costs (not just financial, but also investment of time, etc.) of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment activities.

44While Dr. Alexander does not comment on the current necessity for facility-based treatment, Dr. Jaroszynski confirmed that treatment may be necessary as it progresses.⁵⁶ As noted, it has progressed. Previous treatments have been successful to decrease pain and increase mobility. In addition, I concur with Adjudicator Paluch in F. J. v. Intact Insurance Company, 2020 CanLII 34495 (ONLAT) that effectiveness need not be proven to a level of scientific certainty.⁵⁷ I find that overall function and ability can be barometers with which to measure effectiveness and necessity of treatment.

45Additionally, “pain reduction can be a necessary goal especially when there is a relationship between pain, anxiety and mood”.⁵⁸ The reports from Dr. Murariu and Dr. Ratti both report that the applicant has anxiety and his mood has been affected. Treatment with the goals of pain reduction, as well as increase in strength and increased range of motion is reasonable and necessary.

46I do not accept that he has achieved maximal recovery. The only evidence to support a contrary position is by Dr. Jaroszynski and it is with a caveat. There is sufficient medical evidence from Dr. Alexander and Dr. Jaroszynski that his arthritis has progressed and he may require surgery. Medical evidence supports that the applicant’s pain is chronic and has caused functional impairment. I do not find the respondent’s submissions regarding denying the treatment plans to be compelling in the face of the applicant’s consistent reports of pain from his injuries, supported by the medical evidence together with the treatment plans indicating that goals are being met. I concur with the applicant in recognizing that one of the goals of section 16 of the Schedule is to provide an injured person with the tools necessary to reduce or eliminate the effects of the disability and to facilitate the injured person’s reintegration into his family, the rest of society and the labour market. I find that professionally directed physical therapy as set out will assist to achieve that and it is reasonable and necessary.

INTEREST

Is the respondent liable to pay interest on overdue payments?

47As a result of the above-noted findings, interest with respect to a benefit is due pursuant to s. 51 of the Schedule in connection with the 3 treatment plans.

AWARD

Is the respondent liable to pay an award under section 10 of O. Reg. 664?

48With respect to the applicant’s claim for an award pursuant to section 10 of O. Reg. 664, the applicant must prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed payments or that there was unreasonable conduct by the respondent. The legal test is set out in Plowright v. Wellington Insurance Co., 1993 CarswellOnt. 4786 (Ontario Insurance Commission)⁵⁹ which was accepted by the Divisional Court in Malitskiy v. Unica 2021 ONSC 460.⁶⁰ The applicant must prove that benefits were unreasonably withheld or that there was conduct that was excessive, imprudent, stubborn, inflexible, unyielding or immoderate in addressing the issues in dispute.

49The applicant outlined 12 items upon which his claim for a special award is based. In consideration of the evidence submitted, I find that the criteria to grant an award have been met as more particularly set out below.

50In the first item, the applicant submitted that the respondent repeatedly delayed responding to requests for treatment and expenses in breach of section 38(8) of the Schedule, compounding its neglect by trivializing the effect of the breach by stating that its actions were correct with payment of nominal interest or agreeing to pay the incurred treatment expenses. The applicant further submitted that the respondent failed to consider the cumulative effects its action had on the applicant’s state of mind, his finances, as well as his ability to recover from his injuries. The applicant referred to letters from the respondent dated May 6, 2019, July 28, 2021 and October 31, 2019 responding to treatment plans dated April 10, 2019, June 3, 2021 and October 9, 2019 respectively, approving the plans. The respondent submitted that the applicant has failed to establish that the delay was due to the respondent displaying excessive, imprudent, stubborn, unyielding or immoderate behavior when addressing the treatment plans and perfection is not the standard.

51I reviewed the receipted time of those treatment plans on HCAI. The plan dated April 10 was received on May 3, the June 3 plan was received the same day and the October 9 plan was received on October 30. While on its face, it appeared that the average response time on these 3 plans was 34 calendar days, the actual response time for the April 10 plan and the October 9 plan was within 10 business days in accordance with section 38(8) of the Schedule, based on the submission dates. With respect to the plan dated June 3, the respondent acknowledged by letter dated July 28 that its formal approval response was late and confirmed approval had been sent directly to the service provider on June 18. This was outside of the 10-day prescribed time. However, I find that this was an oversight which in and of itself, does not sufficiently establish that the respondent’s behaviour was excessive, imprudent, stubborn, unyielding or immoderate. I concur with the respondent as noted in Antony v. Security National Insurance Company, 2023 CanLII 50601 (ON LAT) that perfection is not the standard.⁶¹ Further, this does not pertain to the treatment plans in dispute.

