Geraldes v. Peel Mutual Insurance Company, 2024 CanLII 81210

Citation: Geraldes v. Peel Mutual Insurance Company, 2024ONLAT 22-008507/AABS

Licence Appeal Tribunal File Number: 22-008507/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:

Vincenza Turco Geraldes

Applicant

and

Peel Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Maia Abbas, Counsel

HEARD: By way of written submissions

OVERVIEW

1Vincenza Turco Geraldes, the applicant, was involved in an automobile accident on December 1, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2I have been asked to decide the following issues:

1. Is the applicant entitled to attendant care benefits ("ACBs") in the amount of $1,552.92 per month from November 15, 2020, to date and ongoing?
2. Is the applicant entitled to $1,654.80 ($2,173.60 less $518.80 approved) for assistive devices, proposed by E Clinic United Healing in a treatment plan/OCF-18 ("OCF-18") dated March 11, 2022?
3. Is the applicant entitled to $1,199.10 ($1,224.81 less $25.71 approved) for assistive devices, proposed by Q medical in an OCF-18 dated November 15, 2021?
4. Is the applicant entitled to $2,852.55 for massage and physiotherapy services, proposed by Uptown Physical Rehabilitation in an OCF-18 dated September 7, 2022?
5. Is the applicant entitled to $857.55 for massage and physiotherapy services, proposed by Uptown Physical Rehabilitation in an OCF-18 dated December 13, 2022?
6. Is the applicant entitled to $2,195.00 for massage and physiotherapy services, proposed by Uptown Physical Rehabilitation in an OCF-18 dated December 13, 2022?
7. Is the applicant entitled to $1,050.00 for a nutritional assessment, proposed by E Clinic United Healing in an OCF-18 dated June 24, 2022?
8. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Q medical in an OCF-18 dated September 16, 2021?
9. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Q medical in an OCF-18 dated September 16, 2021?
10. Is the applicant entitled to $2,316.50for an MRI, proposed by Q medical in an OCF-18 dated April 27, 2021?
11. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3After considering the parties written submissions and all the evidence I find:

1. The applicant has established entitlement to monthly ACBS in the amount of $1,446.57 from October 21, 2021, to date. However, she is not entitled to payment for the time-period claimed because she has not proven that the benefit has been incurred. The applicant is not entitled to interest on overdue payment of benefits because she has not submitted proof that the benefit has been incurred.
2. The applicant is entitled to the following OCF-18s for medical benefits and cost of examination expenses, plus interest: a) $1,199.10 ($1,224.81 less $25.71 approved), proposed by Q medical in the OCF-18 dated November 15, 2021. b) $1,050.00 for a nutritional assessment, proposed by E Clinic United Healing in an OCF-18 dated June 24, 2022; and c) $2,486.00 for a psychological assessment, proposed by Q medical in an OCF-18 dated September 16, 2021.
3. The applicant is not entitled to the remaining OCF-18s for medical benefits and cost of examinations in dispute or interest.

PRE- AND POST-ACCIDENT HEALTH

4Nine months prior to the accident, the applicant was on medical leave from her employment due to a respiratory illness which also resulted in symptoms of depression and anxiety. The applicant subsequently had a fall in June 2020, when she injured her right shoulder, which she had previously had rotator cuff surgery on in 2009. Following her fall, the applicant experienced ongoing pain and psychological symptoms and was attending physiotherapy and psychological treatment for these injuries. Her injuries also resulted in functional limitations in prolonged standing, walking, climbing stairs, lifting, and carrying.

5The clinical notes and records ("CNR's) of the applicant's family doctor from November 2020 note ongoing symptoms of anxiety, however, there was improvement to the applicant's right shoulder injury, and she was scheduled to return to work on December 14, 2020. However, the subject accident occurred on December 1, 2020, which exacerbated the applicant's pre-existing right shoulder impairment and resulted in soft tissue injuries to her cervical and lumbar spine. Following the accident, the applicant has also been diagnosed with psychological impairments which was agreed to by the respondent's psychological assessor. She has also been diagnosed with chronic pain syndrome and fibromyalgia.

