Citation: Salvador v. Intact Insurance Company, 2024 ONLAT 23-000739/AABS

Licence Appeal Tribunal File Number: 23-000739/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:

Donna Salvador

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATORS:

Brian Norris Ludmilla Jarda

APPEARANCES:

For the Applicant:

Donna Salvador, Applicant Lucy Lee, Counsel Lisa Vaughan, Law Clerk

For the Respondent:

Sonia Gucciardi, Accident Benefits Adjuster

Tracy Brooks, Counsel

Jane Lo, Counsel

Court Reporter:

Vivienne Karamoutcheva

HEARD by Videoconference:

March 4, 5, and 6, 2024

OVERVIEW

1Donna Salvador (the “applicant”) was involved in an automobile accident on July 24, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Intact Insurance Company (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:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

2. Is the applicant entitled to occupational therapy services, proposed by DMA Rehability, as follows:

i. $2,482.50 in a treatment plan/OCF-18 (“treatment plan”) dated May 31, 2021;

ii. $3,656.56 in a treatment plan dated February 3, 2022; and

iii. $2,679.84 in a treatment plan dated September 2, 2022?

3. Is the applicant entitled to physiotherapy services, proposed by DMA Rehability, as follows:

i. $2,308.03 in a treatment plan dated May 31, 2021;

ii. $1,496.77 in a treatment plan dated January 17, 2022; and

iii. $1,197.52 in a treatment plan dated June 8, 2022?

4. Is the applicant entitled to a medical benefit in the amount of $1,950.00 ($4,950.00 less $3,000.00 approved) for psychological services, proposed by DMA Rehability in a treatment plan dated January 4, 2022?

5. Is the applicant entitled to a medical benefit in the amount of $603.50 for a wheelchair and other mobility devices, proposed by DMA Rehability in a treatment plan dated October 6, 2021?

6. Is the applicant entitled to a medical benefit in the amount of $1,149.94 for social work and assistive devices, proposed by Rehability in a treatment plan dated July 4, 2022?

7. Is the applicant entitled to a medical benefit in the amount of $13,260.44 for bathroom renovations, proposed by Rehability in a treatment plan dated July 15, 2022?

8. Is the applicant entitled to a medical benefit in the amount of $267.20 for mileage, submitted on a claim form (OCF-6) dated February 23, 2021?

9. Is the applicant entitled to a medical benefit in the amount of $879.09 for cannabis oil, submitted on a claim form (OCF-6) dated March 21, 2021?

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

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

RESULT

3For the reasons that follow, we find that:

1. The applicant does not meet the definition of a catastrophic impairment as a result of the accident.

2. The applicant is entitled to the cost of the cannabis oil, with interest pursuant to s. 51 of the Schedule.

3. The applicant is not entitled to the balance of the disputed treatment plans nor interest.

4. The respondent is liable to pay an award of 35%, plus interest, for the cost of the cannabis oil that has been incurred.

PROCEDURAL ISSUE

Section 45(2)1 of the Schedule and Dr. Paul Derry’s Report dated January 18, 2022

4In her closing submissions, the applicant raised the issue of whether the respondent’s catastrophic impairment assessor, Dr. Paul Derry, psychologist, is qualified to provide catastrophic impairment ratings because he is not a physician. The applicant also submits that very little weight should be placed on Dr. Derry’s findings regarding his catastrophic impairment ratings for Criterion 8 because he is not a physician.

5The applicant relies on s. 45(2)1 of the Schedule which provides that an assessment of examination in connection with a determination of catastrophic impairments shall be conducted only by a physician, but the physician may be assisted by such other regulated health professionals as he or she may reasonably require. The applicant also relies on Abboud v. Intact Insurance, 2023 CanLII 72642 (ON LAT) [Abboud], and on Lanzon v. Economical Insurance Company, 2023 CanLII 119806 (ON LAT) [Lanzon].

6The respondent acknowledges that its s. 44 catastrophic assessments did not include a physician assessment and argues that Lanzon does not apply in this case. It submits that while s. 45 of the Schedule requires a “physician assessment” for the purpose of applying for a catastrophic impairment determination, s. 44 of the Schedule does not require a “physician assessment” for the purpose of rebuttal assessments. Further, Lanzon is not binding on the adjudicators hearing this case.

7We find that s. 45(2)1 of the Schedule does not require an insurer to conduct an assessment or examination in connection with a determination of catastrophic impairment by a physician. Rather, per s. 45(1) of the Schedule, the requirement set out in s. 45(2)1 only applies to an insured person who applies to an insurer for a determination of whether they sustained a catastrophic impairment as a result of the accident. We also find that the Abboud and Lanzon decisions are distinguishable, and we are not bound by these decisions.

