Licence Appeal Tribunal File Number: 23-011960/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:
Mokees Ahmed
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Rasha M. El-Tawil, Counsel
For the Respondent:
Kari-Anne Layng, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mokees Ahmed (“the Applicant”) was involved in an automobile accident on November 28, 2020, and sought benefits from Aviva General Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
i. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $162.62 per week, for the period from November 6, 2021, to-date and ongoing?
ii. Is the Applicant entitled to attendant care benefits (“ACBs”) in the amount of $1,065.73 per month, for the period from November 3, 2021, to-date and ongoing?
iii. Is the Applicant entitled to a medical benefit in the amount of $3,047.94 for occupational therapy services, proposed by Pursuit Health Management Inc. in a treatment plan/OCF-18 (“plan”), dated December 17, 2021?
iv. Is the Applicant entitled to a medical benefit in the amount of $4,158.82 for physiotherapy services, proposed by Priyanka Mondal in a plan dated August 25, 2022?
v. Is the Applicant entitled to the treatment proposed by Sarah Humphrey of Pursuit Health Management Inc., as follows:
a) $1,448.00, less $1,175.00 approved by the Respondent for social rehabilitation counselling proposed in a plan, dated December 17, 2021;
b) $5,940.18, less $4,937.78 approved by the Respondent, for social rehabilitation counselling proposed in a plan, dated May 6, 2022;
c) $5,848.40, less $4,846.00 approved by the Respondent, for social rehabilitation counselling proposed in a plan, dated September 30, 2022; and
d) $5,270.400, less $4,140.00 approved by the Respondent, for social rehabilitation counselling proposed in a treatment plan dated May 20, 2023?
vi. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
vii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4The Applicant meets the test for IRBs for the period from November 6, 2021, to-date and ongoing.
5Procedural fairness provides that I make no determination on the quantum of the Applicant’s IRBs and permit him the opportunity to obtain an accountant’s report.
6Either party may re-apply to the Tribunal within 6 months of the release of this decision if they are unable to resolve the issue of the Applicant’s weekly quantum. I am not seized on the issue of the Applicant’s weekly quantum.
7The Applicant is entitled to ACBs at the rate of $1,065.73 per month. He is not entitled to any payment of ACBs because none have been incurred.
8The Applicant is entitled to the OT plan, dated December 17, 2021, and the physiotherapy plan, dated August 25, 2022.
9Interest is payable pursuant to section 51 of the Schedule.
10The Applicant has not demonstrated entitlement to the unapproved balances of the social rehabilitation counselling plans.
11No award or costs are payable.
BACKGROUND
12The Applicant was the driver of a vehicle which was struck from behind while stopped at an urban traffic light. He was taken by ambulance to the hospital and examined. Emergency room physicians diagnosed the Applicant with a mild head injury and soft tissue injuries as a result of the accident. He was discharged home the same day with instructions to take Tylenol as required and follow up with his family physician.
13Shortly after the accident, the Applicant started physiotherapy treatment for his soft tissue injuries. He claims that his symptoms worsened as time passed and he began to experience increased pain in his neck, shoulder, chest, and back. He also complained of migraine headaches and difficulties with his memory and concentration as time passed.
14The Applicant also developed symptoms of anxiety and depression as time passed following the accident.
15The Applicant owned a restaurant and has not worked there or operated it in any way since the accident. He claims that his accident-related impairments prevent him from working and he has since had to close his restaurant.
16The Applicant also claims entitlement to attendant care benefits (“ACBs”), and the treatment and assessment plans as listed above.
ANALYSIS
Income replacement benefits (“IRBs”)
17To be eligible for IRBs during the first 104-weeks following the accident, the Applicant must show that he suffers a substantial inability to complete the essential tasks of his employment at the time of the accident (“the pre-104 test”). To demonstrate this, the Applicant should provide a clear description of his employment and the essential tasks it involves and explain how his accident-related injuries prevent him from completing those tasks.
18To qualify for IRBs after the 104-week mark, the Applicant must demonstrate that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience, pursuant to section 6(2)(b) of the Schedule (“the post-104 test”). To demonstrated this, the Applicant should provide a clear indication of his employment experience, training, and education and explain how his accident-related injuries preclude him from engaging in employment or self-employment for which he is reasonably suited for.