6The respondent maintains that the applicant's diagnoses of fibromyalgia and chronic pain syndrome were not as a result of the accident. Although I acknowledge that the applicant had significant pre-accident health issues in the year prior to the accident, the above-noted CNR of the family doctor notes improvement shortly before the accident and she was expected to return to work. I find that the accident exacerbated her right shoulder impairment and resulted in ongoing chronic pain and functional limitations. I find this is supported by the CNRs of the family doctor and various assessment reports completed throughout the claim. I also find it difficult to accept the respondent's position on causation because it has paid the applicant over $18,000 in medical benefits. Further, even Dr. Safir its own orthopaedic insurer examination ("IE") assessor acknowledged in his reports that the applicant has developed chronic pain syndrome.

ANALYSIS

Entitlement to ACBS

7The applicant has established entitlement to monthly ACBS in the amount of $1,446.57 from October 21, 2021, to date. However, I find the applicant is not entitled to payment of the benefit because she has not proven that ACBs have been incurred.

8Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. The maximum payable under the Schedule is $3,000 per month for non-catastrophic insureds.

9Section 3(7)(e) provides that to meet the definition of incurred the following three criteria must be satisfied:

i. The applicant received the service to which the expense relates; ii. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense; iii. The person who provided the service did so: a) in the course of his or her employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or b) sustained an economic loss as a result of providing the goods or services to the insured person.

10Section 42(5) of the Schedule states that an insurer may, but is not required to, pay an expense incurred before a Form 1 that complies with this section is submitted to the insurer.

11The applicant relies on the attendant care assessment report dated October 21, 2021, and Form 1 completed by occupational therapist ("OT") Jasveen Kaur ("OT Kaur"). The report notes that the applicant complained of pain in her cervical, thoracic, and lumbar spine, right shoulder, elbows, hands, hip, and knee pain. Further, that the applicant experiences difficulties with prolonged sitting, standing, walking and has difficulties with reaching, lifting, and gripping. OT Kaur opined that these limitations prevent the applicant from carrying out her activities of daily living such as maintaining bedroom and bathroom hygiene and laundry. In addition, she has limitations with self-care such as bathing, hair and nail care and food preparation. OT Kaur recommended $1,552.92 in ACBs per month for assistance with these tasks.

12The respondent argues that it approved the applicant's attendant care claim in the amount of $108.57 per month. It relies on the ACB assessment report of OT Munirah Quraishi ("OT Quraishi") who determined that "based on ROM, MMT, and functional observations, the claimant demonstrated reduced ROM in her right upper extremity and lower back, decreased bending, lifting, sustained reaching, and tasks that require use of bilateral upper extremities (e.g., carrying, loading, and unloading laundry and mopping/ scrubbing). Assistance is recommended at this time for the heavier aspects of these duties." OT Quraishi opined that the applicant requires ACBs for some grooming activities and heavier household tasks. However, the respondent maintains that despite the fact that it approved the benefit, the applicant has not submitted proof that the benefit has been incurred as per s.3(7)(e) of the Schedule. As a result, she is not entitled to payment of same.

13Both parties agree that the applicant requires ACBs as a result of her accident-related impairments. However, they disagree on the amount. The following chart summarizes both OT's recommendations for weekly ACBs, and my analysis will follow:

OT Kaur's Form 1 dated October 22, 2021	OT Quraishi' Form 1 dated February 3, 2022
Level 1: Dressing= 280 mins Grooming= 190 Feeding = 420 mins Total = 890 mins week	Level 1 Dressing = 0 Grooming=40 mins Feeding = 0 Total = 40 mins
Level 2: Bathroom Hygiene = 105 mins Bedroom Hygiene = 105 mins Laundry and Clothing Care =285 mins Total: 495 mins week	Level 2 Bathroom Hygiene = 20 mins Bedroom Hygiene = 15 mins Laundry = 20 minutes Total = 55 minutes
Level 3: Bathing = 70 mins Total = 70 mins week	Level 3 = 0
$1,552.92	$108.57

14Generally, I find the time recommended by OT Kaur in the Form 1 for the different levels of ACBs consistent with the applicant's accident-related functional limitations and more practical as far as the time the OT allotted for assistance with the various tasks which I will discuss further below.