52In the second item, the applicant submitted that the respondent compounded its error by stating that it required a section 44 assessment and then taking a further month to schedule such assessment resulting in a 6-month delay between the date treatment was requested and the date it was formally denied. The applicant relied on a letter dated December 6, 2021, in which the respondent denied the 3 treatment plans in dispute. It is acknowledged in the December 6 letter that the 3 treatment plans were received by the respondent on September 21, 2021, October 14, 2021 and November 22, 2021. Thereafter, by letter dated January 11, 2022, the respondent stated that it required section 44 assessments and by letter dated March 10, 2022, the treatment plans were denied as a result of the section 44 assessments conducted.

53I accept that there was a delay of more than 5 months from when the initial treatment plan was submitted to the final denial following assessments on March 10, 2022. In relation to the respondent’s December 6, 2021 denial letter, the denial of the plan dated September 21, 2021 took approximately 76 calendar days and for the plan dated October 14, 2021, the respondent took approximately 53 calendar days. The response times for both treatment plans are outside of the 10 business day period set out at section 38(8) of the Schedule. The plan received on November 22, 2021, was dealt with within the 10-day requirement.

54I considered the respondent’s submissions, including that the treatment plans were addressed within 10 days of receipt on HCAI (marked as not approved on the last page of the treatment plan) but that a section 38 compliant letter was not sent. The respondent further submitted that it met its obligations pursuant to section 38(11) of the Schedule. I considered that the respondent’s offering to pay for incurred expenses did little to assist the applicant who had limited means to seek treatment independent of the respondent, that the respondent repeatedly did not meet its obligation pursuant to section 38(8) of the Schedule and marking it in HCAI was not helpful as the applicant did not have access to that. I considered that the delay of the response and ultimate denial was in relation to 2 treatment plans, compounded with the third denial, which were close in date and that the delay affected the course of the applicant’s treatment for a prolonged period. There was no reasonable explanation for the delay which resulted in all 3 treatment plans being denied at once. This was shortly after the respondent terminated the applicant’s income replacement benefits on November 1, 2021 and incorrectly demanded repayment in excess of $13,000.00 which rectification took 3 months, partly because the respondent failed to take into account that the applicant was self-employed. I find that the totality of respondent’s behaviour cannot be dismissed as an error, lapse or simply unreasonable.

55Again, I recognize that perfection is not the standard⁶² and as noted in Malitskiy⁶³, micromanagement is not expected. However, reasonable management of the file is expected which the respondent failed to do. Its behaviour was excessive, imprudent, stubborn, unyielding and immoderate. Accordingly, I allow the claim for an award.

56With respect to the third item wherein the applicant submitted that the respondent repeatedly denied medical and rehabilitation benefits without considering all available evidence in its possession, the applicant has failed to prove this aspect of his claim. The applicant first relied on the respondent’s denial letter dated August 14, 2019 regarding a treatment plan for vocational training by Ms. Ross dated July 10, 2019. The respondent received the plan on July 24, 2019 and denied it, albeit 5 days late, as the applicant was still receiving pre-104 income replacement benefits. The respondent submitted that it eventually approved the request for vocational training. I find that the respondent did not act unreasonably in this regard considering as it was 1 year post accident and assessments had not been completed. I note that this treatment plan was not currently in dispute.

57The applicant also referred to the respondent’s letter dated December 6, 2021, denying the 3 treatment plans in this application, along with its letters of March 10, 2022 and April 11, 2022 and his letter dated March 11, 2022, enclosing the updated MRI dated February 3, 2022 and Dr. Alexander’s addendum report dated February 28, 2022. The respondent submitted that it was seeking section 44 assessments and neither Dr. Alexander nor Dr. Jaroszynski recommended facility-based treatment. I find that the applicant has failed to meet the test for an award. While the applicant did not agree with the basis of the denials, that does not equate to a failure by the respondent to consider evidence in its possession and an award is not punishment for failure to view the file differently.⁶⁴ The respondent did not act unreasonably in seeking assessments as it is entitled to, pursuant to section 44 of the Schedule.

