Licence Appeal Tribunal File Number: 23-008872/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:
Kimberley Haggarty
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Lisa Bishop, Counsel
For the Respondent:
Daniel M Himelfarb, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Kimberley Haggarty, the applicant, was involved in an automobile accident on January 7, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing for a non-earner benefit (“NEB”) in the amount of $185.00 per week from July 19, 2022 to January 7, 2023, because the applicant failed to dispute their denial within the 2- year limitation period?
SUBSTANTIVE ISSUES
3The substantive issues in dispute are:
i. Is the applicant entitled to a NEB in the amount of $185.00 per week from July 19, 2022 to January 7, 2023?
ii. Is the applicant entitled to $2,205.00 for an in-home assessment, proposed by Innovative Occupational Therapy Services in a treatment plan/OCF-18 (“plan”) submitted September 22, 2021?
iii. Is the applicant entitled to $3,402.08 for occupational therapy services, proposed by Innovative Occupational Therapy Services in a plan submitted September 22, 2021?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Critical Trauma Therapy, in a plan submitted January 10, 2022?
v. Is the applicant entitled to $2,200.00 for a social work assessment, proposed by Critical Trauma Therapy in a plan submitted January 10, 2022?
vi. Is the applicant entitled to $2,200.00 for occupational therapy assessment, proposed by Innovative Occupational Therapy Services in a plan submitted December 22, 2021?
vii. Is the applicant entitled to $4,588.96 for occupational therapy services, proposed by Innovative Occupational Therapy Services in a plan submitted January 4, 2022?
viii. Is the applicant entitled to $2,200.00 for a cognitive assessment, proposed by Innovative Occupational Therapy Services in a plan submitted August 9, 2022?
ix. Is the applicant entitled to $4,948.16 for occupational therapy services, proposed by Innovative Occupational Therapy Services in a plan submitted August 9, 2022?
x. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. Neeru Sharma in a plan submitted January 13, 2023?
xi. Is the applicant entitled to $2,070.00 for a psychological assessment, proposed by LAD and Associates in a plan submitted January 31, 2022?
xii. Is the applicant entitled to $2,200.00 for a cognitive assessment, proposed by LAD and Associates in a plan submitted January 31, 2022?
xiii. Is the applicant entitled to attendant care benefits in the amount of $3,000.00 per month from December 24, 2021 to date and ongoing?
xiv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xv. Is the applicant entitled to interest on any overdue payment of benefits?
4The Case Conference Report and Order (“CCRO”) dated April 5, 2024, indicates in the preliminary issue and in paragraph 3(i) that the period in dispute for an NEB is from July 19, 2021 to February 7, 2023. In the applicant’s submissions, she changed her claim for an NEB to the period from July 19, 2022 to January 7, 2023. Therefore, I have changed these dates in the issues in dispute set out above.
5The CCRO lists attendant care benefits (“ACB”) in the amount of $10,242.11 per month from December 24, 2021 to date and ongoing, in paragraph 3(xiii), however, in the applicant’s submissions, she has reduced the amount of her claim for an ACB to $3,000.00 per month from December 24, 2021 to date and ongoing. Therefore, I have reflected this in the issues in dispute set out above.
RESULT
6For the preliminary issue, I find that the applicant is statute-barred from proceeding with her claim for an NEB;
7The applicant is not entitled to the disputed treatment plans for assessments and occupational therapy services;
8The respondent’s denial of treatment plan dated January 12, 2023 was proper notice in accordance with s. 38(8) of the Schedule;
9The applicant is not entitled to attendant care benefits in the amount of $3,000.00 per month from December 24, 2021 to date, and ongoing;
10No interest is payable, and;
11The respondent is not liable to pay an award to the applicant.
ANALYSIS
Preliminary Issue
12I find that the applicant may not proceed with her claim for an NEB.
13Under s. 56 of the Schedule, an applicant has two years after the insurer’s refusal to pay the amount claimed to dispute the denial. The limitation period is triggered by a clear, unequivocal denial in straightforward and clear language directed towards an unsophisticated person, as established in Smith v. Co-Operators General Insurance Company, 2002 SCC 30.