8We remind the parties that the onus lies with the applicant to demonstrate that she sustained a catastrophic impairment, and it is not the respondent’s onus to disprove her entitlement. Accordingly, it follows that the respondent is not bound by the rules outlined in s. 45 of the Schedule which governs the process to determine a person to be catastrophically impaired. As such, the Tribunal shall afford the weight it deems appropriate to Dr. Derry’s evidence.

ANALYSIS

Background

9On July 24, 2019, the applicant was involved in an automobile accident when she was rear ended by a third-party vehicle. At the time of the accident, the applicant was 69 years old and employed as an administrative clerk at the London Health Sciences Centre Victoria on a full-time basis. She has been married for over 52 years, and she has two adult children.

10On July 26, 2019, the applicant consulted her family physician, Dr. Emad Henein, and complained of trauma to her right elbow and right knee, and muscle stiffness, and she denied any head trauma. Dr. Henein diagnosed the applicant with having sustained soft tissue injuries and recommended physiotherapy.

11On July 30, 2019, the applicant underwent an initial assessment with Lifemark Physiotherapy. According to the MVA Initial Assessment Report, she reported that at the time of the accident, she bumped her head on the head rest, hit her right elbow and knee on the dashboard, and felt immediate left shoulder and low back pain. The applicant’s accident-related impairments were identified as whiplash associated disorder (WAD I) with complaint of neck pain, stiffness/tenderness only, sprain and strain of shoulder joint, sprain and strain of lumbar spine, and dislocation, sprain and strain of joints and ligaments of knee.

12The applicant was off work for approximately six weeks following the accident. She returned to work on a full-time basis after participating in a gradual return to work program.

13Based on the clinical notes and records of Lifemark Physiotherapy, by December 2020, the applicant reported that her neck and shoulder pain had significantly improved, and by January 2020, her low back pain had also improved.

14The applicant has a significant medical history unrelated to the accident. Specifically, the applicant has a history of high blood pressure, appendectomy, ankle fracture requiring open reduction and internal fixation (ORIF) surgery, depression, anxiety, grief, hypercholesterolemia, right patella fracture, bilateral knee pain, back pain, left proximal tibia fracture, ankle pain, and right shoulder pain.

15Further, two significant events occurred following the accident. With respect to the first event, the applicant was involved in a trip and fall accident on June 28, 2020. According to the Urgent Care Record dated July 3, 2020, the applicant reported that she was walking, tripped on a bike rack, and fell down on both knees while she was shopping at Giant Tiger. Her injuries were further investigated, and per a consultation note dated July 9, 2020, Dr. David Sanders, orthopaedic surgeon, diagnosed her with a left proximal tibial fracture.

16With respect to the second event, the applicant’s daughter was diagnosed with a spontaneous coronary artery dissection and had emergency heart surgery in 2022. Although she recovered, she was at risk of a reoccurrence. Based on a clinical note dated July 27, 2022, the applicant consulted Dr. Henein and reported experiencing worsening anxiety and panic attacks as a result of her daughter’s medical condition. Dr. Henein diagnosed the applicant with an adjustment reaction and gave her a prescription for anti-anxiety medication to treat her anxiety.

Catastrophic Impairment Determination

17The applicant seeks a determination of catastrophic impairment under Criterion 8 as defined by the Schedule, and she relies on an Application for Determination of Catastrophic Impairment (OCF-19) dated May 3, 2022 completed by Dr. Nadia Brown, physician.

18The applicant bears the onus to prove on a balance of probabilities that she is catastrophically impaired under Criterion 8. The latter encompasses impairment resulting from accident-related mental or behaviour disorders, and it does not include physically-based impairments. When an impairment is not a result of a mental or behavioural disorder, it is not factored into the impairment level for a Criterion 8 catastrophic impairment.

19Criterion 8 relies on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (the “Guides”). The Guides set out four functional domains: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace; and (4) adaptation (deterioration or decomposition in work or work like settings). There are five levels of impairment within each domain: no impairment, mild impairment, moderate impairment, marked impairment, and extreme impairment.

20An impairment is catastrophic under Criterion 8 of the Schedule if, as a result of an accident-related mental or behavioural disorder, a person has an “extreme” level of impairment in any one of the four functional domains or has a “marked” level of impairment in at least three of the four functional domains.