58In the fourth item, the applicant submitted that the respondent refused to approve treatment related expenses despite ample evidence that the applicant required same to maintain his current level of function. The applicant relied on the respondent’s denial letters dated December 6, 2021, March 10, 2022, as well as his letter dated March 11, 2022, enclosing the MRI dated February 3, 2022, and Dr. Alexander’s addendum dated February 28, 2022. The respondent submitted that it approved 9 treatment plans for 134 sessions of physical rehabilitation, chiropractic treatment, gym membership and an e-bike for the period of November 29, 2018 to June 29, 2021 and that it was not unreasonable to seek an opinion regarding facility based treatment. I considered that the respondent may deny claims with reasons and when there is a disagreement concerning its decision, the applicant may appeal to the Tribunal. The respondent denied the treatment plans on the basis of seeking confirmation of whether they were reasonable and necessary more than 3 years post-accident and the later denials were related to the outcome of the assessments. While I have decided that the treatment plans set out in the December 6, 2021 letter are reasonable and necessary and my decision regarding an award also involves the same plans, this does not preclude the respondent from being able to deny treatment plans and seek assessments, pursuant to the Schedule. With respect to this item, the applicant has failed to meet the test for an award.

59In the fifth item, the applicant submitted that the respondent failed to provide medical and other reasons for denying the medical and rehabilitation expenses and instead adopted blanket denials in direct violation of section 38(8) of the Schedule. The applicant relied on the respondent’s letter dated December 6, 2021 in which the respondent denied 3 treatment plans and indicated the need for section 44 assessments. The respondent submitted that it was not unreasonable for the respondent to seek an opinion 3 years post-accident whether ongoing facility based treatment continued to be reasonable and necessary. The respondent’s position was that the applicant had not submitted recommendation of facility-based treatment from his family physician or Dr. Alexander. I concur with the respondent’s position insofar as its basis for the denials. An explanation for the denials was given and, as noted above, it is reasonable for the respondent to assess whether the treatment plans are reasonable and necessary, particularly given that they were submitted more than 3 years post-accident. However, I have provided my decision hereinabove in connection with the respondent’s behaviour in providing these denials and find that it meets the criteria for an award to be granted.

60In the sixth item, the applicant submitted that the respondent terminated the applicant’s entitlement to income replacement benefits on the basis that he can perform employment, yet failed to approve either passive or active treatment which would allow him to maintain his current level of function. The respondent submitted that the applicant commenced his career in March 2021 and was advised by letter dated November 1, 2021 that he did not meet the post-104 complete inability test. The respondent denied treatment as previously set out above. I find that the respondent is entitled to deny benefits for the reasons set out in its denial letters. Additionally, the applicant has failed to prove that the respondent acted unreasonably in relation this item considering the legal test and therefore, the claim for a special award on this item is denied.

61In the seventh item, the applicant submitted that the respondent incorrectly asserted an overpayment of income replacement benefits without providing details of the calculation or considering the applicant’s self-employment expenses despite being aware that he was self-employed, causing him further financial and psychological stress. The applicant’s income replacement benefits were terminated by letter dated November 1, 2021 in which the respondent was seeking repayment of $13,944.00. This continued to be confirmed by the respondent on December 7, 2021 and December 9, 2021. Further, in the December 9 letter, the respondent indicated the test for post-104 income replacement benefits and requested additional information for an updated calculation. By letter dated February 7, 2022, the respondent confirmed that the overpayment amount was recalculated to be $3,733.20. On March 10, 2022, after confirming the self-employment expenses, the respondent confirmed that there was no overpayment.

62I accept that the respondent made errors and incorrectly demanded repayment as it terminated the applicant’s income replacement benefits. It was a serious error which was resolved with the assistance of applicant’s counsel. I have addressed the compounding effect of the errors and incorrect demands followed shortly thereafter, by denials of back-to-back treatment plans. As noted above, I find that the test for an award has been met and is therefore, granted.

63In the eighth item, the applicant submitted that the respondent has repeatedly taken an adversarial approach to the applicant’s claim. The applicant directed the Tribunal to review correspondence between the parties between April 16, 2019 and November 25, 2019, which included the denial of the vocational training in dispute in this application, along with the EMS record and the emergency room record from the date of the accident. The respondent submitted that it required the applicant to undergo section 44 assessments over 1-year post-accident. Dr. Jaroszynski determined that the applicant suffered a substantial inability to complete his pre-accident employment following which, the vocational assessment was approved. The vocational assessment is not in dispute and there is insufficient evidence that the respondent has repeatedly taken an adversarial approach to the applicant’s claim. The claim for an award is denied with respect to this item.

