Licence Appeal Tribunal File Number: 23-005984/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:
Kayla Howlett
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Dagmara Szczudlo
APPEARANCES:
For the Applicant:
Piera Segreto, Counsel
Rahul Malhotra, Counsel
For the Respondent:
Peter Trueman, Counsel
Court Reporter:
Zahra Ahmad
HEARD by Videoconference:
September 24, 25, and 26, 2024
OVERVIEW
1Kayla Howlett, the applicant, was involved in an automobile accident on February 23, 2018, 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, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a post-104 income replacement benefit in the amount of $185.00 per week from May 4, 2023 to ongoing?
ii. Is the applicant entitled to $2,646.15 for a passenger/driver assessment, proposed by Marjorie Green in a treatment plan/OCF-18 (“plan”) dated January 6, 2023?
iii. Is the applicant entitled to $7,345.00 ($21,357.00 less $14,012.00 approved) for a catastrophic impairment assessment, proposed by Omega Medical Associates in a treatment plan submitted February 3, 2023?
iv. Is the applicant entitled to $1,512.36 for physiotherapy services, proposed by Live Well Active Therapy in a treatment plan submitted February 9, 2023?
v. Is the applicant entitled to $1,135.00 in costs for document disbursements provided to the respondent in preparation for the hearing?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3At the hearing, the parties agreed that the quantum for post-104 IRBs is $185.00 per week instead of $400.00 per week as listed in the Case Conference Report and Order released March 14, 2024 (“CCRO”). This is reflected in the issues above.
4At the hearing, the parties clarified that the OCF-18 proposed by Marjorie Green, dated January 6, 2023, is for a passenger/driver assessment and associated costs proposed by an occupational therapist, not psychological services as listed in the CCRO. This is reflected in the issues above.
5At the hearing, the applicant requested the addition of entitlement to costs of $1,135.00 for document disbursements provided to the respondent in preparation for the hearing. This is reflected in the issues above.
RESULT
6The applicant is not entitled to post-104 IRBs.
7The applicant is entitled to $2,646.15 for a passenger/driver assessment plan dated January 6, 2023.
8The applicant is not entitled to the unapproved portion of the plan for catastrophic assessments dated February 3, 2023.
9The applicant is not entitled to $1,512.36 for physiotherapy services, outlined in a plan dated February 9, 2023.
10The applicant is not entitled to costs.
11The applicant is not entitled to “costs” of document disbursements.
12The respondent is not liable to pay an award.
13Interest is payable on any overdue amounts in accordance with s. 51 of the Schedule.
PROCEDURAL ISSUES
Written motion to exclude respondent’s productions denied
14At the outset of the hearing, I declined the applicant’s motion to exclude the respondent’s productions at the hearing.
15The applicant filed a written motion on August 9, 2024 to exclude the respondent’s productions. The applicant submitted that the respondent served incomplete documents on July 31, 2023, late and in violation of the document exchange deadlines listed in the CCRO. Furthermore, copies of all clinical notes and records (“CNRs”) of insurer examination (“IE”) assessors were not provided in advance of the hearing as outlined in the CCRO, despite the fact that executed authorizations were provided by the applicant. The applicant submitted that late filing, and the omission to provide IE CNRs, resulted in procedural unfairness and placed the applicant at a disadvantage in preparing for the hearing and requested that the respondent should not be allowed to rely on any part of its productions at the hearing.
16While I agree that the respondent served and filed documents late and in violation of the deadlines set out in the CCRO, and omitted documents which were agreed to be produced at the case conference, I denied the applicant’s motion. Pursuant to s. 15 (1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, a tribunal may admit into evidence any relevant document or thing.
17I find that since the original hearing scheduled for August 27 to August 29, 2024 was adjourned to late September, the applicant had an additional month to cure the delay caused by the respondent’s late filing and had access to a majority of the documents required to prepare for the hearing.
Oral motion to cross-examine Mr. Ian Heritage denied
18On the first day of the hearing, I declined the applicant’s oral motion to cross-examine Mr. Ian Heritage, the respondent’s adjuster.
19The applicant requested that the hearing proceed with cross-examination and re-direct of Mr. Heritage. The applicant argued that Mr. Heritage was present at the hearing and should answer questions on how the applicant’s file was adjusted.
20The respondent opposed the applicant’s request and argued that Mr. Heritage was not summoned for the hearing and was not listed on either party’s witness list.