21The applicant submits that as a result of the accident, she was diagnosed with somatic symptom disorder with predominant pain, major depressive disorder, and sub-threshold post-traumatic stress disorder (including prominent generalized and vehicular anxiety). She argues that as a result of the symptomology related to these diagnoses, she suffers from a marked impairment in three functional domains due to mental or behavioural disorder, specifically, activities of daily living, concentration, persistence, and pace, and adaptation. The applicant does not claim that she suffers from an extreme impairment in any functional domain.

22The applicant relies on a multi-disciplinary catastrophic assessment Criterion 8 (mental and behavioural) report dated August 12, 2022 completed by Dr. Brown, Kelly Farrell, occupational therapist, and Bianca Heaslip, speech language pathologist, and a catastrophic impairment Criterion 8 rebuttal report dated August 17, 2023 completed by Dr. Brown and Ms. Farrell.

23The respondent submits that the applicant has not met her onus to prove that she is catastrophically impaired as a result of the accident. The respondent submits that as a result of the accident, the applicant suffers from an adjustment disorder with depressed mood and her related symptomology causes her to suffer from a moderate impairment in the areas of functioning of activities of daily living and concentration, persistence, and pace. The respondent denies the presence of any accident-related symptoms to justify the diagnosis of any other psychological disorder.

24The respondent relies on a catastrophic determination psychological assessment report completed by Dr. Derry, and a catastrophic impairment determination occupational therapy activities of daily living in-home assessment report completed by Matt Sutherland, occupational therapist, both dated January 18, 2023.

25As there is no dispute that the applicant suffers from a marked impairment in the functional domain of adaptation and that she suffers from a moderate impairment in the functional domain of social functioning, our review of the evidence is concentrated on whether the applicant suffers from a marked impairment in activities of daily living and concentration, persistence, and pace.

The applicant does not suffer from a catastrophic impairment under Criterion 8

26We find that the applicant has not demonstrated, on a balance of probabilities, that she suffers from a marked impairment in three functional domains due to a mental or behavioural disorder as a result of the injuries sustained in the subject accident. As such, she has not established that she is catastrophically impaired under Criterion 8.

Activities of Daily Living

27We find that the applicant does not suffer from a marked impairment in the domain of activities of daily living.

28The Guides specify that activities of daily living functioning include self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction. What is assessed is not the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

29We find the applicant’s evidence and submissions that she sustained a marked impairment in the domain of activities of daily living as a result of her accident-related injuries to be unpersuasive. Although Dr. Brown found that the applicant sustained a marked impairment in activities of daily living, for the following reasons, we place limited weight on her findings.

30Dr. Brown heavily relied on the applicant’s self-reporting, and the evidence supports that the applicant failed to provide important information to her treatment providers and to her assessors, including to Dr. Brown, regarding her pre-accident and post-accident health and treatment such that the applicant’s self-reporting is inconsistent and unreliable. Further, Dr. Brown’s findings were based on the premise that the critical event is the subject accident, and she gave little consideration in her assessment and report of the impact of the applicant’s trip and fall injuries. Also, there is no indication in Dr. Brown’s report that she considered the impact of the applicant’s daughter’s medical condition on the applicant’s mental and behavioural status.

31Moreover, we find that there is insufficient evidence to support that the applicant’s accident-related injuries significantly impede useful functioning in her activities of daily living. Although the applicant experienced some changes in her ability to engage fully in her pre-accident activities of daily living and Dr. Brown stated that the applicant’s anxiety, depression, low mood, and fear of triggering pain contributed to her ability to participate in activities of daily living, the evidence does not support that an accident-related mental or behavioural disorders significantly impede useful functioning in her activities of daily living.

32Prior to the accident, the applicant was fully independent in her personal care such as dressing, bathing, grooming, and toileting. Following the accident, she continues to be independent with her personal care but with some modifications and the use of equipment.

33Prior to the accident, the applicant had good social skills and interacted with people with satisfaction. Following the accident, although she is less interested in socializing, she has no problems with communication.

34Prior to the accident, the applicant used a cane due to her right knee pain. There is no evidence that the applicant requires the use of a cane as a result of the subject accident, rather, the evidence supports that she resumed using a cane sometime following the trip and fall accident.

35Prior to the accident, the applicant did not have any difficulty driving. Following the accident, the applicant continued to drive, but she avoided driving at night due to an unrelated eye condition. Based on the evidence before the Tribunal, the applicant stopped driving for a period of time following her retirement in December 2020 due to anxiety. However, there is insufficient evidence to support that her driving anxiety was due to the subject accident.