19The Applicant’s education history is limited to completing high school overseas. He has never engaged in any local education or training.
20At the time of the accident, he was a self-employed restaurateur for over 30 years. By all accounts, the Applicant and his wife ran the entire restaurant themselves, with occasional help. He reports that he regularly worked 12-hour days, for a minimum of 6 days a week. Before opening his own restaurant, the Applicant acquired experience in various restaurant and service industry roles.
21Given the Applicant’s education training and experience, I conclude that he is suitable only for employment or self-employment within the service industry, and predominantly with respect to the operation of a restaurant. The Applicant’s education is outdated and would require significant formal training for him to engage in another profession, or alternative roles within the service industry. Given that he has never participated in the Canadian post-secondary education system, I suspect his likelihood of success in such post-secondary programs would also be unlikely considering his impairments, as I will further outline.
22The Applicant’s vocational history is dominated by owning his own restaurant for over 30 years where he performed many of the tasks necessary for it, including the majority of the cooking. He has had no other employment or self employment during this time, and it would be difficult to expect the Applicant to engage in a different role considering that his prior experience was decades ago. Additionally, the likelihood of the Applicant succeeding in a subordinate role, after 30 years of owning his own restaurant, would also be slim.
23I find the clinical notes and records of Dr. B. Bhayana, family physician, to be persuasive evidence demonstrating that the Applicant suffers a complete inability to engage in employment or self-employment for which he is reasonable suited by way of education, training, and experience. During the Applicant’s claim period for IRBs, Dr. Bhayana has consistently diagnosed the Applicant with chronic pain syndrome related to ongoing pain in his neck, bilateral shoulders, and low back. On November 2, 2021, Dr. Bhayana noted the bilateral shoulder pain and noted that the Applicant was experiencing worsening mood in relation to the accident.
24In a note dated December 2, 2021, Dr. Bhayana noted that Cymbalta was not effective for the Applicant and a new recommendation for Amitriptyline was made. During that encounter, it was also noted that massage therapy and physiotherapy were providing temporary relief for the Applicant. The Applicant made similar complaints of anxiety and ongoing neck, shoulder and back pain during visits on February 25, and April 22, 2022. By July 22, 2022, Dr. Bhayana wrote that the Applicant was unable to work in any capacity due to chronic pain from the accident. The Applicant’s pain complaints persisted thereafter, and were similarly record during visits on August 8, October 6, and November 15, 2022, and February 1, 2023. During the visit in February 2023, the Applicant was referred to a pain clinic.
25On March 29, 2023, Dr. Bhayana wrote a letter at the request of the Applicant’s counsel, to provide an update on the Applicant’s status. Dr. Bhayana noted that the Applicant suffers from headaches that are post-traumatic and cervicogenic in nature, with chronic neck, back, and bilateral shoulder pain, PTSD with depression and anxiety, and his sleep is impacted. In the letter, Dr. Bhayana concluded that the Applicant is unlikely to be able to return to his pre-accident work and would require extensive retraining to do other forms of work.
26The Applicant’s physical impairments are compounded by his psychological impairments. The Applicant was referred to Dr. P. Gangdev, psychiatrist, by Dr. Bhayana, due to ongoing psychological symptoms following the accident. During the initial visit and examination, Dr. Gangdev noted the Applicant’s ongoing worries about his health, future, relationships, finances, and that he felt unable to stop worrying or relax. Dr. Gangdev diagnosed the Applicant with major depressive disorder and generalized anxiety disorder arising from the meaning and implications of his losses and impairment. Dr. Gangdev also recommended a review of the Applicant’s medications with a focus on controlling his pain.
27The Applicant’s psychological symptoms continued, including broken sleep due to pain, rumination, negative thoughts, low motivation, and ongoing worries about his future and finances which, altogether, limit his ability to do physical tasks. For this, Dr. Gangdev increased the dosages of the Applicant’s prescriptions for Duloxetine and Trazodone on October 13, 2023.