21I find that the parties were ordered to exchange and file their final witness lists 30 days before the hearing in the CCRO. I note that the applicant’s witness list was filed with the Tribunal on July 26, 2024 and did not include Mr. Heritage. The respondent’s witness list was filed with the Tribunal on July 31, 2024 and also did not include Mr. Heritage.
22In the circumstances, I declined the applicant’s request to cross-examine Mr. Heritage, pursuant to s. 15(1) and s. 25.0.1 of the Statutory Powers Procedure Act. The Tribunal has the power to determine its own procedures and practices and control the process. Furthermore, as per Rule 8 of the Licence Appeal Tribunal Rules, the applicant did not file a Request for Summons with the Tribunal for this witness. I found that permitting cross-examination of the respondent when he was not summoned to act as a witness at the hearing would be procedurally unfair and declined this oral motion.
Oral motion to exclude expert reports denied
23On the second day of the hearing, I declined the applicant’s oral motion to exclude the following expert reports from the hearing:
i. Dr. Rodney Day, psychologist, dated April 6, 2023 (re: OCF-18/driving assessment) and April 12, 2023 (re: post-104 IRB);
ii. Dr. Pankaj Bansal, general practitioner, dated April 12, 2023 (re: post-104 IRB); and
iii. Mr. Luigi Grimaldi, vocational assessor, dated April 12, 2023 (three reports with the same date including Functional Abilities Evaluation [“FAE”], Vocational Evaluation with Transferable Skills Analysis, and Labour Market Survey).
24The applicant requested that the above reports be excluded on the basis that acknowledgement of expert duty forms and curriculum vitae (“CV”) for these individuals were not provided in advance of the hearing. The applicant also submitted that Dr. Day’s CNRs were not submitted as per the CCRO and therefore his final report should not be admitted as evidence.
25The respondent submitted three separate acknowledgement of expert duty forms from IE assessors as well as their CVs to the Tribunal and the applicant on September 25, 2024, the second day of the hearing. On the same date, the respondent also served and filed a document request letter addressed to Seiden Health Management Inc. dated June 26, 2024. This letter requested complete clinical notes and records, all raw data, CVs and signed acknowledgements of expert duty forms from this provider. There was no evidence presented that the requested documents were served and filed in advance of September 25, 2024.
26Pursuant to Rule 9.4 of the Common Rules of Practice and Procedure, October 2017, if a party fails to comply with any Rules, directions or order with respect to disclosure or inspection of documents or things, that party may not rely on the document or thing as evidence without the consent of the Tribunal.
27While I agree that the respondent served and filed the required documents late and in violation of the deadlines set out in the CCRO, I denied the applicant’s motion. Pursuant to s. 15 (1) of the Statutory Powers Procedure Act, a Tribunal may admit into evidence any relevant document or thing. I provided a 20-minute recess for the applicant to review the expert duty forms and CVs and consider anything that was unforeseen prior to cross-examination of these individuals on their admitted reports.
Applicant’s oral request to recuse myself dismissed
28On day two of the hearing, I declined the applicant’s oral motion to recuse myself due to bias because the applicant failed to satisfy me that the test for recusal had been met.
29The applicable legal test for a reasonable apprehension of bias was set out in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at p. 394:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. [The] test is “what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly.”
30The applicant argued that I was biased during the hearing on the grounds that I issued verbal reminders for time remaining during her cross-examination of Dr. Day.
31The respondent submitted that the applicant has not established a reason for recusal. The respondent argued that if I am biased against the applicant, I am equally biased against the respondent as several procedural decisions made during the hearing were not to their liking, but this did not amount to bias and was not grounds for a recusal.
32A ruling against one party or reasonably limiting the time for chief or cross-examination, and, by extension, providing reminders of the remaining time available for examination, does not meet the test for apprehension of bias by the hearing adjudicator. Both counsel were provided with reminders about the time remaining with witnesses throughout the hearing.
33Section 23(2) of the Statutory Powers Procedure Act provides that chief/cross-examination can be reasonably limited, and, in the case of Dr. Day’s testimony, both parties were afforded approximately the same amount of time for their examination. In fact, the applicant was granted an additional 10-minute extension once the original time limit passed.
34I reviewed the circumstances giving rise to the apprehension of bias raised by the applicant, and having thought the matter over, concluded that I was not biased. A reasonable person would not conclude that as the decision maker, I would not decide fairly in these circumstances. I dismissed the applicant’s request to recuse myself because I found that the grounds for this apprehension are based on the exercise of my authority and not a sign of bias.