Level 1

15Regarding Level 1 care, I prefer OT Kaur recommendation of 280 minutes per week for assistance with dressing and undressing, which amounts to 20 minutes per day over OT Quraishi's recommendation of 0. Although I acknowledge that the applicant inconsistently reported to a few assessors that she was independent with self-care, overall, I find she consistently reported to the majority of the assessors throughout the claim that she experienced limitations with dressing and required her husband's assistance. I also find that she consistently reported her other functional limitations in carrying out her activities of daily living which is why I find the applicant to be credible.

16I find the medical evidence supports that the applicant's pre-existing shoulder impairment was exacerbated as a result of the accident which resulted in difficulty with overhead reaching, reaching down, lifting, and carrying. In addition, the applicant consistently reported to assessors that she could put on loose clothing but required her husband's assistance with fastening her bra and donning socks because she was unable to reach behind or touch her toes. She also reported having to lie down to get dressed after bathing. As a result, I find the amount of time OT Kaur recommended for assistance with this task reasonable. In contrast, OT Quraishi's report indicated that they observed the appellant put on socks and did not observe any functional limitations that would interfere with her ability to dress and undress. I find OT Quraishi's observations inconsistent with the totality of the medical evidence before me. Further, I find it inconsistent with the OT's finding that the applicant demonstrated reduced ROM in her right upper extremity and lower back, decreased bending, lifting, sustained reaching, and tasks that require use of bilateral upper extremities.

17I also accept the 190 minutes per week recommended by OT Kaur for grooming which can be broken down as follows: 10 minutes per day for brushing hair, 20 minutes 3 x per week for shampooing and blow-drying hair, 10 minutes 4 x a week for styling hair, and 20 minutes per week for nail care. In contrast OT Quraishi recommended 15 minutes 2 x per week to blow dry and style the applicant's hair and 10 minutes for nail care. I find OT Quraishi's recommendation for grooming inconsistent with the OT's other recommendations and the time allotted for assistance with these tasks insufficient. For example, I find that if the applicant cannot blow dry and style her own hair because of her right shoulder impairment then she would be limited in brushing, shampooing, and styling her hair as well. Further, I find that she would need assistance with these tasks more than twice a week.

18The applicant reported to assessors that she can prepare light meals such as soups and salads and use the air fryer or eats takeout. OT Kaur recommended that the applicant receive 420 minutes per week for meal prep which amounts to 60 minutes per day 7 x a week. In contrast, OT Quraishi recommended zero as the applicant could reach into the cupboard and the fridge and could make light meals. I accept OT Kaur's recommendation. Although the applicant reported she could make light meals, I find the applicant requires assistance with meal preparation to ensure she is eating well balanced nutritional meals on a consistent basis. In addition, OT Quraishi's report noted that the applicant had a standing tolerance of 7 minutes which I find would likely interfere with the applicant's ability to carry out meal prep.

19For the above-noted reasons, I accept the ACBs recommended by OT Kaur for Level 1 ACBs in the amount of $950.37.

Level 2

20I also prefer the amount of time allotted on OT Kaur's Form 1 for bathroom and bedroom hygiene. OT Kaur recommended 15 minutes x 7 days a week for assistance with cleaning the tub, shower and sink after each use for a total of 105 minutes per week, whereas OT Quraishi recommended 10 minutes twice a week for assistance with this task. I find 15 minutes per day to assist with these tasks reasonable due to the applicant's limitations with bending and reaching. Further, OT Quraishi's report provided no rationale for why assistance was only being provided twice a week. I find the time allotted inconsistent with the OT's findings regarding the applicant's functional limitations with her upper extremities. I also find the applicant would require assistance with these tasks on a daily basis to ensure bathroom hygiene.