36Prior to the accident, the applicant was employed and worked on a full-time basis. Although she was off work for approximately six weeks following the accident, she returned to work on a full-time basis. The applicant later stopped working due to the injuries she sustained in her trip and fall accident, and she ultimately retired in December 2020 due to impairments unrelated to the subject accident.

37Prior to the accident, the applicant shared meal preparation with her husband, and she did not have any difficulty with meal preparation tasks. She also completed most of the grocery shopping. Following the accident, the applicant continues to prepare light meals, and she states that her husband does most of the meal preparation because she experiences physical difficulties standing.

38Prior to the accident, the applicant and her husband shared laundry tasks, each completing their own, and the gardening tasks. Her husband completed most of the cleaning tasks and all of the outdoor tasks, including lawn care and snow removal. She also had a housekeeper who thoroughly cleaned once per month. Following the accident, the applicant states that she engages in minimal household tasks, and she attributes this limitation to physical pain Indeed, the applicant testified that her lack of participation in household tasks was due to her inability to stand for too long periods of time as this causes her to experience lower back.

39Prior to the accident, the applicant’s husband was responsible for the family finances including bill payments, banking, and taxes. Following the accident, he continues to be responsible for the finances.

40Prior to the accident, the applicant did not identify any sleep problems. Following the accident, the applicant states that her sleep has been disrupted, requiring the use of medication.

41Prior to the accident, the applicant had a positive and intimate relationship with her husband. Following the accident, the applicant reports a lack of interest and reduced libido. She and her husband now sleep in separate beds and separate rooms.

42Prior to the accident, the applicant enjoyed socializing with friends and having pool parties. Her friends described her as “the hostess with the mostest.” She enjoyed shopping, getting her nails done, knitting, gardening, and going to the gym for aquatherapy classes with her colleagues. Following the accident, although the applicant is not as social as before, the evidence supports that she continues to go shopping. Further, she stopped going to the gym due to her right shoulder pain, which is not related to the accident.

43Considering the above, we find that the applicant has not met her onus of proving that she suffers from a marked impairment under the activities of daily living domain.

Concentration, Persistence, and Pace

44We find that the applicant does not suffer from a marked impairment in the domain of concentration, persistence, and pace.

45The Guides specify that the factors to be considered under this domain are concentration, persistence, and pace needed to perform many activities of daily living, including task completion. Task completion refers to the ability to sustain focused attention long enough to complete tasks commonly found in activities of daily living to sustain focused attention long enough to complete tasks commonly found in activities of daily living or at work. In order to consider strength and weaknesses in mental concentration, there is a consideration of frequency of errors, the time it takes to complete the task, and the extent to which assistance is required to complete the tasks.

46We find the applicant’s evidence and submissions that she sustained a marked impairment in the domain of concentration, persistence, and pace as a result of her accident-related injuries to be unpersuasive. Although Dr. Brown found that the applicant sustained a marked impairment in concentration, persistence, and pace, for the reasons previously outlined in this decision, we place limited weight on her findings.

47Further, we find that the evidence supports that the applicant’s accident-related injuries did not significantly impede useful functioning in concentration, persistence, and pace. Indeed, as indicated above, the applicant successfully returned to work following the subject accident. Although she eventually went off work for several weeks and retired, this was not as a result of her accident-related injuries, but rather as a result of her trip and fall accident and unrelated impairments.

48Moreover, there is insufficient evidence to support that the applicant suffers from a marked impairment in this domain of function due to a mental or behavioural disorder. Although Ms. Farrell and Ms. Heaslip administered various tests to the applicant, and her test results exceeded the typical time limit for the tests, ultimately, the applicant was able to perform all of the questionnaires and testing on her own without assistance, she was able to focus and concentrate, she was able to follow instructions and complete the testing and questionnaires, and she did not decline any of the testing. Also, the applicant’s ability to return to work following the accident, to continue driving after the accident, and to give oral testimony in examination in chief and cross-examination for five and a half hours are all examples of the applicant’s ability to sustain concentration and focus.

49As a result, we find that the applicant has not met her onus of proving that she suffers from a marked impairment under the concentration, persistence, and pace domain.

50The applicant bears the burden of demonstrating on a balance of probabilities that the disputed treatment plans are reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

The applicant is not entitled to occupational therapy services

51We find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans for occupational therapy services are reasonable and necessary.