14The applicant filed her application to the Tribunal on July 27, 2023, which is beyond the two-year limitation period from the date when the respondent denied her application for an NEB on June 25, 2021.
15Section 7 of the Licence Appeal Tribunal Act, 1999, c. 12, Sched. G (LAT Act), however, affords the Tribunal statutory discretion to extend the limitation period prescribed by the Schedule if it is satisfied that there are reasonable grounds for granting such relief. In determining whether to grant an extension, the Tribunal examines four factors: i) the existence of a bona fide intention to appeal within the appeal period; ii) the length of the delay; iii) prejudice to the other party; and iv) the merits of the appeal. See Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act), 2012 ONSC 1492.
16The respondent argues that the applicant submitted a Disability Certificate (“OCF-3”) on June 3, 2021, which triggered the applicant’s application for the NEB issue. The OCF-3 dated June 2, 2021, indicated that the applicant did not sustain a complete inability to carry on a normal life. The respondent provided an Explanation of Benefits (“EOB”) dated June 15, 2021, to the applicant which stated that based on her application and OCF-3 dated June 2, 2021, which indicates that she does not suffer a complete inability to carry on a normal life, the applicant is not entitled to NEBs.
17The respondent submits that the limitation period was triggered by its initial denial dated June 15, 2021, which was a clear and unequivocal denial of the applicant’s NEB claim, and therefore, the limitation period ended on June 15, 2023. The respondent submits that since the applicant did not file an application to dispute the denial of her entitlement to an NEB until July 27, 2023, she is statute-barred from disputing her entitlement to an NEB.
18The respondent further submits that on July 19, 2022, the applicant submitted another OCF-3 dated July 14, 2022. This OCF-3 indicated that she did sustain a complete inability to carry on a normal life. The respondent again provided an EOB dated July 28, 2022, which indicates the applicant is not entitled to an NEB.
19The applicant submits that she did submit an earlier OCF-3 which did not support her entitlement to an NEB, therefore, it was not an application for a specified benefit. She argues that she did not submit an OCF-3 dated July 14, 2022, until July 19, 2022, which did support her entitlement to an NEB. The applicant further argues that since the benefit was subsequently denied July 28, 2022, the limitation period should be extended to July 28, 2024.
20I find that the applicant acknowledges the June 15, 2021 denial of the OCF-3 dated June 2, 2021, and the submission of a later OCF-3 dated July 14, 2022. Although, the applicant argues that since the earlier OCF-3 dated June 2, 2021 did not support her entitlement to an NEB, she did not apply for the benefit. However, the denial letter dated June 15, 2021 clearly states that the applicant indicated in her Application for Accident Benefits (“OCF-1”) dated January 27, 2021, that her injuries do not prevent her from completing her activities of normal life. The respondent further stated that the OCF-3 dated June 2, 2021 indicates that the applicant has not suffered a complete inability to carry on a normal life. I find that the respondent’s June 15, 2021 denial was clear and unequivocal, and the later denial on July 28, 2022 does not extend the limitation period with respect to the earlier denial.
21I disagree that the respondent is precluded from denying a specified benefit prior to the receipt of an OCF-3 which supports the applicant’s entitlement to an NEB. Section 36(3) of the Schedule provides that an applicant who fails to submit a completed OCF-3 is not entitled to a specified benefit (such as an NEB) for any period before the OCF-3 is submitted. Section 36 does not state that the respondent is precluded from denying a specified benefit where the applicant indicated on both the OCF-1 and the initial OCF-3 that she did not meet the test for entitlement to an NEB. I find that the respondent’s second denial of July 28, 2022 clearly referenced the June 15, 2021 denial and right to dispute forms that were provided. In addition, I find this is not a situation where the respondent pre-emptively denied a benefit that the applicant only became eligible for or “discovered” later on as in Tomec v. Economical, 2019 ONCA 882.
22The parties make no submissions regarding the delay or whether the Tribunal should exercise its jurisdiction to extend the limitation period under s.7 of the LAT Act.