64In the ninth item, the applicant submitted that the respondent denied treatment despite being aware that the applicant’s condition continued to deteriorate and further surgery is inevitable. The applicant relied on the respondent’s letter dated March 10, 2022 and counsel’s letter dated March 11, 2022. The respondent’s submissions included evidence of the treatment provided of 134 sessions of physical therapy. I find that the applicant has failed to provide compelling evidence that the respondent has acted in a manner which is unreasonable in this regard and the claim for an award is denied for this item. The respondent may deny treatment in accordance with the Schedule notwithstanding the applicant’s necessity for surgery. An award is not to punish the respondent for having a differing view of the claim.

65In the tenth item, the applicant submitted that the respondent terminated income replacement benefits prior to obtaining updated medical information either by way of an OCF-3 or an assessment in accordance with section 44 of the Schedule. The applicant further submitted that the respondent failed to obtain any medical information supporting its claim that the applicant can complete the tasks of a real estate agent. The respondent submitted that it received notice in March 2021 that the applicant had commenced his career as a real estate agent with a brokerage and advised the applicant on November 1, 2021 that the applicant no longer met the post-104 complete inability test. I considered that the applicant began working as a real estate agent and for the reasons noted above, he is not entitled to post-104 income replacement benefits. Moreover, there is no requirement for the respondent to conduct section 44 assessments. The applicant has failed to prove that the respondent has acted in a manner which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate and therefore, his claim for an award is denied in this respect.

66In the eleventh item, the applicant submitted that the respondent directed that the applicant undergo an MRI based on a suggestion of an IE assessor, someone who is not entitled to direct treatment. The applicant relied on correspondence of December 9, 2019, January 6, 2020, April 16, 2020, April 27, 2020, as well as a letter from applicant’s counsel dated December 18, 2019, to the respondent notifying that the assessor may not dictate diagnostic imaging and treatment. The respondent did not make specific submissions. I concur with applicant’s counsel regarding the assessors’ scope. And, while I find that the respondent acted inappropriately, in and of itself, I do not accept that this behaviour meets the threshold to grant an award.

67With respect to the twelfth item claimed by the applicant that the respondent failed to acknowledge or respond to communication from either the applicant or applicant’s counsel in a timely fashion, I have addressed timely responses hereinabove.

68There were no submissions regarding the quantum of an award. I find 15% of the sum of the treatment plans in dispute is reasonable considering the circumstances. Consequently, I am fixing the award in the amount of $1,211.40.

ORDER

69For the reasons provided above, I order the following:

a. that the applicant is entitled to payment for the following:

i. $3,924.07 for chiropractic services, proposed by CMRI in a plan submitted on September 21, 2021, and denied on December 6, 2021;

ii. $2,456.20 for chiropractic services, proposed by CMRI in a plan submitted on October 14, 2021, and denied on December 6, 2021;

iii. $1,695.75 for physiotherapy services, proposed by CMRI in a plan submitted on November 22, 2021, and denied on December 6, 2021;

b. that the respondent is pay liable to pay an award pursuant to section 10 of O. Reg. 664 in the amount of $1,211.40; and

c. that the respondent is liable to pay the applicant interest on overdue payments in accordance with s. 51 of the Schedule.