21For the same reasons, I prefer OT Kaur's recommendation of 105 minutes per week to assist with bedroom hygiene (15 minutes per day) to assist with changing the applicant's bedding, making the bed, and cleaning the bedroom. The applicant reported to assessors that prior to the accident, she had a cleaning lady come in once a month, however, she relies on her sister to change her bedding. OT Quraishi recommended that the applicant receive 15 minutes per week to assist with this task and did not provide any rationale for why. I find this was inconsistent with the OT's observations of the applicant's home which noted items on the floor because the applicant was unable to bend down to pick them up. Further, I find the time recommended by OT Quraishi for this task insufficient to ensure bedroom hygiene on a consistent basis.

22I do not accept OT Kaur's recommendation that the applicant requires 105 minutes per week for assistance in preparing her daily apparel. I find the applicant has the functional capacity to access her clothing. However, I do find 180 minutes per week recommended by OT Kaur for laundry care at 60 minutes 3 x a week to be reasonable. The applicant reported to assessors that her husband loads and unloads the laundry into the washer and dryer and that she can sit and fold laundry. OT Quraishi recommended 20 minutes once a week for assistance with loading and unloading which I find insufficient time to fully complete the task. I find OT Kaur's recommendation more reasonable because additional time would be necessary to assist the applicant in transporting the laundry once folded to hang and put away.

23I find the applicant is entitled to 390 minutes per week for Level 2 ACBs, which when calculated as per the formula on the Form 1 equals $391.30 per month.

Level 3

24I accept OT Kaur's recommendation of 10 minutes per day x 7 days a week for assistance with bathing for a total of 70 minutes a week. Although I agree with the respondent that the applicant was inconsistent in her self-reports to assessors that she was independent with bathing, she clarified to most that it takes her up to two hours to bathe and get dressed and that she requires a stool in the shower. In my view, the time it takes for the applicant to bathe and get dressed supports that she has functional limitations in carrying out this task. In determining that the applicant does not require assistance with bathing OT Quraishi's report stated that the applicant was observed to have a walk-in shower with a shower chair with back in her ensuite full bathroom. OT Quraishi determined that "based on ROM, MMT, and functional observations, the claimant demonstrated functional abilities to complete tasks with pacing." I also find OT's Quraishi's recommendations of zero inconsistent with the OT's findings that the applicant had functional limitations in her ability to shampoo and blow dry her hair because of her right shoulder impairment.

25For the above-noted reasons, I find the applicant has established that she is entitled to a monthly ACB in the amount of $1,446.57 per month. Neither party addressed the time period, in which the ACBs are in dispute. As noted above, s 42(5) of the Schedule states that an insurer may, but is not required to, pay an expense incurred before a Form 1 that complies with this section is submitted to the insurer. In this case, there is no evidence before me that supports that the applicant submitted a Form 1 until October 21, 2021, which would be the date the applicant has established entitlement to the benefit.

26However, although I have determined that the applicant has proven her eligibility for the benefit, she is not entitled to payment because she has not proven that the benefit has been incurred pursuant to s.3(7)(e) of the Schedule. In her reply submissions, the applicant maintains that the lack of evidence supporting that ACBs were incurred should not prejudice her claim in the presence of evidence supporting her entitlement. The applicant did not submit any authority which supports her position.

27I find the language in s. 19 of the Schedule clear that an insurer is only liable to pay for incurred ACBs. Further, s.3(7)(e) of the Schedule defines what is required to meet the definition of incurred. I find the applicant has not submitted any proof that she paid for, or promised to pay for, or became legally obligated to pay for, the service to which the expense relates, as required by the Schedule. Nor, did she submit any evidence that supports that any services performed by either her husband or sister resulted in an economic loss. As a result, I find that the applicant has not met her onus in proving that ACBs have been incurred.

28For the above-noted reasons, the applicant is not entitled to payment of ACBS in the amount of $1,446.57 from October 21, 2021, to date, because she has not proven that the benefit has been incurred.