23I find that the applicant is statute-barred from proceeding with her claim for an NEB.
24To receive payment for a treatment plan (OCF-18) 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. 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 same are reasonable.
25Section 16(1) of the Schedule states that rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person that are reasonable and necessary to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into their family, society and the labour market. Section 16(3)(i) of the Schedule states that these activities include home modifications and home devices that accommodate the needs of the insured person.
26Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all of the other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
Issue #1 – The applicant is not entitled to $2,205.00 for an in-home assessment
27I find that the applicant has not demonstrated that the plan in dispute for an in-home assessment is reasonable and necessary.
28The applicant makes no submissions regarding whether the plan dated September 13, 2021, completed by Sheila Don, occupational therapist, of Innovative Occupational Therapy Services, in the amount of $2,205.00 for an in-home assessment is reasonable and necessary. The goals of the plan are to complete an occupational therapy functional assessment and return the applicant to her activities of daily living. The plan lists the applicant’s accident-related injuries as mild cognitive disorders, depressive episode, post-traumatic stress disorder, generalized anxiety disorder, insomnia, low back pain, wrist/hand fracture and superficial neck injury. In addition, the plan indicates that the applicant had no pre-existing conditions.
29Since the applicant has made no submissions and has not pointed or directed me to any evidence in support of this plan, I find that she has not demonstrated that the plan dated September 13, 2021, for an in-home assessment is reasonable and necessary.
30Therefore, I find on a balance of probabilities that the applicant is not entitled to the amount of $2,205.00 for an in-home assessment.
Issue #2 – The applicant is not entitled to $3,402.08 for occupational therapy services
31I find that the applicant is not entitled to occupational therapy services because the medical evidence does not support that further therapy is reasonable and necessary for the applicant’s accident-related injuries.
32The applicant seeks payment for a plan dated September 13, 2021, in the amount of $3,402.08 for occupational therapy services, submitted by Sheila Don, occupational therapist of Innovative Occupational Therapy Services. The goals of the plan are to maximize functional restoration and address barriers to normal daily function. The plan describes the applicant’s accident-related injuries as mild cognitive disorders, depressive episode, post-traumatic stress disorder, generalized anxiety disorder, insomnia, low back pain, wrist/hand fracture and superficial neck injury.
33The applicant refers to the plan itself, and a letter dated December 15, 2021, from Nikolas Dampier, occupational therapist to the respondent, which states that the applicant’s high level of anxiety affects her functional abilities. The applicant submits that the goals of the plan were to maximize functional restoration and address barriers to normal daily function. However, the applicant offered no explanation why the goals are necessary as a result of the accident and/or whether the costs are reasonable, nor did she direct me to any medical evidence in support of the plan.
34The respondent submits that the applicant has not provided medical evidence in support of the disputed plan. The respondent relies on the clinical notes and records (“CNRs”) of Four Seasons Physiotherapy; and the Insurer’s Examination (“IE”) report dated March 27, 2023, by Susan Szainwald, in which the assessor notes that the applicant reported that she returned to all her pre-accident activities of daily living, including personal care, housekeeping, and shopping. The respondent submits that in progress report dated April 22, 2021, Zabirhussain Ghair, physiotherapist, at Four Seasons Physiotherapy notes significant improvement is the applicant’s symptoms.
35I find that the applicant did not attend a hospital, nor was she referred to an orthopaedic specialist for a left wrist/hand fracture after the accident. I find that the progress report dated April 22, 2021, by Zabirhussain Ghair, indicates the applicant’s left wrist sprain is 80% improved, her neck pain has resolved, and she has right knee swelling. In the CNRs of Four Seasons Physiotherapy, on January 26, 2022, Zabirhussain Ghair notes that the applicant is pain free. I find that the applicant reported to IE assessor, Susan Szainwald that she was able to return to all her personal care and housekeeping tasks after the accident.