52The treatment plan dated May 31, 2021 in the amount of $2,482.50 proposes an in-home occupational therapy assessment, a budget for unidentified goods, and completion of the treatment plan. The goal of the treatment plan is to reduce pain, increase range of motion, and increase strength. The functional goals are to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities. The purpose of the assessment is to determine the need for occupational therapy intervention, to ensure safety, and to assist in participation and independence with pre-accident activities of daily living including housekeeping and home maintenance, community activities, and leisure tasks.

53The treatment plan dated February 3, 2022 in the amount of $3,656.56 proposes 8 occupational therapy sessions, provider travel time, medical coordination with the applicant’s treatment team, correspondence and preparation of a comprehensive report, paper review of the insurer examination assessors’ reports, documentation support activity, a budget for unidentified goods, and completion of the treatment plan. The goal of the treatment plan is to reduce pain, increase range of motion, and increase strength. The functional goals are to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities. It is noted that the applicant has demonstrated small improvement in meal preparation tasks with occupational therapy intervention.

54The treatment plan dated September 2, 2022 in the amount of $2,679.84 proposes 8 occupational therapy sessions, provider travel time, indirect treatment time including research for devices, communication with the applicant’s treatment team, preparation of a comprehensive report, and completion of the treatment plan. The goal of the treatment plan is to reduce pain, to increase range of motion, and to increase strength. The functional goal is to return to activities of normal living. It is noted that the applicant has made little progress to date due to ongoing psycho-emotional support and lack of access to benefits and appropriate rehabilitation.

55We find the applicant’s submissions and evidence regarding an occupational therapy assessment and occupational therapy intervention to be unpersuasive. Although the applicant submits that her treating occupational therapist was assisting her with function by teaching her different ways to pace herself and to differentiate between hurt vs. harm, and she was assisting with submitting referrals for ongoing social work and behavioural therapy, the evidence does not support the need for an occupational therapy assessment and occupational therapy intervention for the functional purposes identified in the treatment plans. The evidence does not support that the applicant’s accident-related injuries sufficiently affect her ability to engage in activities of daily living to warrant treatment. Further, given that the applicant retired from work and has not demonstrated any attempt or desire to return to work, the evidence does not support the functional purpose of returning to pre-accident work activities or to modified work activities. Accordingly, we find occupational therapy interventions are not reasonable and necessary.

56Moreover, the applicant was assessed by Dr. Charanjit Sandhu, physician specialized in occupational medicine, who concluded in a physician assessment report dated August 13, 2021 that the applicant’s presentation was consistent with residual symptoms of myofascial sprains to her cervical spine and lumbar spine along with ongoing post-traumatic headaches. Dr. Sandhu also found that the applicant’s low back pain was secondary to the mild degenerative changes in her lumbar spine and as a direct result of the accident. Further, as noted in Dr. Sandhu’s physician paper review report dated January 18, 2023, the applicant does not have any documented accident-related injuries of a sufficient scope to warrant occupational therapy intervention.

57As such, we find that the applicant has not demonstrated entitlement to the cost of occupational therapy services.

The applicant is not entitled to physiotherapy services

58We find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans for physiotherapy services are reasonable and necessary.

59The treatment plan dated May 31, 2021 in the amount of $2,308.03 proposes 10 physiotherapy sessions, a physiotherapy assessment, preparation of an initial report and a progress report after completion of the 10 week program, communication with rehabilitation team, development of a home program, provision of equipment for a home program, which may include a balance pad, theraband, and weights, and completion of the treatment plan. The goal of the treatment plan is to reduce pain, increase range of motion, to increase strength, and to initiate a home-based exercise program. The functional goals are to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities.

60The treatment plan dated January 17, 2022 in the amount of $1,496.77 proposes 8 physiotherapy sessions with a frequency of twice per month, communication with the applicant’s rehabilitation team, preparation of a progress report, and completion of the treatment plan. The goal of the treatment is to continue to provide regular physiotherapy treatment to the applicant to assist with pain management, balance function and fall risk, and strength and endurance. The functional goals are to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities.

61The treatment plan dated June 8, 2022 in the amount of $1,197.52 proposes 8 physiotherapy sessions with a frequency of twice per month and completion of the treatment plan. The goal of the treatment plan is to continue physiotherapy treatment twice per month to progress with her clinic and home-based rehabilitation program. The functional goals are to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities.