28On November 13, 2023, Dr. Gangdev recorded that the Applicant continued to experience psychological symptoms. This includes broken sleep, though it has improved slightly in recent time, intermittent worsening pain, confusion, and an inability to function much in general. The Applicant was noted to rely on take-away food because he is unable to cook for himself and continued to ruminate on the loss of his business, pain, impairments, and his financial future. The Applicant’s medications were increased again following this meeting. Similar complaints were recorded on April 24, 2024 and, in response, Dr. Gangdev reduced the Applicant’s dosage of Duloxetine and replaced Trazodone with Mirtazapine.
29The November 12, 2021 report by occupational therapist (“OT”) B. DaSilva, documents that the Applicant is impaired by pain and complains of psychological symptoms. In the report, OT DaSilva noted that the Applicant exhibited functional ROM in the neck, bilateral shoulders, and low back, but experienced end range pain. The assessor found impaired upper body strength and below average bilateral grip strength. It was also noted that the Applicant had multiple psychological complaints such as depressed mood, reduced appetite, poor sleep, irritability, stress and anxiety. OT DaSilva concluded that the combination of the Applicant’s physical and psychological issues disabled him to the point he warranted attendant care assistance.
30In totality, I find that the Applicant suffers from reduced neck, bilateral shoulder, and low back ROM due to ongoing pain related to the accident. Additionally, he suffers from depression and anxiety related to his loss of function and financial losses following the accident. In consideration for the Applicant’s education, training, and experience, I find that the impairments listed above preclude him from engaging in any employment or self employment.
Consideration for the Covid-19 pandemic
31The Respondent submits that the Applicant’s claim cannot be properly considered outside the context of the Covid-19 pandemic. It suggests that the Applicant closed his business due to the Covid-19 pandemic and that his inability to work has a greater connection to that event rather than the accident. It relies on a comment recorded by OT D. Horban, in an IE report, dated March 14, 2022. In that report, OT Horban reports that the Applicant once advised that he closed his restaurant due to the Covid-19 pandemic. OT Horban reported that upon further questioning on the issue, the Applicant “provided responses not congruent with this inquiry”.
32To further support this theory that he closed the restaurant in connection to the pandemic, the Respondent also submits that the Applicant received the Canadian Emergency Relief Benefit (“CERB”) and the Canada Recovery Benefit (“CRB”). It also submits that the Applicant closed his business a month after the accident, sold his home in Windsor, and later moved to a new construction home in the same city as his daughter, and that this suggests that these plans had been in place before the accident, or that the Applicant failed to mitigate his losses by returning to work following the pandemic.
33I cannot rely on the suggestion of OT Horban, that the Applicant closed his business solely due to the pandemic and not due to accident-related injuries. This is because OT Horban gives undue weight to a single comment and failed to elaborate on the issue. OT Horban’s failure to provide the response to follow-up inquiries prohibits the reader from determining whether such a response is indeed incongruent with the inquiry. The Applicant’s comment as recorded in the report by OT Horban, is an outlier that is not repeated to other assessors.
34Moreover, it is possible that both could be true – that the Applicant closed his business due to the pandemic and in accordance with provincial regulations but closed it permanently due to his accident-related impairments. To me, receiving the CERB or CRB prior to the accident, or shortly thereafter, are circumstantial in this situation. It indicates that the Applicant’s income immediately prior to the accident was below the typical threshold that he received prior to the pandemic and he qualified for relief benefits provided due to the Covid-19 pandemic. Though, I acknowledge that, by receiving CERB or CRB following the accident, it likely creates an overpayment situation for a brief period, but that is not at issue before me in this hearing.
The Applicant’s evidence is more persuasive than the IE reports
35I give little weight to the IE report of Dr. S. C. Naaman, dated October 14, 2021. Dr. Naaman indicated that no signs of a concussion or mild traumatic brain injury (“mTBi”) were observed during the assessment, noting that the Applicant was able to provide a history of events, answer questions in a timely and appropriate manner, and reported that he was driving. Dr. Naaman concluded that the examination of the Applicant was normal, despite observed decreased ROM in the low back, and diagnosed him with a cervical strain, bilateral shoulder strain, and lumbar strain, but found no rationale for the subjective level of impairment reported. Further, Dr. Naaman stated that it was unclear what the Applicant’s role within the restaurant at the time of the accident was, but nevertheless concluded that he does not suffer a substantial inability to complete the essential tasks of his pre-accident employment and that his soft-tissue injuries should have resolved within 6-8 weeks of the accident with treatment and a home exercise program.