Footnotes

1. 1Statutory Accident Benefits Schedule — Effective September 1, 2010; O. Reg. 34/10 and amendments at June 1, 2016.
2. 2Dr. Calvert, OCF-3 and Clinical notes and records, August 27, 2018.
3. 3Respondent letter, February 7, 2022.
4. 4Respondent letter, March 10, 2022.
5. 5ER CT scan report, August 20, 2018; X-ray report, August 20, 2018.
6. 6ER CT scan report, August 20, 2018.
7. 7CT Scan report, May 27, 2019; Dr. Calvert, Clinical notes and records.
8. 8Maria Ross, Vocational Situational Assessment and Functional Capacity Evaluation, May 30, 2019, page 24.
9. 9Ibid, page 23.
10. 10Ibid, page 25.
11. 11Ibid, page 25.
12. 12Ibid, page 26.
13. 13Ibid, page 26.
14. 14Maria Ross, Treatment Plan in the amount of $4,044.86, July 10, 2019.
15. 15Dr. Irina Murariu, Psychological Assessment, October 31, 2019, page 13.
16. 16Ibid, page 9.
17. 17Ibid, page 8.
18. 18Dr. Ratti, Psychological Assessment, November 5, 2019, page 9.
19. 19Ibid, page 9.
20. 20Ibid, page 7.
21. 21Z. Lee, Physiotherapy Assessment, February 5, 2019.
22. 22Dr. Alexander, Acknowledgement of Expert’s Duty Letter, December 14, 2020.
23. 23Dr. Alexander, Orthopaedic Assessment, December 10, 2020, page 10.
24. 24Ibid, page 11.
25. 25Ibid, page 12.
26. 26Dr. Alexander, Addendum Orthopaedic Assessment, February 28, 2022, page 6.
27. 27Ibid, page 7.
28. 28Dr. Paitich, Orthopaedic Assessment, September 16, 2021.
29. 29Royal LePage Brant Realty, letter, March 8, 2021.
30. 30Dr. Paitich, Orthopaedic Assessment, September 16, 2021, page 11.
31. 31Royal LePage Brant Realty tax worksheets for 2021 and 2022.
32. 32Larrek Investigations, Reports of September 9, 2022 and October 17, 2022.
33. 33Dr. Alexander, Orthopaedic Assessment, December 10, 2022, page 7.
34. 34Dr. Paitich, Orthopaedic Assessment, September 16, 2021, page 4.
35. 35Dr. Irina Murariu, Psychological Assessment, October 31, 2019; Dr. Alexander, Orthopaedic Assessments, December 10, 2020 and February 28, 2022; Dr. Jaroszynski, Orthopaedic Assessments, November 5, 2019 and February 8, 2022.
36. 36Dr. Alexander, Orthopaedic Assessment, December 10, 2020, page 11.
37. 37CMRI, Treatment Plan in the amount of $1,695.75 for physiotherapy services, November 21, 2021.
38. 38Dr. Ratti, Psychological Assessment, November 5, 2019, page 9.
39. 39Realtor.ca listings for the applicant, June, 2023; Royal LePage Brant Realty Tax Worksheets for 2021 and 2022.
40. 40Dr. Paitich, Orthopaedic Assessment, September 16, 2021, page 11.
41. 41Traders General Insurance Company v. Rumball, 2022 ONSC 7215 (Div. Crt.).
42. 42Ibid.
43. 43Traders, Supra.
44. 44Burtch v. Aviva Insurance Co. of Canada, 2009 ONCA 479 (COA).
45. 45Maria Ross, Vocational Situational Assessment and Functional Capacity Evaluation, May 30, 2019, page 5.
46. 46Cobblestone Medicine and Rehab, Clinical notes and records; Dr. Calvert, Clinical notes and records.
47. 47Dr. Alexander, Orthopaedic Assessments, December 10, 2020 and February 28, 2022; Dr. Jaroszynski, Orthopaedic Assessments, November 5, 2019 and February 8, 2022.
48. 48Dr. Jaroszynski, Orthopaedic Assessment, February 8, 2022, page 7.
49. 49Ibid.
50. 50Dr. Alexander, Addendum Orthopaedic Assessment, February 28, 2022.
51. 51CMRI, Treatment plan in the amount of $3,924.07, September 21, 2021.
52. 52CMRI, Treatment plan in the amount of $2,456.20, October 14, 2021.
53. 53CMRI, Treatment plan in the amount of $1,695.75, November 21, 2021.
54. 54N.E. v. Aviva General Insurance, 2020 CanLII 47487.
55. 55General Accident Assurance Co. of Canada v. Viola, [2000] Carswell Ont. 3453 (F.S.C.O. Arb.).
56. 56Dr. Jaroszynski, Orthopaedic Assessment, February 8, 2022, page 7.
57. 57F. J. v. Intact Insurance Company, 2020 CanLII 34495 (ONLAT).
58. 58Ibid.
59. 59Plowright v. Wellington Insurance Co., 1993 CarswellOnt. 4786 (Ontario Insurance Commission).
60. 60Malitskiy v. Unica, 2021 ONSC 4603.
61. 61Antony v. Security National Insurance Company, 2023 CanLII 50601 (ON LAT)
62. 62Antony v. Security National Insurance Company, 2023 CanLII 50601 (ON LAT).
63. 63Malitskiy v. Unica, 2021 ONSC 4603.
64. 64Antony v. Security National Insurance Company, 2023 CanLII 50601 (ON LAT).