62We find the applicant’s submissions and evidence that physiotherapy is reasonable and necessary to be unpersuasive. Although the applicant submits that physiotherapy treatment assists with her function as it allows her to participate in exercise and stretches with the assistance of a physiotherapist, the evidence does not to support that physiotherapy treatment is reasonable and necessary. She has not directed us to a report or evidence to support that physiotherapy treatment is reasonably required as a result of her accident-related injuries.

63Further, in his report dated August 13, 2021, Dr. Sandhu concluded that physiotherapy was not reasonable and necessary. However, given the applicant’s ongoing chronic low back pain and her lack of access to either a gym or a pool for aquatherapy, she should transition to a completely independent exercise program. Further, as noted in his physician assessment report dated March 11, 2022, Dr. Sandhu opined that the applicant had likely achieved maximum therapeutic benefits from facility-based treatment given that her predominant accident-related injuries are residual symptoms from myofascial sprains to her cervical spine, right shoulder, and lumbar spine along with ongoing post-traumatic headaches.

64As such, we find that the applicant has not demonstrated entitlement to the cost of physiotherapy services.

The applicant is not entitled to psychological services

65We find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balance of the treatment plan for psychological services is reasonable and necessary. As such, the applicant is not entitled to $1,950.00 for the treatment plan dated January 4, 2022.

66The treatment plan dated January 4, 2022 in the amount of $4,950.00 proposes 15 social work counselling sessions, provider travel time, communication with the applicant’s rehabilitation team, and completion of the treatment plan. The goal of the treatment plan is to reduce pain and to decrease symptoms associated with anxiety and depression. The functional goals are to return to activities of normal living.

67The respondent partially approved this treatment plan in the amount of $3,000.00. The respondent did not agree to pay for 5 social counselling sessions and reduced the provider travel time to correspond with the number of approved therapy sessions. The respondent also lowered the cost of the completion of the treatment plan from $200.00 to $125.00 on the basis that an hour of the provider’s time to complete the form is sufficient.

68We find that the applicant’s submissions and evidence are lacking in demonstrating that the unapproved balance of the treatment plan is reasonable and necessary as the applicant does not expressly address the reasonable and necessary nature of the unapproved balance of the treatment plan.

69As such, we find that the applicant has not met her burden of proof of demonstrating that she is entitled to the unapproved balance of the treatment plan.

The applicant is not entitled to a walker and to an occupational therapy walker assessment

70We find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated October 6, 2021 for a walker and an occupational therapy walker assessment (incorrectly identified as a wheelchair and other mobility devices in the issues in dispute above) in the amount of $603.50 is reasonable and necessary.

71The treatment plan proposes the cost of a walker, an occupational therapy walker assessment, and completion of the treatment plan. The goal of the treatment plan is to reduce the risk of falls and to improve balance issues. The functional goals are to return to activities of normal living, to return to pre-accident work activities, and to return to modified work activities.

72We find the applicant’s submissions and evidence that the treatment plan is reasonable and necessary to be unpersuasive. Although the applicant submits that the use of a walker was recommended because ever since she broke her left leg, she leans on her left side, and she walks with a limp on her right side, the evidence does not support that the applicant broke her left leg as a result of the accident. Further, the applicant has not directed us to a report or evidence to support that she is required to use a walker as a result of her accident-related injuries. The applicant testified that she used a cane due to significant right knee pain prior to the accident, and that she resumed the use of a cane and started using a walker sometime after her trip and fall accident. Further, as noted by Dr. Sandhu in a physician paper review report dated January 18, 2023, there is no evidence to support that the applicant has any accident-related pathology to warrant the proposed walker two years post-accident.

73As such, we find that the applicant has not demonstrated entitlement to the cost of a wheelchair and other mobility devices.

The applicant is not entitled to social work and assistive devices

74We find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balance of the treatment plan for social work and assistive devices is reasonable and necessary.

75The treatment plan dated July 4, 2022 in the amount of $6,053.07 proposes 16 social work counselling session, provider travel time, communication with the applicant’s rehabilitation team, completion of a progress report, a Fitbit, a premium membership for the Fitbit, a Muse headband, a case for the Muse headband, and completion of the treatment plan. The goal of the treatment plan is to reduce pain, and to reduce the intensity, duration, and frequency of symptoms associated with depression, anxiety, and trauma. The functional goals are to return to activities of normal living.

76The respondent partially approved the treatment plan in the amount of $4,700.00. The respondent did not agree to pay for communication with the applicant’s rehabilitation team, a Fitbit, a premium membership for the Fitbit, a Muse headband, and the case for the Muse headband.