36Dr. Naaman unreasonably discounts that the Applicant sustained a concussion. Dr. Naaman was asked to confirm the diagnosis as related to the accident, and in response reported that the Applicant sustained sprain and strain injuries to the neck, shoulders, and low back. Dr. Naaman never diagnosed the Applicant with a concussion and, instead, reported that no signs or symptoms of a concussion or mTBi were appreciated during assessment, and that the Applicant was demonstrated appropriate levels of cognition during the assessment and reported that he drives. This contrasts with the note of Dr. K. Nurae, family physician, as recorded in Dr. Naaman’s report, and with the OCF-3 by Dr. Nurae, dated January 10, 2021. According to the documents referenced in the report, Dr. Nurae’s record of December 2, 2020 was that the Applicant was involved in an motor vehicle accident and that he was experiencing neck, bilateral shoulder, and sternum pain, sustained a whiplash disorder, bilateral shoulder strain, mTBI, chest contusion injury. The OCF-3 also notes mTBi as an injury sustained in the accident. Dr. Naaman’s omission of a diagnosis of concussion, in light of the family physician’s contemporaneous notes, is substantial and causes me to discount the opinion because it misleads the reader and downplays the injuries the Applicant sustained in the accident.
37Additionally, Dr. Naaman’s report holds less weight because it determines that the Applicant is able to complete the essential tasks of an “unclear” role. Under vocational history, the report notes that the Applicant was the owner/chef of a restaurant but, when asked to describe his essential tasks of employment, states that his role is unclear. Following a determination that the Applicant’s role was unclear, Dr. Naaman stated that he does not suffer a substantial inability to perform the essential tasks of a chef/owner of a restaurant and that his injuries should have resolved by the time of the assessment. I am left wondering how Dr. Naaman determined that the Applicant did not suffer a substantial inability to complete the essential tasks of his employment, when it was unclear what those tasks were and it is unclear why the Applicant’s injuries have not resolved by this time.
38Dr. Naaman’s paper review reports equally hold little weight. Dr. Naaman issued a paper review report and clarification report, dated March 14, 2022, and May 31, 2022, respectively. In the former, Dr. Naaman reviewed the emergency room records, yet maintained that the Applicant sustained predominantly soft tissue injuries. In contrast to Dr. Naaman’s conclusion, the emergency room reports include a diagnosis that the Applicant sustained a mild head injury, similar to the notes of Dr. Nurae, which stated that the Applicant sustained an mTBi. To me, the failure to acknowledge that the Applicant sustained a concussion until the clarification report, of May 31, 2022, causes me to question the overall integrity of the reports and discount them.
39The Respondent procured additional IE reports with respect to IRBs. The report dated December 2, 2022, by Dr. T. Zdravkovic, physiatrist, concluded that the Applicant continued to not meet the test for eligibility to IRBs. Dr. Zdravkovic found that the Applicant was unable to place his left arm behind his neck or back, demonstrated reduced forward flexion in the low back, difficulty relaxing, tender over the occipital area bilaterally, and that special testing provoked pain in both shoulders. Dr. Zdravkovic found that the Applicant’s impairments are out of proportion for the initial injury sustained in the accident and suggests that his pain complaints could be attributed to degenerative spine issues and his current level of function would be present regardless of the index accident. Dr. Zdravkovic found that the accident just unmasked the underlying pathology.
40Dr. Zdravkovic’s conclusion that the Applicant’s level of function would be present regardless of the accident is based on imaging and reports following the accident. In fact, when asked to opine on the documents relied upon to form the responses to the questions posed, Dr. Zdravkovic listed no documents, assessments, or imaging that pre-date the subject accident, despite reviewing a substantial amount of the Applicant’s pre-accident medical records. This means that Dr. Zdravkovic concluded that the Applicant would present with his current impairment regardless of the accident based solely on information obtained following the accident and never directed the reader to any information pre-dating the accident to suggest that he had any underlying pathology. Accordingly, I fail to see the connection between the Applicant’s post-accident medical care and investigations, and a finding that the accident unmasked underlying pathology, and give little weight to the report of Dr. Zdravkovic.