ANALYSIS
Background
35The applicant was involved in an automobile accident on February 23, 2018. She was driving on a country road near Bloomington, Ontario when her vehicle was struck on the driver side door by a tire from an oncoming tractor-trailer. The airbags in the applicant’s car deployed and her car left the road, landing in the ditch. The applicant did not immediately seek medical attention, and her father attended the scene to pick her up. The applicant then proceeded to drive to the airport to pick up a friend in a borrowed car.
36On March 15, 2018, the applicant consulted Dr. Vera Mahadevan, her family physician. Dr. Mahadevan diagnosed the applicant with neck pain associated with whiplash, sprain and strain of the lumbar spine, and sprain of right shoulder and elbow with an anticipated duration of 5-8 weeks. She ordered an ultrasound of the right shoulder, an x-ray of the right elbow, and a CT scan of the head.
The applicant is not entitled to a post-104 income replacement benefit
37I find that the applicant is not entitled to a post-104 income replacement benefit in the amount of $185.00 per week from May 4, 2023.
38To receive payment for a post-104 IRB under s. 6 of the Schedule, the applicant must demonstrate, on a balance of probabilities, that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
39The analysis for the post - 104 week period requires the Tribunal to first determine what employment or self-employment the insured person is “reasonably suited” to perform. This assessment involves an appraisal of one’s work history, education, and training. The applicant graduated from the University of Waterloo with dual degrees in Psychology and Fine Arts in 2018 and earned a post graduate diploma in Animation from Seneca College in 2019. She testified that she held a variety of part-time roles while completing her studies, including as a camp counsellor and child-care provider, and was employed as a contract graphic designer, commercial actor, and small business-owner post graduation. I find that the applicant’s education and work history show that she is reasonably suited to work she performed previously which is a combination of sedentary, cognitive, and physical skills that utilize artistic expression.
40The applicant argues that she developed neurological and psychological impairments after the accident which led to a complete inability to engage in any employment or self-employment and relies on the reports of Dr. William Kingston, neurologist, dated April 24, 2023 and Dr. Tatiana Melnyk, psychiatrist, dated May 4, 2023. The applicant further submits that pre- and post-104 IRBs were paid by the respondent and were suspended May 3, 2023 after receipt of s. 25 and s. 44 multi-disciplinary assessment reports.
41The respondent argues that the applicant is not entitled to post-104 IRBs and relies on the following s. 44 reports:
i. a post-104 psychological assessment by Dr. Rodney Day, psychologist, dated July 26, 2022;
ii. a musculoskeletal assessment by Dr. Pankaj Bansal, family physician, dated 12 April 2023;
iii. a FAE by Mr. Luigi Grimaldi, registered kinesiologist, dated April 12, 2023;
iv. a vocational evaluation with transferrable skills analysis by Mr. Luigi Grimaldi, registered kinesiologist, dated April 12, 2023; and
v. a labour market survey by Mr. Luigi Grimaldi, registered kinesiologist, dated April 12, 2023.
42It is important to note that neither Dr. Kingston nor Dr. Melnyk assessed the applicant’s ability to engage in employment or self-employment in relation to IRBs. Their evaluations were conducted as part of a catastrophic impairment assessment which found that the applicant does not meet the functional impairment criteria for submission of an application for determination of catastrophic impairment (“OCF-19”).
43I assign less value to the conclusion of Dr. Kingston that the applicant’s “clinical history is supportive of a diagnosis of a mild traumatic brain injury (mTBI) with associated post concussion syndrome with cognitive, emotional, sleep and vestibular symptoms”. His evidence has minimal value in establishing that the applicant’s possible mTBI renders her with a complete inability to engage in any employment because it is focused on catastrophic impairment. While I acknowledge that a catastrophic assessment may have some connection to income replacement benefits, particularly in relation to adaptation to work-like settings, Dr. Kingston’s report did not speak to the ability to carry on employment, limitations in adaptation to work-like settings, nor the post-104 IRB test I must apply. Furthermore, Dr. Kingston’s opinion regarding mTBI and post-concussion syndrome from April 2023 is not corroborated by evidence from the applicant’s treating physician, Dr. Mahadevan, recorded in the weeks after the accident in 2018. Dr. Mahadevan did not diagnose the applicant with a concussion post-accident.