77We find the applicant’s submissions and evidence that the unapproved balance of the treatment plan is reasonable and necessary to be unpersuasive. Although the assistive devices were recommended by Carolyn Philips, social worker, to assist the applicant in-between sessions with cues and reminders for mindfulness activities and relaxation as indicated in her Social Work Progress Report #2 dated October 27, 2023, there is no evidence demonstrating a need for assistance in-between sessions as a result of the applicant’s accident-related injuries.

78We further find that the evidence does not support that the unapproved balance of the treatment is reasonable and necessary. In a psychological assessment report dated January 18, 2023, Dr. Derry concluded that the unapproved balance of the treatment plan was not reasonable and necessary. He noted that there is no current clinical rationale to recommend the need for ongoing consultation with other providers and the related services outline in the treatment. Further, the issues related to the Fitbit and the Muse headband can be addressed in the recommended counselling sessions.

79As such, we find that the applicant has not demonstrated entitlement to the unapproved balance of the treatment plan is reasonable and necessary.

The applicant is not entitled to bathroom renovations

80We find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated July 15, 2022 for bathroom renovations in the amount of $13,260.44 is reasonable and necessary.

81The treatment plan proposes the cost of a tub to shower conversion, a new window within the shower enclosure, renovation of the remainder of the bathroom, including but not limited to the installation of a comfort height toilet, and the replacement of flooring, and completion of the treatment plan. The goal of the treatment plan is to reduce pain. The functional goal of the treatment plan is to return to activities of normal living. Further, it is noted that an accessible shower is required as the applicant presents with decreased independence and high risk for falls.

82We find the applicant’s submissions and evidence on the issue to be unpersuasive. The applicant testified that the bathroom renovations were recommended because of her back pain. She noted that her husband initially installed safety bars in the bathtub to help her with her fear of falling. She later proceeded with the full bathroom renovations, and she submitted receipts totalling $13,780.94. However, she has not directed us to a report or evidence to support the need for full bathroom renovations as a result of her accident-related injuries. Rather, we find that the evidence indicates that the bathroom renovations are for reasons that are separate and unrelated to the accident. Indeed, in a physician assessment report dated January 18, 2023, Dr. Sandhu concluded that the bathroom renovations were not reasonable and necessary. He noted that the applicant’s accident-related sequelae from a musculoskeletal perspective is predominantly soft tissue injuries that would largely have resolved. Further, the applicant’s increasing impairment is most likely related to her underlying degenerative processes based on the August 2020 MRI study as opposed to a direct result of the accident.

83Further, in an occupational therapy in-home assessment report dated January 18, 2023, Mr. Sutherland concluded that based on the applicant’s documented accident-related injuries, his observations of the applicant’s transfers and self-care ability, his functional assessment, and the applicant’s subjective reports, in his opinion, a full bathroom renovation is excessive. He indicated that the applicant demonstrated independence to participate in washing, personal hygiene, and toileting safety, and a full bathroom renovation does not appear to be necessary for safety or to improve the applicant’s independence in her self-care tasks. Mr. Sutherland found that a more appropriate safety recommendation would be to place a SuperPole grab bar between the tub and the toilet area for additional support when stepping in and out of the tub, and to remove the shower doors and to utilize a tub transfer bench to eliminate fall risks. We find no evidence to upset Mr. Sutherland’s opinion.

84As such, we find that the applicant has not demonstrated entitlement to the cost of bathroom renovations.

The applicant is not entitled to mileage

85We find that the applicant has failed to demonstrate, on a balance of probabilities, that mileage in the amount of $267.20 is reasonable and necessary.

86The applicant submitted an OCF-6 dated February 23, 2021 in the amount of $133.60 for the cost of mileage for attendance at the Allevio pain clinic for an injection appointment.

87On March 28, 2021, the respondent advised the applicant that it did not agree to pay for this expense. It requested that the applicant provide a note from her family doctor or treating practitioner from the Allevio pain clinic indicating that the applicant received this treatment to treat her accident-related injuries.

88We find the applicant’s submissions and evidence regarding this issue to be unpersuasive. The applicant has not provided a breakdown of the mileage expenses in her submissions, nor has she provided evidence to support a claim for mileage under s. 15(1)(g) of the Schedule. Also, she has not directed us to any evidence to support the need for transportation to attend the appointment.