Medical Benefits

OCF-18 for assistive devices in the amount of $1,199.10 ($1,224.81 less $25.71 approved), proposed by Q medical dated November 15, 2021

29I find the balance of the OCF-18 in the amount of $1,199.10 for assistive devices reasonable and necessary.

30To receive payment for a treatment and assessment plan under s. 14 and 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. 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.

31The OCF-18 dated November 15, 2021, was prepared by Dr. Payan, chiropractor, and the goals were to increase, maintain, and improve the functional capabilities of the applicant and facilitate independence in activities of daily living. The OCF-18 recommended that the applicant be provided with a hand-held reacher ($39.00); natural bristle scrub brush ($20.80); a robotic vacuum ($650.00), a non-slip interior bath matt ($28.60); and exterior bath matts ($45.50) plus $200.00 for the completion of the treatment plan and $100.00 for delivery for a total cost of $1,224.81. These assistive devices were also recommended in the above-noted report of OT Kaur.

32The respondent sent the applicant an explanation of benefits (EOB) dated February 17, 2022, where it partially approved the OCF-18 in the amount of $25.71 for the hand-held reacher. The letter advised the applicant that the respondent was relying on the IEs of Dr. Safir and OT Quraishi dated February 3, 2022. Further, it submits that the Financial Services Commission of Ontario ("FSCO") Cost of Goods Guideline June 2016, supports that the retail price of an item is the lowest price, including delivery charges, duties, taxes that would be payable by or on behalf of an insured person to acquire the item from a source that is available to a member of the general public in Ontario.

33I find that the applicant has established that the remaining assistive devices are reasonable and necessary because as noted above, I prefer OT Kaur's opinion and report and find the applicant requires these assistive devices to regain independence in her activities of daily living. Further, aside from the handheld reacher, neither OT Quraishi or Dr. Safir address the other assistive devices in their reports and explained why they are not reasonable and necessary. Further, there is no evidence before me that the cost of the remaining assistive devices fall outside of FSCO's Cost of Goods Guideline. As a result, I find the applicant is entitled to the balance of the OCF-18 in the amount of $1,199.10.

Four remaining OCF-18s for Medical Benefits

34The applicant is not entitled to the remaining OCF-18s in dispute because she did not address them at all in her submissions and direct me to the evidence to support that they are reasonable and necessary. This includes the OCF-18 dated March 11, 2022, in the amount of $1,654.80 proposed by E Clinic for assistive devices and the three OCF-18s for massage and physiotherapy for various amounts proposed by Uptown Physical Rehabilitation.

35The respondent submits that it partially denied the OCF-18 for assistive devices (which included meditation candles, salt lamp, incense set, muses brain sense headband, mindful crystal set, cards for calm, meditation chair, mat, cushion, bluetooth speaker, room divider, back roll, yoga blocks and yoga wheel) because it deemed the devices to be experimental in nature pursuant to s.15(2) (a) of the Schedule. The respondent relies on the IE report of Dr. Saghatoleslami who concluded that these devices were not reasonable and necessary. As noted above, the applicant did not discuss these devices at all in her submissions or explain why they are reasonable and necessary. In the absence of any evidence rebutting the IE doctor's opinion, I conclude that the applicant has not met her onus in proving that the denied portion of the OCF-18 for assistive devices is reasonable and necessary.

36The respondent denied the three OCF-18s for physical therapy and massage based on the IEs of Dr. Safir who determined that the applicant had achieved maximum medical recovery from formal facility based physical rehabilitation and that further facility-based treatment is not reasonable and necessary. As noted above, the applicant's submissions did not address these OCF-18s at all or direct me to the evidence to support that they are reasonable and necessary. The applicant's document brief was over 3000 pages. I note that some of the applicant's assessors' reports recommend that the applicant receive additional physical therapy. However, it is well established law that it is not the trier of fact's role to review thousands of pages of medical records that the trier has not been directed to consider.

37The applicant also failed to 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. For these reasons, I find she has not met her onus in proving on a balance of probabilities that the OCF-18 for assistive devices and the three OCF-18s for physiotherapy and massage are reasonable and necessary.