41In the report, dated December 2, 2022, Dr. J. Out concluded that the Applicant met the criteria for a Major Depressive Disorder with Anxious Distress, persistent, moderate, as well as a Somatic Symptom Disorder with Predominant Pain, moderate to severe. In the report, it was noted of the possibility of symptom magnification in the psychometric testing performed by the Applicant. Dr. Out concluded that the Applicant does not suffer a substantial inability to complete the essential tasks of his employment on the basis that he is self-limiting for fear of aggravating his pain. Dr. Out felt that, from a psychological perspective, returning to work would likely help decrease his symptoms by giving him purpose and providing a distraction from his focus and concentration on pain and disability.
42To me, Dr. Out’s recommendation that the Applicant would benefit from a return to work is speculative because it is not clearly explained in the report. Dr. Out concludes that the Applicant would benefit from having purpose and a distraction in returning to work but does not provide reasons for the opinion. There is no reference to testing or any other information that indicates that the Applicant would experience a decrease in psychological symptoms if he were distracted or had a purpose.
43Lastly, I am not dissuaded by the surveillance evidence provided by the Respondent and find that it generally confirms the functionality documented by Dr. Gangdev and OT DaSilva. According to the Respondent, the surveillance report, dated November 27, 2023, captured the Applicant driving, grocery shopping, and running errands that the Respondent depicts as a normal life, suggesting that he maintains good functional abilities and may be capable of working. I find the surveillance evidence congruent with the Applicant’s reports to his family physician and OT. It shows that the Applicant can run light errands, drive short distances, and he eats fast-food. Moreover, none of the evidence captures the Applicant working, cooking, or performing tasks of employment or self employment.
44Accordingly, I find that the Applicant has demonstrated that he meets the legal test for IRBs for the period from November 21, 2021, to-date and ongoing.
Quantum of IRBs payable
45I find that the quantum of the weekly IRBs payable is at issue, but it cannot be resolved at this hearing.
46The Applicant, in his submissions, stated that the weekly quantum of his IRBs was not in dispute, and led no evidence on the issue. Yet, the Respondent submits that quantum is at issue and claims that the weekly amount payable, if any, is overstated due to information it received after it initially paid IRBs to the Applicant.
47In reply, the Applicant submits that the Respondent’s submissions are the first time it formally suggested that the weekly quantum was in dispute. The Applicant submits that his tax documents were submitted six months prior to the hearing, but the issue was never raised. He submits that he is prejudiced by this because, had the issue been raised earlier, he would have obtained an accountant’s report, pursuant to his right under section 7(4) of the Schedule.
48Procedural fairness provides that a party to a dispute know the dispute before them. The Applicant had no reason to believe that the Respondent intended to dispute the weekly quantum of IRBs. This is because there was no dispute over prior payments, and the Respondent never raised the issue of quantum with him prior to its submissions.
49On the other hand, the onus lies with the Applicant to demonstrate entitlement to IRBs, including quantum. Typically, this would include leading evidence to confirm his income in order to quantify his entitlement. However, it is reasonable for the Applicant to believe that there was no issue over quantum, given the Respondent’s behaviour. To put it another way, this is not a case where the Applicant failed to get an accountant’s report despite his income being at issue – his reported income was never at issue.
50Accordingly, I find that it would be premature for me to determine quantum in these circumstances and refer the matter back to the parties. The Applicant ought to be afforded the opportunity to procure an accountant’s report and make his case.
51Either party may re-apply to the Tribunal within 6 months of the release of this decision if they are unable to resolve the issue of the Applicant’s weekly quantum. This provides the parties with time to assess the quantum and obtain accountant’s reports regarding same, if necessary.
52I am not seized on the issue of the Applicant’s weekly quantum.
Attendant care benefits (“ACBs”)
53I find that the Applicant has demonstrated that he is entitled to claim ACB’s in the amount of $1,065.73 per month.
