Maria Lamonaca v. TD Insurance Company, 2025 CanLII 108593

Licence Appeal Tribunal

Citation: Lamonaca v. TD Insurance Company, 2025 ONLAT 24-001714/AABS

Licence Appeal Tribunal File Number: 24-001714/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:

Maria Lamonaca

Applicant

and

TD Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Adriano Pranzitelli, Counsel

For the Respondent: Noura Bagh, Counsel

HEARD: By way of written submissions

OVERVIEW

1Maria Lamonaca, the applicant, was involved in an automobile accident on December 12, 2021, 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, TD 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 as identified in the Case Conference Report and Order (“CCRO”) are:

i. Is the applicant entitled to an attendant care benefit of $2,200.00 per month from February 7, 2022 to date and ongoing?

ii. Is the applicant entitled to $3,873.43 for assistive devices proposed by Princeton Hills in a treatment plan (“OCF-18”) submitted April 14, 2022?

iii. Is the applicant entitled to $5,237.63 for occupational therapy services proposed by Princeton Hills in an OCF-18 submitted April 14, 2022?

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

RESULT

3I find that:

i. The applicant is not entitled to attendant care benefits;

ii. The applicant is not entitled to the OCF-18 in the amount of $3,873.43 for assistive devices;

iii. The applicant is partially entitled to the OCF-18 for occupational therapy services in the amount of $948.14, plus interest, if this amount has not already been paid by the respondent. The applicant has not established entitlement to the remaining balance of the OCF-18.

PROCEDURAL ISSUES

4In its submissions for this hearing, the respondent requests that the applicant’s application be dismissed, due to the applicant’s late filing of submissions. In the alternative, the respondent requests that a negative inference be made against the applicant due to their disregard for the timelines specified in the CCRO.

5The respondent’s request is denied.

6The respondent submits that pursuant to the CCRO, the applicant’s submissions and evidence were due on February 19, 2025. However, they were not filed until February 21, 2025. The applicant submits that efforts were made to serve the submissions on February 19, 2025, but due to the large document size of the evidence, they were having difficulties with e-file. After they were informed on February 21, 2025 that service was unsuccessful, they immediately corrected the issue and the evidence and submissions were provided the same day.

7The respondent has not provided any submissions on the prejudice it has suffered as a result of the applicant’s two-day delay in filing submissions. I further note that it has provided fulsome responding submissions for this hearing. However, the applicant would be severely prejudiced and unable to bring forward her case if her initial hearing submissions and evidence were excluded or her application dismissed. When weighing procedural fairness and any potential prejudice brought, I find that the respondent has not established a basis to exclude the applicant’s submissions, dismiss her application or to draw a negative inference from the two-day delay.

ANALYSIS

Applicant’s submissions on Minor Injury Guideline (“MIG”)

8In her written hearing submissions, the applicant provided submissions on why she should be removed from the funding limits of the MIG. However, I note that MIG determination was not an issue in dispute in this written hearing. The CCRO specified that at the time of the case conference, a number of issues that had been listed in the application, including MIG determination, had been resolved by the parties. The respondent has further submitted a letter dated September 20, 2022 which indicated that the applicant had been removed from the MIG on the grounds of psychological impairment. Given that MIG determination was not listed as an issue in dispute for this hearing, and that the applicant appears to have been taken out of the MIG, I will not be addressing MIG determination in this hearing.

The applicant has not established entitlement to attendant care benefits

9Section 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 ACB services provided by an aide or attendant.

10The applicant submits that as a result of the accident, she sustained serious impairments including: chronic chest, neck, back and shoulder pain, anxiety, depression, insomnia, headaches, dizziness and vehicular fear. She relies on a Form 1 and attendant care assessment report dated April 4, 2022 from her occupational therapist Amaresh Parikshya. Mr. Parikshya found that the applicant required $10,322.09 in monthly attendant care services, including assistance with dressing/undressing, grooming, serving meals, assistance with internal mobility and transfers and supervision during stair climbing, hygiene, basic supervisory care, bathing and medication management.