36I find that the applicant has not met her onus to establish how the proposed plan for occupational therapy services is reasonable and necessary. The applicant only relies on the disputed plan from the treatment provider which indicates that all the applicant’s symptoms are accident related. I find that the applicant did not make submissions to explain how occupational therapy is reasonable and necessary or provide corroborating evidence of the need for occupational therapy.
37I find on a balance of probabilities that the applicant is not entitled to the proposed treatment plan for occupational therapy services.
Issue #3 – The applicant is not entitled to $2,200.00 for a psychological assessment
38I find that the applicant has not established, on a balance of probabilities, that a psychological assessment is reasonable and necessary for her accident-related injuries.
39The applicant seeks payment for a plan dated January 5, 2022, for a psychological assessment with Dr. Jacqueline Brunshaw, psychologist, submitted by Helen Leimonis, occupational therapist, of Critical Trauma Therapy, in the amount of $2,200.00 to address the applicant’s psychological condition. In the plan, Helen Leimonis indicates that the applicant had no pre-existing conditions, and her accident-related symptoms are identified as mild cognitive disorder, depressive episode, post-traumatic stress disorder, generalized anxiety disorder, insomnia, low back pain, wrist fracture and superficial neck injury. The goals of the plan are for evaluation of psycho-emotional and psycho-social strengths and weaknesses, for treatment and rehabilitation planning and return to activities of daily living.
40However, it is unclear whether the applicant’s symptoms are related to her pre-existing psychological condition or the accident. Helen Leimonis does not mention the applicant’s pre-existing psychological condition or differentiate between her pre- and post-accident psychological symptoms which would require a psychological assessment. The plan refers to an occupational functional assessment report dated November 30, 2021, by Nikolas Dampier, which was conducted virtually, in which the assessor mentions the applicant’s anxiety symptoms as a basis for the proposed psychological assessment.
41The applicant makes no specific submissions regarding this particular plan for a psychological assessment or whether it is reasonable and necessary for her accident-related injuries.
42The applicant relies on a clinical note dated April 12, 2022, by Dr. Elena Miula, the applicant’s treating psychiatrist, which indicates that the applicant prefers individual therapy to group therapy, and she has a stressful home situation because she’s being evicted. Dr. Miula does not mention any affect of the accident on the applicant’s current psychological condition.
43The applicant also relies on an occupational therapy report dated August 8, 2022, by Nikolas Dampier. The applicant submits that Nikolas Dampier indicates that her depression has been exacerbated but she does not provide an explanation for this deterioration. In his report. Nikolas Dampier mentions the applicant’s poor sleep, reduced appetite, attention and memory, and stressful relationships with family and neighbours.
44The respondent submits that the applicant’s psychological symptoms were pre-existing, and a psychological assessment is not reasonable and necessary. The respondent further submits there is no medical evidence of an accident-related psychological impairment.
45I find that the applicant makes no substantive submissions to explain why the goals are necessary as a result of the accident, or how her symptoms are related to her pre-existing psychological condition. I am not persuaded by the report of Nikolas Dampier because his recommendations are based on what appears to be long-standing psychological symptoms. For example, Nikolas Dampier refers to therapy that he provides to the applicant for book reading due to her attention and memory difficulties, an activity she has not attempted in seven years, which is long before the accident.
46I find that the applicant has not demonstrated that a psychological assessment is reasonable and necessary because the CNRs of Dr. Miula mention the applicant’s poor appetite, concentration and attention; reduced sleep; susceptibility to psychosocial stressors; and need for long-term therapy before the accident. I find that the CNR’s of Dr. Tse mention the applicant’s severe depression, frequent crying and inability to sleep in the month before the accident. Therefore, the applicant has not demonstrated that the plan for a psychological assessment is reasonable and necessary as a result of the accident.
Issue #4 – The applicant is not entitled to $2,200.00 for a social work assessment
47I find that the applicant has not established, on a balance of probabilities, that a social work assessment is reasonable and necessary for the following reasons.