44The applicant did not seek medical attention immediately after the accident and the first record of post-accident medical treatment was on March 15, 2018 (20 days later) and focused primarily on physical complaints associated with soft-tissue injuries sustained during the accident. An April 16, 2018 CAT scan of the head was ordered by Dr. Mahadevan in response to headache complaints, and revealed that brain imaging was normal and there was no acute disease. While a CAT scan may not reveal a mTBI, CNRs from the treating physician do not show a diagnosis of a concussion or post-concussion syndrome in the immediate aftermath of the accident.
45While it is possible that the applicant suffered from a mild, accident-related neurological impairment as suggested by Dr. Kingston and this impairment added to the applicant’s challenges, I find that this impact is not as significant as the existing psychiatric illness diagnosed by Dr. Tatiana Melnyk. It is important to mention that other doctors, including Dr. Rodney Day, psychologist, Dr. Llana Pelov, psychiatrist (Perinatal Mental Health Program at Mount Sinai Hospital), and Dr. Eyal Bodenstein, psychologist, all diagnosed the applicant with at least one psychiatric illness which is not related to the accident.
46Dr. Melnyk determined that as a result of the index accident, the applicant developed a somatic symptom disorder, persistent, predominant pain, mild severity, and an adjustment disorder with mixed mood and anxiety symptoms. She also determined that the applicant suffers from ADHD and two psychiatric disorders, however, her report states these are non-accident related. While I’m alive to the applicant’s recent concerning behaviour in leaving Canada with her child, the applicant has not demonstrated that this behaviour is the result of the accident.
47Dr. Melnyk opines that the applicant’s “chronic pain, lasting cognitive symptoms, in combination with her psychiatric sequelae, place her at a disadvantage to adapt to situations that would cause cognitive overload, physical stress, or that would require her sustained functional effort in cognitively complex contexts.” She did not opine on what the applicant is capable of based on her education, training, and experience nor on the post-104 IRB test I must apply.
48Dr. Melnyk further states that the “accident occurred at a time of critical vocational transition” and the applicant “has not yet been able to re-establish a sustainable vocational path and continues to experience limitations”. I agree with Dr. Melnyk that the applicant faced many challenges since the accident. She was self-employed sporadically, experienced a high-risk pregnancy, is a single parent to a toddler and had three involuntary hospitalizations. However, an inability to ‘re-establish a sustainable vocational path’ does not equate to sustaining a complete inability to engage in any employment or self-employment. I find that the accident had an impact on the applicant’s life, however, this impact was not as significant as other stressors that are not related to the accident.
49What I do find persuasive is that the applicant has had intermittent employment since the accident and gravitates to creative endeavours such as graphic design, acting in commercials, and gardening. This is consistent with her area of study, namely degrees in Psychology and Fine Arts and a post graduate diploma in Animation. The nature of her post-accident employment calls into question whether she suffers from a complete inability to engage in any employment or self-employment as a result of the accident. Rather, I find it suggests that she was occasionally employed, but her employment prospects were impacted by her continuing education at Seneca College, the COVID pandemic, her psychiatric illness, and the birth of her son in 2022.
50Mr. Luigi Grimaldi, registered kinesiologist, completed several assessments with the applicant on January 30, 2023, including a vocational assessment with transferable skills analysis (“TSA”). This assessment was based on the stated assumption that the applicant’s pre-loss occupation was as a self-employed ‘painter/artist’. The TSA included a profile which provides the main characteristics of an occupation by describing its predominant aptitudinal, interest and functional elements. It also identified occupations that the applicant may be suitable for by reason of her education and training, experience, personal aptitudes and vocational characteristics, and current labour market trends. Mr. Grimaldi concluded that the following occupations were found suitable based on the applicant’s interests: picture framer, make-up consultant, artistic floral arranger, art instructor and teacher, projectionist, proofreader, library assistant and clerk, reader and press clipper, as well as retail salesperson.
51The applicant argued that Mr. Grimaldi’s assessment should be assigned zero weight because the applicant’s pre-loss occupation was not a painter/artist. I am not persuaded by this argument. The post-104 test is not meant to identify only the occupations the applicant had previously, but those that she may be suitable for or have transferrable skills to perform. Even though painter/artist may not have been the most accurate description of the applicant’s pre-accident work experience, I find that the predominant interest and functional elements identified using this National Occupational Classification align with the applicant’s degree in Fine Arts and her preferences in pursuing artistic endeavours and decline to omit Mr. Grimaldi’s TSA while evaluating entitlement to post-104 IRBs.