11The applicant argues that the medical evidence establishes that the proposed attendant care is reasonable and necessary as a result of her accident-related impairments. She submits that pre-accident she was independent with certain household and self-care tasks, but that post-accident she cannot fulfill any self-care activities. The applicant relies on her attendant care assessment report, an occupational therapy (“OT”) assessment report dated March 10, 2022 and hospital clinical notes and records to establish her claim.

12The respondent disputes that the applicant is entitled to ACBs as a result of impairments she sustained from the accident. While it does not deny that the applicant requires attendant care services, it argues that this need does not arise from accident-related impairments. The respondent submits that the applicant is an 89 year old woman with a significant pre-accident history including congestive heart failure, high blood pressure, chronic atrial fibrillation, a right wrist fracture from a previous fall, and pre-existing lower back pain. Prior to the accident, the applicant had undergone an occupational therapy assessment on November 9, 2020 and it was determined that the applicant required assistance from a personal support worker (“PSW”).

13The respondent relies on the s. 44 physiatry assessment of Dr. Alborz Oshidari, who diagnosed the applicant with sprains and strains of the spine, contusion of the extremities and tension headaches. Dr. Oshidari found that these physical impairments fell within the MIG. It further relies on the s. 44 in-home occupational therapy assessment of Rebecca Oatman. While Ms. Oatman noted the applicant’s functional restrictions, she found that attendant care was not required for the applicant’s accident-related impairments, since this need was pre-existent.

14I find that the applicant has not met her evidentiary burden to prove, on a balance of probabilities, that ACBs are reasonable and necessary for her accident-related impairments.

15The applicant argues that the medical record establishes her serious injuries as a result of the accident and that her pre-existing impairments had been aggravated. She submits that as a result of the accident, her complications from musculoskeletal pain and cardiac issues have significantly intensified, resulting in persistent mobility challenges. However, the applicant does not direct me to specific medical evidence in support of this claim.

16Rather, the applicant refers me to hospital records in support of her submissions, but does not direct me to a page number or date of the hospital record entry. Instead, the applicant refers to the entire tab of hospital records from December 12, 2018 to January 28, 2022, totalling approximately 2000 pages.

17The CCRO expressly specified that the parties’ submissions must make “specific reference to the evidence by tab and page number.” The Tribunal cannot presume to know which evidence or portion thereof, if any, that a party intends to rely on in advancing her case. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the records provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at para. 50. It is the applicant’s onus to prove entitlement, and this would include a specific reference to which portion of the 2000 page hospital record supports her claim for ACBs.

18The applicant further has not provided additional medical evidence to establish her accident-related impairments. The applicant reported that since her family physician was on leave after the accident, she attended walk-in clinics for her accident-related impairments. However, the medical records of these walk-in clinics have not been provided as evidence in this hearing.

19The applicant further argues that her attendant care assessment and Form 1 support her position that she is in need of attendant care. However, in my view, the assessment and Form 1 alone, without corroborating medical evidence, do not establish that the need for attendant care services arise as a result of the accident. I note that in coming to his conclusions in his attendant care assessment report, Mr. Parikshya did not review the applicant’s hospital records, noting that no documentation was available for review. Moreover, from my review of the hospital records, they do not appear to support the position that the applicant’s need for attendant care arose as a result of the accident.

20The applicant does not dispute that she had a complex medical history and that she had been receiving support services from a PSW pre-accident. There appears to be a hospital record entry on December 12, 2021 where the applicant reported chest pain after the accident, no head, neck, lower extremity or back pain. The applicant was given over the counter pain medication and was advised to follow-up with her family doctor. The applicant does not direct me to any other entry in the hospital records where she sought treatment for accident-related injuries.

21Rather, approximately a month after the accident on January 16, 2022, the applicant was admitted for surgery with cholecystitis, and “shock liver”. She had been previously diagnosed with a cluster of gallstones, but given her extensive medical comorbidities, conservative management had been maintained. The applicant was diagnosed with cholecystitis and sepsis and surgery was performed. The applicant does not direct me to any record where these diagnoses were found to be accident-related. Post-surgery, on January 24, 2022 the applicant was reassessed at the hospital for occupational therapy services. The hospital assessor noted that the applicant would be discharged with increased community PSW support “as she is still feeling weak”. However, there is no indication that the increased support was due to the motor vehicle accident, rather than her post-surgical recovery or pre-accident impairments.