48The applicant seeks payment for a plan dated January 5, 2022, completed by Helen Leimonis, occupational therapist, of Critical Trauma Therapy in the amount of $2,200.00 for a social work assessment with Tracy Lynn Gostlaw, social worker. Helen Leimonis indicates that the applicant had no pre-existing conditions, and her accident-related symptoms are identified as mild cognitive disorder, depressive episode, post-traumatic stress disorder, generalized anxiety disorder, insomnia, low back pain, wrist fracture and superficial neck injury. The goals of the plan are for management and treatment of psycho-emotional and psycho-social impairments, establishment of coping strategies and return o activities of daily living. However, it is unclear whether the applicant’s symptoms are related to her pre-existing condition or the accident. Helen Leimonis does not mention the applicant’s pre-existing psychological condition or differentiate between her pre- and post-accident psychological symptoms which would require a social work assessment.
49Again, the applicant makes no submissions regarding whether this plan for a social work assessment is reasonable and necessary for her accident-related injuries.
50The respondent submits that this plan was not submitted, and it is not in evidence. I find that the disputed plan was submitted on January 10, 2022, and the respondent denied two plans from Critical Trauma Therapy by letter dated January 21, 2022.
51I find that the applicant has not demonstrated that a social work assessment is reasonable and necessary because the applicant does not explain how the plan for a social work assessment is supported by the evidence. Therefore, the applicant has not demonstrated that the plan for a social work assessment is reasonable and necessary.
Issue #5 – The applicant is not entitled to $2,200.00 for an occupational therapy assessment
52I find that the applicant has not demonstrated that the plan in dispute for an occupational therapy assessment is reasonable and necessary.
53The applicant makes no submissions regarding whether the plan dated December 22, 2021, from Innovative Occupational Therapy Services, in the amount of $2,200.00 for an occupational therapy assessment is reasonable and necessary, and the plan is not in evidence.
54Since the applicant makes no submissions in support of the disputed plan dated September 13, 2021, for an occupational therapy assessment, I find that she has not established that the assessment is reasonable and necessary. Therefore, I find on a balance of probabilities that the applicant is not entitled to the amount of $2,200.00 for an occupational therapy assessment.
Issue #6– The applicant is not entitled to $4,588.96 for occupational therapy services
55I find that the applicant has not demonstrated that the plan for occupational therapy services is reasonable and necessary for the following reasons.
56The applicant submits that the plan dated December 29, 2021, completed by Nikolas Dampier, in the amount of $4,588,96 for occupational therapy services is reasonable and necessary. However, the applicant did not point or direct me to the treatment plan.
57The applicant relies on a progress report dated August 8, 2022, by Nikolas Dampier which provides the goals of treatment is for sleep hygiene, to promote attention and memory and relaxation to manage psycho-emotional deficits. In addition, Nikolas Dampier indicates in his report that he is assisting the applicant in book reading, an activity she has been unable to initiate in seven years, which is a problem that predates the accident by several years.
58The respondent submits that the applicant has not provided medical evidence in support of the disputed plan. The respondent relies on the IE report dated March 27, 2023, by Susan Szainwald, occupational therapist, in which the assessor notes that the applicant reported that she returned to all her pre-accident activities of daily living, including personal care, housekeeping, and shopping.
59I find that the clinical notes and records of Innovative Occupational Therapy Services indicate on April 8, 2022, that the applicant is not concerned about housekeeping tasks and on June 6, 2022, the applicant told the therapist she is able to dance without pain. I place less weight on the report of Nikolas Dampier because he refers to treatment for the applicant’s pre-existing psychological issues. Since the plan is not in evidence, I am unable to determine whether the goals are necessary as a result of the accident and/or whether the costs are reasonable.
60I find on a balance of probabilities that the applicant has not met the burden of proof that the plan dated December 29, 2021, for occupational therapy services is reasonable and necessary for her accident-related injuries.
Issue #7 – The applicant is not entitled to $2,200.00 for a cognitive assessment
61I find that the applicant has not demonstrated that the plan in dispute for a cognitive assessment is reasonable and necessary.
62The applicant submits that the plan submitted August 9, 2022, from Innovative Occupational Therapy Services, in the amount of $2,200.00 for a cognitive assessment is reasonable and necessary. The applicant has not pointed or directed me to the treatment plan.