89We further find that there is insufficient evidence to support that the injection appointment was reasonably required as a result of the applicant’s accident-related injuries. According to Dr. Hughes’ report, he diagnosed the applicant with chronic low back pain and bilateral gluteal referred pain and recommended that the applicant consider radiofrequency lesioning to address her lower back pain. However, based on the MRI of the lumber spine dated August 27, 2020, the applicant has mild degenerative changes in the lumbar spine, and there is no evidence of any nerve root impingement. Further, while it was noted that the applicant was involved in the subject accident, it was also noted that she has a history of osteoporosis.

90As such, we find that the applicant has not demonstrated entitlement to the cost of mileage.

The applicant is entitled to the cost of cannabis oil

91We find that the applicant has demonstrated, on a balance of probabilities, that the OCF-6 dated March 21, 2021 for cannabis oil in the amount of $879.09 is reasonable and necessary.

92The applicant submitted an OCF-6 dated March 21, 2021 in the amount of $879.09 for the cost of cannabis oil. The applicant testified that the use of cannabis oil was recommended by Dr. Henein and prescribed by Dr. Dave Arnold Mohomed, physician, to help alleviate her pain.

93On March 28, 2021, the respondent advised the applicant that it did not agree to pay for this expense. It requested that the applicant submit a treatment plan pursuant to s. 38(2) of the Schedule. The respondent also stated that the applicant was required to submit payment of the expense to her collateral benefits insurer.

94In response, the applicant argued that pursuant to s. 38(2)(c) of the Schedule, an insured is not required to submit a treatment plan for reimbursement of prescription medication and notes that each expense for cannabis oil is less than $250.00. The applicant relies on P.A. v. TD General Insurance Company, 2020 CanLII 35503 (ONLAT).

95We find that the applicant has provided sufficient evidence to support that the cannabis oil is reasonable and necessary. We agree with the applicant and find that a treatment plan is not required for a medical expense under the cost of $250.00, pursuant to s. 38(2)(c) of the Schedule. Further, the applicant’s evidence supports that the cannabis oil was prescribed by a regulated health care professional to treat her pain, and she testified that the use of the cannabis oil took some of her pain away. The applicant has also provided proof that the cost of the cannabis oil was incurred.

96As such, we find that the applicant is entitled to the cost of cannabis oil in the amount of $879.09.

Interest

97Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest for the cost of the cannabis oil.

Award

98Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. When such a finding is made, the Tribunal may order up to 50% of the withheld or delayed payment along with interest at the rate of 2% per month, compounded monthly.

99The applicant seeks an award with respect to the respondent’s handling of her claims for mileage and cannabis oil. The applicant submits that the respondent did not provide any justification to maintain its denial of payment for these OCF-6s and that an award is warranted in the circumstances.

100The respondent did not address the issue of an award in its closing submissions, despite having the opportunity to do so. As such, the respondent’s position is unknown.

101It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The threshold for awarding a s. 10 award is high.

102In the present case, given our finding that the applicant is not entitled to mileage, it follows that payment of this benefit was not unreasonably withheld or delayed. As such, an award is not warranted for the applicant’s claim for mileage.

103With respect to the applicant’s claim for cannabis oil, we find that an award is warranted. We agree with the applicant’s submissions and find that the respondent’s conduct arises to a level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. As indicated above, a treatment plan is not required pursuant to 38(2)(c) of the Schedule. Despite this, the respondent provides no rationale for maintaining its denial and demanding that the expense be put on a treatment plan. The respondent’s conduct leads us to conclude that it unreasonably withheld payment.

104Given our finding, we must further determine the quantum of the award. It is well established that in determining the quantum of an award, the Tribunal may consider the following factors:

i. the blameworthiness of the insurer’s conduct;

ii. the vulnerability of the insured person;

iii. the harm or potential harm directed at the insured person;

iv. the need for deterrence;

v. the advantage wrongfully gained by the insurer;

vi. other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and

vii. the overall length of the delay.

105In our view, the blameworthiness of the respondent’s conduct, the vulnerability of the applicant, the need for deterrence, and the overall length of the delay are the applicable factors. The respondent provides no reason for maintaining a position that is not supported by the Schedule for nearly three years. While the quantum of the award should be large enough to serve as a deterrent, we find that the highest allowable award would be excessive. In the circumstances, we find that an award of 35% is appropriate.

106Accordingly, the respondent is liable to pay an award of 35%, plus interest, for the cost of the cannabis oil that has been incurred.

ORDER

107For the reasons outlined above, we find that:

1. The applicant does not meet the definition of a catastrophic impairment as a result of the accident.

2. The applicant is entitled to the cost of cannabis oil, with interest pursuant to s. 51 of the Schedule.

3. The applicant is not entitled to the balance of the disputed treatment plans nor interest.