22Accordingly, I find that the applicant has not proven on a balance of probabilities that ACBs are reasonable and necessary as a result of her accident-related impairments.

$3,873.43 for assistive devices

23I find that the applicant has not established that the proposed assistive devices are reasonable and necessary.

24The applicant submitted an OCF-18 in the amount of $3,873.43 for devices including: a recliner lift chair, long handled reachers and bath sponges, grab bars, safety rails, an anti-fatigue mat, heating wraps and pads and gel wraps. Her OT, Mr. Parikshya’s report details that the devices are needed to aid the applicant in reaching, cleaning her lower limbs, to support her lower back when sitting and to relieve her pain.

25The respondent denied the devices relying on its s. 44 OT assessment report. Ms. Oatman found that the heating and cooling devices were not reasonable and necessary as the applicant already had a hot water bottle that she used for pain relief; that an anti-fatigue mat would be a mobility risk for the applicant as she uses a cane or walker, that the grab bars were not needed as the applicant’s shower stall was small and she had a chair to use for safety, that the recliner chair was not needed as she was able to be supported on her couch with pillows.

26The applicant did not provide submissions on the respondent’s arguments as to why the assistive devices are not reasonable and necessary. Ms. Oatman provided detailed reasons as to why the proposed devices were not required for the applicant’s accident-related injuries, which I find to be persuasive. The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. Without specific submissions from the applicant on the proposed assistive devices, I find that the applicant has not established entitlement to the items proposed in the OCF-18.

$5,237.63 for occupational therapy services

27I find that the applicant is entitled to partial payment of the OCF-18 for occupational therapy services in the amount of $948.14, if this amount has not already been paid by the respondent. The applicant has not established entitlement to the remaining balance of the OCF-18.

28The applicant submitted an OCF-18 in the amount of $5,237.63 for 10 sessions of occupational therapy. Mr. Parikshya recommended these sessions to provide education on the recommended equipment, on safe transfers and energy conservation techniques, to monitor cognitive functioning, to consult with the applicant’s family physician and specialists and to facilitate the set up of attendant care services.

29The respondent’s OT assessor Ms. Oatman found that the OCF-18 was partially reasonable and necessary in the amount of $948.14. She found that the applicant had some restricted range of motion in her left shoulder and demonstrated pain avoidant behaviour and low activity tolerance.

30I find that the applicant has established that the partial amount of $948.14 of OT services is reasonable and necessary. Part of the reason Mr. Parikshya recommended OT services was to educate the applicant on the assistive devices, set up and coordinate attendant care services. However, I have found that the applicant has not established entitlement to these benefits or devices. However, I agree with the respondent’s assessor that two OT sessions would be reasonable to assist the applicant in re-engaging with her daily tasks.

31From the parties’ submissions, it is unclear whether the partial amount of $948.14 has been paid by the respondent. The only denial letter provided with respect to this plan was dated April 28, 2022 and the full amount of $3,873.43 was denied on the basis that the applicant was still within the MIG at that time. No additional information has been provided by the parties as to whether any partial payment was subsequently made.

32Accordingly, I find that the applicant is entitled to partial payment of the OCF-18 for occupational therapy services in the amount of $948.14, if this amount has not already been paid by the respondent. The applicant has not established entitlement to the remaining balance of the OCF-18.

Interest

33Interest is payable on any overdue benefits in accordance with s. 51 of the Schedule.

ORDER

34For the reasons noted above I find that:

i. The applicant is not entitled to attendant care benefits;

ii. The applicant is not entitled to the OCF-18 in the amount of $3,873.43 for assistive devices;

iii. The applicant is partially entitled to the OCF-18 for occupational therapy services in the amount of $948.14, plus interest, if this amount has not already been paid by the respondent. The applicant has not established entitlement to the remaining balance of the OCF-18.