52I find there are occupations that the applicant may pursue based on her education, experience, and personal aptitudes, as determined by Mr. Grimaldi. Although the applicant faces challenges as a result of her psychiatric illness, I am not persuaded that she has demonstrated that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
Causation raised as an issue in relation to post-104 IRBs by respondent
53The respondent raised the issue of causation in the opening statement and confirmed that causation is a live issue on the last day of the hearing. Both parties made submissions on causation prior to closing statements.
54The respondent argued that, regardless of the accident, the applicant would have developed her debilitating psychiatric symptoms anyway because of life altering events and repeated trauma she experienced before and after the accident. The accident caused minor injuries which were expected to last 5-6 weeks, however, the resulting injuries have nothing to do with the applicant’s current condition.
55The applicant argued that her pre-existing, undiagnosed psychiatric condition was significantly exacerbated as a result of the accident. The applicant was not diagnosed with any psychiatric conditions before the accident and these conditions were first diagnosed by Dr. Rodney Day, psychologist, during an insurer’s examination. Although it is possible that the applicant presented with these impairments pre-accident and they were simply undiagnosed, multiple assessors noted that the applicant’s pre-existing, undiagnosed psychiatric condition was significantly exacerbated as a result of the accident.
56The applicant also submitted that she was not aware that causation was being raised as an issue prior to the hearing since it is not listed in the CCRO and the respondent did not advise of their intent to raise causation in advance of the hearing. According to the applicant, the respondent should have provided notice to the applicant and to the Tribunal to permit time to prepare submissions and evidence in relation to causation.
57Due to my findings regarding post-104 income replacement benefits, it is not necessary for me to rule on whether the issue of causation is properly before me.
58The applicant is not entitled to a post-104 income replacement benefit.
The applicant is entitled to $2,646.15 for a passenger/driver assessment plan dated January 6, 2023
59The applicant demonstrated that the plan for $2,646.15 for a passenger/driver assessment is reasonable and necessary for the following reasons.
60To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. 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.
61The OCF-18 lists the following treatment goals for this assessment:
i. To determine client's ability to confidently operate a motor vehicle and to make recommendations to assist with a return to driving at pre-collision level if/when appropriate; and
ii. Return to pre-accident passenger/pedestrian status; progressive return to pre collision driver if when/appropriate status.
62The respondent argues that the assessment is not reasonable and necessary and relies on an insurer’s examination report prepared by Dr. Day, dated April 6, 2023, which stated that the applicant “does not suffer from a specific phobia related to driving or being a passenger. She feels that she is able to return to driving. What prevents her from driving currently is the suspension of her drivers license due to having a seizure, which she is applying to have returned to her”.
63I am not persuaded that a valid driver’s license is a pre-requisite for a passenger/driver assessment outlined in this treatment plan as concluded by Dr. Day. A more significant factor is the presence of specific phobias related to driving and being a passenger in a vehicle, and there are a number of instances where those phobias are communicated by the applicant to her treatment providers and insurer’s assessors, including Dr. Day. Dr. Day’s report on this topic noted that the “applicant reported experiencing occasional passenger anxiety and fear of being involved in another motor vehicle accident”. Similar reports were made to Dr. Bodenstein, Dr. Armanyous, and Dr. Melnyk.
64The applicant’s accident was caused by a large tire from a semi-trailer truck striking her car on the driver’s side, causing the air bags to deploy and resulting in the driver’s side door being inoperable as a result of the impact. Driving anxiety as a result of this event is valid and well documented in the applicant’s medical records. In fact, her driver’s licence was suspended due to a self-report of a seizure-like sensation within two months of the accident. The applicant was medically cleared to reinstate her licence by her former and current family physicians: Dr. Mahadevan on May 3, 2019 and Dr. Bourgeois on April 19, 2022. While she has not yet taken the final step of completing an administrative form from the Ministry of Transportation to become a licenced driver again, I find that this delay shows the hesitancy of the applicant to drive again and demonstrates the need for additional support to overcome this response.
65The applicant has demonstrated that this assessment is reasonable, necessary, and payable in full.
The applicant is not entitled to the unapproved portion of the plan for catastrophic assessments dated February 3, 2023
66I find that the applicant has not demonstrated, on a balance of probabilities, that the unapproved balance of the treatment plan for catastrophic assessments is reasonable and necessary.