54I give weight to the report by OT DaSilva because it provides a reasonable recommendation based on the Applicant’s condition wholistically. In addition to my previous comments, I found that the report, OT DaSilva fairly considers the Applicant’s mood and observed and assessed function. The report notes that the Applicant complains of significant physical complaints, multiple cognitive issues, depressed mood, and severe levels of pain. However, OT DaSilva compared that with the physical testing, and observation, which showed that the Applicant’s impairments were less than reported, but present nonetheless and required a reasonable amount of ACBs. For example, OT DaSilva notes that the Applicant reported difficulty traversing stairs, but that it was observed that he could do so with a reciprocal gait while holding on to the rail.
55I agree with OT Da Silva that the Applicant is entitled to ACBs in the amount of $1,065.73 per month. OT DaSilva found that the Applicant requires minimal assistance dressing, some nail care, assistance with meal preparation instead of relying on family, take-out or simple meals, some assistance and support in community with instrumental outings such as shopping for groceries. Given the Applicant’s physical restrictions, it follows that he requires hygiene assistance with bathroom cleaning and tidying the home. He also requires some comfort and security to cope with pain and emotional dysregulation, as well as some assistance with coordination due to cognitive issues. These are all reasonable requests, given the Applicant’s difficulty with bending and reduced ROM due to pain, combined with low motivation stemming from his anxiety and depression symptoms.
56In addition to my prior comments, I give little weight to the report of OT Horban, dated March 14, 2022 because the assessor was unable to look past the Applicant’s overreporting and make recommendations on the observed ability. The Applicant reported a high level of impairment to OT Horban, levels that appear to be higher than reported to OT DaSilva, and he declined several physical tests due to fear of pain. OT Horban reported that at times, casual observation of the Applicant did not correlate with his reported function, or that his function on formal testing was inconsistent with casual observations of function. Overall, OT Horban was critical of the Applicant because observed function was greater than what the Applicant reported.
57Indeed, the Applicant has a tendency to over-report his symptoms, but that does not negate him from being compensated for the observable and evaluated impairment that he suffers from. As noted, OT DaSilva was alive to the issue of the Applicant’s over-reporting but managed to provide recommendations based on observations and in consideration for the Applicant’s psychological impairments which likely have a connection to his over-reporting. OT Horban’s report has virtually no consideration for the Applicant’s depression and anxiety symptoms.
58Accordingly, I find that the Applicant has demonstrated that he meets the legal test for ACBs up to $1,065.73 per month.
The Applicant has not incurred any expenses related to ACBs
59Section 3(8) of the Schedule provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of the benefit, the Tribunal may deem the expense to have been incurred. In this case, I find no reason to deem ACBs to be incurred.
60The Applicant claims that he could not hire a personal support worker given that he was unable to work following the accident. He submits that the Respondent chose to ignore the evidence in the report by OT DaSilva. The Respondent highlights that OT DaSilva’s report was not submitted until February 14, 2023, more than 15 months after the in-home assessment occurred.
61I agree with the Respondent and find that the documents before me confirm that the Applicant submitted OT DaSilva’s report on February 14, 2023, more than 15 months after it was completed. To me, this indicates that the Applicant was uninterested in pursuing ACBs for this period. It cannot be said that the Respondent unreasonably withheld or delayed the payment of a benefit that was not claimed for more than 15 months after discovering the need.
Occupational therapy plan
62I find the OT plan to be reasonable and necessary as a result of the accident.
63The plan proposes OT intervention to facilitate improved participation in activities of daily living (“ADLs”), and a resumption of pre-accident roles and routines. It also sought funding for a heat pad, bathtub seat, and bath scrubber.
64The Applicant submits that this plan is reasonable and necessary based on the assessment and report of OT DaSilva, dated November 12, 2021. The Applicant claims that this plan was denied solely on the premise that he sustained a minor injury. He highlights that he is no longer subject to the minor injury guideline (“the MIG”), yet the Respondent has not yet reviewed the plan in this new context.
65The Respondent submits that the plan was denied on the IE paper review report, by Dr. Naaman, and an in-person assessment with OT Horban. Dr. Naaman’s opinion was that the Applicant sustained a minor injury as a result of the accident, and that OT intervention was not reasonable and necessary. Upon consideration for the emergency room records, which state that the Applicant sustained a mild head injury, Dr. Naaman concluded that the Applicant sustained an injury that is not a minor injury but maintained that OT intervention was not reasonable and necessary.