Cost of Examination Expenses

OCF-18 in the amount of $1,050.00 for a nutritional assessment, proposed by E Clinic United Healing in a plan dated June 24, 2022.

38I find the nutritional assessment in the amount of $1,050.00 to be reasonable and necessary.

39Section 25 (5) of the Schedule provides that an insurer shall not pay more than $2,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019, in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer.

40On June 24, 2022, the applicant submitted an OCF-18 in the amount of $1,050.00 for a nutritional assessment, proposed by E Clinic United Healing. The goal of the assessment was to explore current dietary habits that could positively influence the applicant's pain symptoms and psychological well-being. The applicant gained weight post-accident and the OCF-18 noted that significant weight gain could lead to further exacerbation of the applicant's physical and psychological symptoms.

41The respondent sent the applicant an EOB dated July 22, 2022, denying the OCF-18 on the basis that there was insufficient medical evidence of an accident-related nutritional deficit which would require a nutritional assessment. The respondent relied on Dr. Saghatoleslami's IE report dated June 25, 2021, where the applicant reported that she had been trying to lose weight before the accident by going for walks. Further, she also reported to the doctor that she is eating healthy, but sometimes has no energy for preparing meals and ends up eating late and getting takeout. The respondent argues that the applicant had issues with weight which pre-dated the accident and relies on the pre-accident insurance form prepared by the applicant's family doctor where the doctor notes that the applicant "tries to eat well but may binge when she is upset. Has gained weight and this really affects her mentally and physically."

42I find that the applicant has established on a balance of probabilities that the nutritional assessment is reasonable and necessary. I find the evidence supports that the applicant consistently reported to assessors that she gained 50 pounds post-accident. In addition, she also reported that her weight gain interfered with her ability to be intimate with her husband. I find the applicant credible as she was forthright with assessors about her pre-accident health issues and functional limitations. I also find the post-accident CNRs of the applicant's family doctor note ongoing weight gain which was attributed to her lack of mobility because of low back pain as a result of the accident. Although the applicant may have had issues with weight and poor eating habits pre-accident, I find on a balance of probabilities that the accident exacerbated this issue. For these reasons I find the nutritional assessment reasonable and necessary.

OCF-18 in the amount of $2,486.00 for a psychological assessment, proposed by Q medical in a plan dated September 16, 2021.

43I find the psychological assessment in the amount of $2,486.00 to be reasonable and necessary.

44Section 38(8) of the Schedule supports that within 10 days after an insurer receives an OCF-18, the insurer shall give the insured person a notice that identifies any services that the insurer does not agree to pay for, and the medical and other reason that they do not agree to pay for those services. Section 38(11)(2) states that if an insurer fails to comply with section 38(8), the insurer shall pay for the goods described in the treatment plan.

45On September 16, 2021, the applicant submitted an OCF-18 in the amount of $2,486.00 for a psychological assessment, proposed by Dr. Mandel which requested $2,000.00 for the assessment, $200 for preparing the OCF-18 plus tax. The goal of the assessment was to identify if a psychological impairment exists and formulate recommendations to assist in alleviation of symptoms and return to normal activities. In the additional comments section, the assessor provided more information on the pain and challenges the applicant had been experiencing. The applicant argues that the OCF-18 for a psychological assessment is reasonable and necessary because this was the first psychological assessment requested following the accident. Moreover, the fact that she had been receiving psychological treatment for reasons which were unrelated to the accident are irrelevant. The assessment was necessary to assess whether she sustained a psychological impairment because of the accident and recommend treatment. The applicant also submits that the respondent did not provide a medical reason for the denial, so she incurred the assessment.

46The respondent sent the applicant an EOB dated October 20, 2021, denying the OCF-18 on the basis that the applicant's health practitioner noted that her injuries were Sprain and Stain of the Thoracic Spine, Sprain, and Stain of the Lumbar Spine, Whiplash WAD 2, Sprain and Stain of the shoulder joint, Sprain and Stain of the shoulder girdle. Further, based on the long-term disability form dated August 11, 2021, completed by her family doctor, the applicant was already seeing a psychotherapist every two weeks to address her symptoms. In addition, the respondent had approved 13 psychotherapy sessions with that therapist and indicated that since she was already actively attending treatment the assessment was a duplication of services from another provider.