67The applicant argues that the unapproved balance of the treatment plan is reasonable and necessary and provided reasons for each denied line item as discussed in the paragraphs that follow.
68The respondent argued that the applicant omitted to present evidence to support her position. Although the CAT assessment reports from Omega were filed, they were unsupported by testimony from Omega and the applicant herself.
69The denied components of the plan listed in the respondent’s denial letter dated February 17, 2023 are outlined in Table 1 below:
Table 1 – Denied components of plan as per respondent’s denial letter dated February 17, 2023
| Line | Service Description | Submitted | Approved | Denied |
|---|---|---|---|---|
| 1 | Intake and triage assessment | $2,000.00 | $0.00 | $2,000.00 |
| 4 | Psychiatry – Criterion 7 assessment, AMA Guides 6th Addition | $3,250.00 | $2,000.00 | $1,250.00 |
| 5 | Psychiatry – Criterion 8 assessment, AMA Guides 4th Addition | $3,250.00 | $0.00 | $3,250.00 |
| Total including tax (1.13%) on $6,500.00 | $7,345.00 |
70All other items listed on the plan were fully funded by the respondent.
71The Financial Services Commission of Ontario’s Professional Services Guideline dated September 2014 (“FSCO Guideline”) states that “as provided in subsection 25 (5) (a) of the SABS, an insurer may agree under subsection 38 (8) to pay fees of up to $2,000 for any one assessment or examination proposed in an OCF-18”.
72With respect to the denied intake and triage assessment fee, the applicant submitted that this fee covers review of the report and file review, and it is not an administrative cost as advised by the respondent in the denial letter dated February 17, 2023. The respondent counters that these fees are included in the assessment fee for the service, and the FSCO Guideline does not permit the addition of administration costs, overhead, and related costs, fees, expenses, charges and surcharges that effectively increase the hourly rates or the maximum fees payable for completing forms.
73File and report review are activities which are completed as part of every assessment and cover a component of the maximum assessment fee. I agree with the respondent that the unapproved portion of $2,000.00 in relation to this line item is not payable because this fee effectively increases the maximum payable amount for the assessments which were completed. As a result, the intake and triage assessment fees in the amount of $2,000.00 are not reasonable and necessary, nor payable.
74Since the respondent paid up to the maximum limit for the psychiatry – criterion 7 assessment, I find that the unapproved amount of $1,250.00 for this line item is not reasonable and necessary, nor payable because it exceeds the FSCO Guideline maximum for this specific assessment.
75The respondent fully denied the psychiatry – criterion 8 assessment and stated that this fee is a duplicate, and that psychometric testing can be completed as part of the partially approved psychiatry – criterion 7 assessment and not as an individual assessment cost. The applicant argues that the respondent conflates psychometric testing with the psychiatric assessment, and, since the FSCO Guideline lists psychometric testing as a separate, unregulated provider with its own fee, psychometric testing should not be considered as part of the psychiatric assessment. The applicant argues she is entitled to a separate payment for a criterion 8 psychiatric assessment as well as a criterion 7 psychiatric assessment.
76Criterion 7 refers to the combination of physical impairment ratings and mental and behavioural impairments, which, when combined, amount to 55% whole-person impairment (“WPI”) or more. Criterion 8 refers to impairments in one or more areas of function that precludes useful functioning, due to mental or behavioural disorder. The rating methodology for both criteria differ and are outlined in different editions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment.
77I find that the same licenced psychiatrist, Dr. Melnyk, completed both assessments and documented her findings for both WPI and functional impairments in one psychiatric assessment report dated May 4, 2023. Since one psychiatric assessment report was produced for both criteria, compensating the assessments separately is not reasonable and necessary.
78For the above reasons, the applicant is not entitled to the unapproved balance of $7,345.00 for the treatment plan dated February 3, 2023.
The applicant is not entitled to $1,512.36 for physiotherapy services, outlined in a plan dated February 9, 2023
79I find that the applicant has not demonstrated, on a balance of probabilities, that the plan for physiotherapy services is reasonable and necessary.
80The applicant submits this plan included massage therapy and acupuncture treatment, and the treatment goals were pain reduction, increased range of motion, and return to the activities of normal living. The applicant relies on medical records from her family physician, clinical notes and records from Livewell Active Therapy, and oral testimony as evidence to support her submissions.