66To the Respondent, it is not required to revisit this plan once the Applicant was no longer subject to the MIG. This is because the IE assessors found that the plan was not reasonable and necessary in addition to finding that the Applicant’s injuries were predominantly a minor injury.
67The Respondent further disputes that the Applicant has demonstrated that the proposed goods and services will assist his recovery. It submits that the Applicant has led no evidence to support OT intervention, and that a plan, without supporting evidence, is insufficient to make a determination that the goods and services proposed in it are reasonable and necessary as a result of the accident.
68I find that the Applicant has demonstrated that this plan is reasonable and necessary. Contrary to the Respondent’s submissions, the Applicant tendered evidence in support of this plan, by way of the November 12, 2021 report by OT DaSilva. In the report, OT DaSilva clearly states that the Applicant would benefit from OT intervention to facilitate improved participation with ADLs, and a resumption of pre-accident roles, to address the gaps between the Applicant’s current and potential function. OT Da Silva also recommended a heating pad, bath stool, and long-handled loofah. The report notes that the Applicant exhibited reduced grip strength, needed to stand or shift weight during prolonged sitting or standing during the assessment, and could bend only to the knee and had to raise his foot to don socks.
69I find OT DaSilva’s recommendations reasonable and necessary. Recall, I give weight to the report by OT DaSilva over the report of OT Horban because it provides a reasonable recommendation based on the Applicant’s condition wholistically, including his mood and cognitive issues, and observed and assessed function. Accordingly, I give weight to OT DaSilva’s recommendation for the same reason and find the plan for OT intervention and assistive devices to be reasonable and necessary. In the Report, for example, OT DaSilva noted that the Applicant currently requires a provision of ACBs for supervision in the shower because his current unit is not equipped with interventive safety measures such as a shower stool and long-handled loofah. Thus, OT intervention could possibly provide a reduction in ACBs and overall benefit to the Applicant, making the plan reasonable and necessary as a result of the accident.
Physiotherapy plan
70I find the physiotherapy plan, dated August 25, 2022 to be reasonable and necessary.
71The Applicant submits that this plan is reasonable and necessary because the treatment alleviates his pain symptoms and improves his mobility and function. The goals of the plan or to reduce pain, increase ROM, reduce dizziness, and improve ambulation in order to return the Applicant to activities of normal living. He highlights how beneficial these treatments are to him by noting that he has incurred the treatment despite funding being denied by the Respondent
72The Respondent submits that this plan is not reasonable and necessary based on Dr. Zdravkovic’s report, dated December 2, 2022, Dr. Zdravkovic concluded that the Applicant reached maximal medical recovery for the physical injuries sustained in the accident.
73I find that the submission of this plan is contemporaneous with Dr. Bhayana’s recommendation for the Applicant to exercise and engage in physiotherapy. On December 2, 2021, Dr. Bhayana referred the Applicant to physiotherapy. During a follow up visit, on January 9, 2022, Dr. Bhayana noted that chronic pain was challenging the Applicant’s ability to do activity. On April 22, 2022, Dr. Bhayana again encouraged the Applicant to exercise. On July 2, 2022, Dr. Bhayana noted that the Applicant was approved for physiotherapy and was hopeful it would help, and on August 8, 2022, Dr. Bhayana recorded that the Applicant’s shoulder pain increased to the point that he was unable to doff his shirt independently. Taken together, these recommendations indicate that the Applicant requires ongoing exercise and needs support in doing so. Thus, I find physiotherapy treatment to be reasonable and necessary as a result of the accident.
Social rehabilitation counselling plans
74I find that the Applicant has not demonstrated that the unapproved balance of the social rehabilitation counselling plans.
75The unapproved balance relates to the hourly rate of the service provider. The Applicant claims that the service provider is entitled to a rate of $128.00 per hour, and the Respondent disagrees and submits that $100.00 per hour is a fair rate because a social worker is an unregulated service provider.
76The Applicant claims entitlement to the unapproved balance of the social rehabilitation counselling plans on the grounds that it is up to the parties to determine the reasonable rate for social work counsellors. He submits that it is becoming increasingly more difficult to find a psychologist willing to provide these services and relates the difficult to insurer’s cuts to the hourly rates for social workers.