47I find the respondent did provide a medical reason in its EOB in that it stated that the applicant sustained strain and sprain impairments because of the accident. Further, it summarized the medical records it was relying on in support of its denial. However, I find the OCF-18 reasonable and necessary for the following reasons.

48Even though the applicant had been attending psychological treatment before the accident, I find the psychological assessment reasonable and necessary because the purpose of this assessment was to determine whether she sustained a psychological impairment because of the accident and recommend treatment. I find this was not a duplication of services. As highlighted by the applicant, the respondent carried out its own psychological IE by Dr. Saghatoleslami to assess whether she sustained an accident-related psychological impairment. The doctor diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, specific phobia; situational (driving on highways) in partial remission. The doctor opined that the applicant had not reached maximum medical recovery and recommended that the applicant receive psychological treatment. In my view, this supports that the psychological assessment proposed by the applicant was reasonable and necessary. In addition, I find it reasonable for the applicant to have her own assessment completed to diagnose any accident-related impairment for the purpose of recommending treatment.

49The respondent also argues that the OCF-18 proposed a lump sum for the assessment and exceeded the rates allowed by the Financial Services Commission of Ontario's ("FSCO") Professional Service Guideline ("Guideline"). Other than making this broad argument the respondent did not articulate how the OCF-18 exceeded FSCO's Guideline. I find the cost of the OCF-18 reasonable because it complies with s. 25(5) of the Schedule. As a result, I accept the amount of $2,486.00 proposed in the OCF-18 as reasonable.

OCF-18 in the amount of $2,486.00 for a chronic pain assessment, proposed by Q medical in a plan dated September 16, 2021.

50The applicant is not entitled to the chronic pain assessment in the amount of $2486.00 for the following reasons.

51On September 16, 2021, the applicant submitted an OCF–18 in the amount of $2,486.00, for a chronic pain assessment proposed by Dr. Payan, chiropractor. The goal of the assessment was to determine the mechanism of the applicant's pain through documentation of pain onset, location, quality, progression, character, intensity, frequency, duration, migration pattern and precipitating and aggravating factors. Further to identify barriers to recovery, impairments, limitations in activities of daily living and recommendations to facilitate and improve functioning to pre-accident levels. The OCF-18 referred to the family doctor's CNRs and reports of the OT Jessica Beatty, which noted ongoing pain which was interfering with sleep and exacerbated when carrying out daily activities. It also indicated that the applicant had sustained a secondary injury to her back in March 2021 while trying to pick up a light box. The applicant submits that the accident exacerbated her pre-existing issues, and the chronic pain assessment is reasonable and necessary because of the complex nature of her symptoms and is crucial for an accurate diagnosis to ensure an effective course of treatment.

52The respondent sent the applicant an EOB dated October 20, 2021, denying the OCF-18 on the basis that the applicant's accident-related impairments were noted as strain and sprain impairments. Further, the medical documentation it had received from the applicant's health practitioner indicates that her family doctor had recently referred her to Allevio Pain Management Clinic on September 15, 2021, and that she had subsequently been booked for infusions. As a result, the respondent determined that the chronic pain assessment was not reasonable and necessary because it was a duplication of services from another provider. The respondent relies on s. 47(2) of the Schedule which supports that an insurer is not required to pay for an expense for which payment is available under any insurance plan or law.

53The applicant asserts that the respondent's denial of the OCF-18 did not provide a medical reason, so she incurred the cost of the assessment. She also disagrees that the chronic pain assessment is a duplication of services because the assessment has a unique purpose and involves different providers with distinct expertise. The applicant submits that the IE report of Dr. Saghatoleslami dated February 3, 2022, agreed that the applicant has ongoing residual pain, that she had been diagnosed with fibromyalgia which had intensified her distress in relation to somatic pain symptoms.