81The respondent submits that the plan was denied due to a lack of compelling medical evidence that, due to the accident, the applicant requires further physical therapy and relies on a disability certificate dated March 19, 2018 which documented the following injuries: neck pain associated with whiplash, sprain/strain of lumbar spine and sprain of right shoulder and elbow which had an anticipated duration of 5-8 weeks.
82Clinical notes and records from Livewell Active Therapy from January 10, 2023 to February 16, 2023 show that the applicant received low intensity laser therapy to alleviate neck pain along the right of her spine and in the lower back/base of her shoulder, however, do not demonstrate why additional massage therapy and acupuncture treatments proposed in this plan are reasonable and necessary as a result of the accident on February 23, 2018.
83Medical records of the applicant’s family doctor, Dr. Bourgeois, from December 14, 2020 to August 15, 2023, do not include continued concerns, or diagnoses of physical complaints arising from the accident. The only physical complaints in these records were made to Dr. Bodenstein during a psychological assessment dated April 19, 2022 and consisted of pain in right side of the applicant’s neck and back between the scapula and spine. These pain complaints are not corroborated by the applicant’s treating family physician records. Moreover, the applicant did not lead evidence of continued physical treatment beyond what was received in the immediate aftermath of the accident in 2018 and Livewell Active Therapy records in early 2023, nor did she explain why physical treatment was not continued between 2019 and 2023 if it was required as a result of the accident.
84For the above reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that the plan for physiotherapy services is reasonable and necessary.
The applicant is not entitled to costs
85I find that the applicant has not met the high threshold needed to order costs.
86Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 states that the Tribunal may award costs when “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. Rule 19.5 lists factors the Tribunal shall consider when determining whether to order costs (and, if so, how much).
87The applicant emphasized that the respondent failed to comply with an order from the Tribunal, served important evidence late, and failed to adjust the applicant’s file in good faith when her condition deteriorated in 2024, despite several requests from her legal representative.
88I find the applicant has not established that the respondent’s behaviour merits costs. Though I recognize that the respondent breached the submissions deadline from the CCRO, I conclude that the breach was remedied through an approved adjournment request for the original hearing date, as well as additional time to review materials which were served and filed during the hearing itself. As such, I do not find a costs order is needed.
89The applicant’s request for costs is denied.
The applicant is not entitled to “costs” of document disbursements
90I decline to order the respondent to reimburse the applicant for document disbursements, as the Tribunal does not have statutory authority to order such payments.
91The applicant also submits that $1,135.00 was paid in disbursements to obtain medical records to comply with requests made by the respondent. She requested costs to cover these payments.
92Considering the applicant’s request for reimbursement of disbursements for medical records, the Tribunal does not have statutory authority to order these types of payments.
Award
93I find the applicant is not entitled to an award for the following reasons.
94The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
95The applicant submits that the respondent’s conduct demonstrates it unreasonably denied the benefits, assessments, and treatment plan in this appeal. The respondent counters that its actions were reasonable and within the prescribed limits of the Schedule.
96The bar for granting an award is high. The conduct of the insurer must rise above being an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”. An award should not be ordered simply because an adjudicator finds that an insurer made an incorrect decision.
97I find nothing to indicate that the respondent’s conduct demonstrates that the plans were unreasonably denied and there was a failure to continue to adjust claims in a timely manner as alleged by the applicant. Although the applicant disagreed with some of the decisions made by the respondent, a mere denial of a claim is not in itself an act that rises to the level of being “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.
98I find that the applicant is not entitled to an award in this matter because I am not persuaded that the respondent’s actions rise to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate behaviour.
99The applicant is not entitled to an award under Regulation 664.
Interest
100The applicant is entitled to interest that applies on the payment of any overdue benefits, pursuant to s. 51 of the Schedule.
ORDER
101For the above reasons, I find:
i. The applicant is not entitled to post-104 IRBs.
ii. The applicant demonstrated that the passenger/driver assessment plan, in the amount of $2,646.15 dated January 6, 2023, is reasonable and necessary.
iii. The applicant is not entitled to the unapproved portion of the plan for catastrophic assessments dated February 3, 2023.
iv. The applicant is not entitled to $1,512.36 for physiotherapy services, outlined in a plan dated February 9, 2023.
v. The applicant is not entitled to costs.
vi. The applicant is not entitled to “costs” of document disbursements.
vii. The respondent is not liable to pay an award.
viii. Interest is payable on any overdue amounts in accordance with s. 51 of the Schedule.
Released: February 13, 2025
Dagmara Szczudlo
Adjudicator