77The Respondent submits that the service provider is not entitled to a rate of $128.00 per hour, as proposed in the plans. Instead, it submits that the service provider, a social worker, is an unregulated professional, entitled to a rate of $58.19 per hour. It submits that the rate of $100.00 per hour, is reasonable and the Applicant has not demonstrated why the rate is unreasonable.
78I agree with the Respondent and find that the Applicant has not met his onus to demonstrate entitlement to the unapproved balance of the social rehabilitation counselling plans. Services provided by a social worker are not covered under the Professional Services Guideline (the “PSG”). As such, they fall under the category of an unregulated service provider, entitling them to an hourly rate of $58.19 per hour.
79The Applicant has not demonstrated that the service provider has special training or experience to warrant an enhanced hourly rate. Indeed, there have been situations where the Tribunal has found that unregulated service providers, such as social workers or psychotherapists, are entitled to an enhanced hourly rate due to specialised training or experience, or that they are providing services akin to a psychologist, who is entitled to a rate of $149.61 per hour. In this case, there is no information on the service provider, nor the services provided, to suggest that they are entitled to the enhanced rate.
80Accordingly, I find that the Applicant has not met his onus to demonstrate that the social rehabilitation counselling plans are reasonable and necessary as a result of the accident.
Interest
81Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found some benefits payable, it follows that interest is also payable on those benefits.
Award
82The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
83The Applicant submits that the Respondent’s conduct throughout the course of his claim has caused him great financial and emotional stress, which has compounded the effects of his injuries and hindered his recovery. He submits that the Respondent demonstrated excessive, imprudent, stubborn, inflexible, and unyielding attitude towards the adjustment of his claim, it disregarded the whole of the medical evidence before it, neglected its duty of good faith to the Applicant, failed to provide benefits that are clearly reasonable and necessary, unreasonably withheld benefits to the Applicant’s detriment.
84He further submits that the Respondent relied on incomplete or defective IEs, or at the least, misinterpreted and failed to apply the medical information contained in the reports. He submits that the Respondent ignored the records and recommendations of every medical professional except for its own assessors.
85The Respondent submits that this is not the case for an award because it adjusted the Applicant’s claim on a timely basis and in good faith, consulting with assessors as appropriate and acting on their recommendations.
86I find no award payable.
87The Respondent is permitted to rely on the advice of the IE assessors, as it did in this case. While I have been critical of the IE reports, they remain reasonable in light of the discrepancies between the Applicant’s reported function and observed function. Thus, it is reasonable to rely on the opinions in the reports. Accordingly, I find no award payable.
Costs
88I find no costs payable.
89The Applicant sought costs in the amount of $2,500.00 to compensate for his legal fees in preparation for this hearing. The Respondent submits that the Applicant’s request for costs should be dismissed because the Applicant provided no authority to support it.
90Costs may be payable when a party in a proceeding acts unreasonably, frivolously, vexatiously, or in bad faith. The amount of costs should not exceed more than $1,000.00 for each full day of attendance at a motion, case conference, or hearing.
91I find no costs payable because no party exhibited unwarranted behaviour during the hearing which warrant costs. At most, the Respondent raised an issue at the hearing that was not previously raised. However, in doing so, it has not acted unreasonably, frivolously, vexatiously, or in bad faith. Accordingly, I find no costs payable.
CONCLUSION AND ORDER
92The Applicant meets the test for IRBs for the period from November 6, 2021, to-date and ongoing.
93Procedural fairness provides that I make no determination on the quantum of the Applicant’s IRBs and permit him the opportunity to obtain an accountant’s report.
94Either party may re-apply to the Tribunal within 6 months of the release of this decision if they are unable to resolve the issue of the Applicant’s weekly quantum. I am not seized on the issue of the Applicant’s weekly quantum.
95The Applicant is entitled to ACBs at the rate of $1,065.73 per month. He is not entitled to any payment of ACBs because none have been incurred.
96The Applicant is entitled to the OT plan, dated December 17, 2021, and the physiotherapy plan, dated August 25, 2022.
97Interest is payable pursuant to section 51 of the Schedule.
98The Applicant has not demonstrated entitlement to the unapproved balances of the social rehabilitation counselling plans.
99No award or costs are payable.
Released: October 16, 2025
Brian Norris
Adjudicator