54I find the applicant has not proven on a balance of probabilities that the OCF-18 for a chronic pain is reasonable and necessary. I find the respondent did provide a medical reason in its EOB in that it stated that the applicant sustained strain and sprain impairments because of the accident. Further, it indicated that the medical information it had received to date supported that the applicant had been referred to a clinic post-accident by her family doctor to treat her chronic pain symptoms. I agree with the respondent and find that the OCF-18 was a duplication of services because she was already attending a clinic to treat her accident-related chronic pain symptoms. I find the applicant failed to explain the unique purpose or special expertise which the disputed OCF-18 for the chronic pain assessment was meant to address.

OCF-18 in the amount of $2,316.50 for an MRI, proposed by Q medical in a plan dated April 27, 2021.

55I find the applicant is not entitled to the OCF-18 in the amount of $2,316.50 for an MRI.

56On April 27, 2022, the applicant submitted an OCF-18 in the amount of $2,316.50 for an MRI proposed by Dan Shlepakov, chiropractor. The purpose of the MRI was to investigate and understand the extent of the damage caused by the accident. The plan referred to the chronic pain assessment report of Dr. Haider dated April 21, 2022, which noted that the applicant was experiencing ongoing pain. The doctor recommended an MRI of the applicant's lumbosacral spine to rule out lumbar disc herniation and pathology of the right sacroiliac joint. The applicant submits that she could not wait for an OHIP covered appointment because of her pain and discomfort and that the MRI was needed on an urgent basis.

57The respondent denied the assessment on the basis that the MRI could be funded by OHIP pursuant to s. 42(7) of the Schedule. It relied on this Tribunal's decision in Luluquisin v. Aviva Insurance Company of Canada, 2022 CanLII 14950 (ON LAT) where the adjudicator determined that the applicant was not entitled to an examination expense because it was reasonably available by an OHIP funded care provider.

58I find the applicant has not established that the OCF-18 for an MRI is reasonable and necessary as the expense is covered by OHIP. Although Dr. Haider recommended that the applicant undergo an MRI the doctor did not indicate in their report that it was required on an urgent basis. Nor did the applicant provide any evidence supporting that there was a lengthy wait time in having an MRI completed through OHIP coverage. The applicant also did not submit any authority to support that the MRI is covered by the Schedule. As a result, I find the applicant has not met her onus in proving her entitlement to this examination expense.

Interest

59Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find the applicant is not entitled to interest on ACBs because she has not provided proof that the benefit has been incurred. I find she is entitled to interest on the OCF-18s that I have determined to be reasonable and necessary which includes the OCF-18 for assistive devices in the amount of $1,199.10 proposed by Q medical in the OCF-18 dated November 15, 2021, nutritional assessment in the amount of $1,050.00 dated June 24, 2022; and the OCF-18 for a psychological assessment in the amount of $2,486.00 dated September 16, 2021. She is not entitled to interest on the remaining benefits in dispute because I have determined that they are not reasonable and necessary.

ORDER

60For the above-noted reasons, I make the following order:

1. The applicant has established entitlement to monthly ACBS in the amount of $1,446.57 from October 21, 2021, to date. However, she is not entitled to payment for the time-period claimed because she has not proven that the benefit has been incurred. The applicant is not entitled to interest on overdue payment of benefits because she has not submitted proof that the benefit has been incurred.
2. The applicant is entitled to the following OCF-18s for medical benefits and cost of examination expenses, plus interest: a) $1,199.10 ($1,224.81 less $25.71 approved), proposed by Q medical in the OCF-18 dated November 15, 2021. b) $1,050.00 for a nutritional assessment, proposed by E Clinic United Healing in an OCF-18 dated June 24, 2022; and c) $2,486.00 for a psychological assessment, proposed by Q medical in an OCF-18 dated September 16, 2021.
3. The applicant is not entitled to the remaining OCF-18s for medical benefits and cost of examination in dispute or interest.