63The applicant relies on the progress report dated August 8, 2022, by Nikolas Damper regarding his opinion that the applicant requires a functional cognitive assessment.
64The respondent relies on the IE report dated April 10, 2023, by Dr. Robert Brian Hines, psychiatrist, in which Dr. Hines indicates that the applicant reported no change in her appetite, concentration, memory or psychiatric medication after the accident. The respondent submits that Nikolas Dampier is not qualified to assess cognition.
65I find that other than the recommendation of Nikolas Dampier, the applicant has not directed me to evidence in support of the need for a cognitive assessment. I find that Nikolas Dampier, as a physiotherapist is not qualified to render an opinion of a possible cognitive impairment. In addition, since the plan is not in evidence, I am unable to determine whether to goals are necessary as a result of the accident and/or whether the costs are reasonable.
66I find that the evidence does not support the need for the assessment regarding the applicant’s accident-related injuries. Therefore, I find on a balance of probabilities that the applicant is not entitled to the amount of $2,200.00 for a cognitive assessment.
Issue #8 – The applicant is not entitled to $4,948.16 for occupational therapy services
67I find that the applicant has not demonstrated that the plan for occupational therapy services is reasonable and necessary as a result of her accident-related impairments.
68The applicant submits that the plan submitted August 9, 2022, from Innovative Occupational Therapy Services, in the amount of $4,948.16 for occupational therapy services is reasonable and necessary. The plan is not in evidence.
69The applicant makes no submissions regarding this plan, and instead refers to another plan for occupational therapy services dated June 5, 2024, by Innovative Occupational Therapy Services, in the amount of $4,948.16, which is not an issue in dispute.
70Since the plan is not in evidence, I am unable to determine whether the goals are necessary as a result of the accident and/or whether the costs are reasonable. I find on a balance of probabilities that the applicant has not met the burden of proof that the plan submitted August 9, 2022, for occupational therapy services is reasonable and necessary.
Issue #9 – The applicant is not entitled to $2,200.00 for a psychological assessment
71I find that the applicant has not demonstrated that the plan in dispute for a psychological assessment is reasonable and necessary.
72The applicant submits that the plan dated January 12, 2023, completed by Dr. Neeru Sharma, psychologist, of Dr. Sharma Psychological Services, in the amount of $2,200.00 for a psychological assessment is reasonable and necessary. The goals of the plan are to determine whether the applicant has any psychological impairments as a result of the accident. The pre-screen report dated November 23, 2022 by Dr. Sharma indicates that the applicant has significant emotional distress, mood changes, post-traumatic stress symptoms and anxiety in automobile travel. In addition, the plan indicates that the applicant had pre-existing depression and anxiety, for which she receives medical attention.
73The applicant relies on the plan in dispute dated January 12, 2023; the pre-screen report dated November 23, 2022 by Dr. Sharma; and the psychological report dated May 12, 2023 by Dr. Sharma. The applicant reported to Dr. Sharma that she did not have difficulty sleeping before the accident, and since the accident, she has had poor sleep, appetite, concentration and focus.
74The respondent submits that the applicant’s symptoms of low mood, anxiety, poor sleep and irritability are the same symptoms mentioned by Dr. Tse in her diagnosis of the applicant’s major depressive disorder and borderline personality traits and anxiety for the past twelve years. The respondent relies on an IE report dated April 10, 2023, by Dr. Robert Brian Hines, psychiatrist. In his report, Dr. Hines concluded that the applicant’s psychological symptoms are unrelated to the accident. Dr. Hines opines the applicant’s psychological condition is due to pre-existing conditions and the subsequent events of the loss of her brother in October 2022, and then the loss of her cat in May 2023.
75I find that during the assessment with Dr. Sharma on November 23, 2022, the applicant provided conflicting evidence regarding her pain level, and changes in appetite, sleep, concentration and focus from other evidence provided by treatment providers. For example, the applicant reported constant pain in her wrist and knee to Dr. Sharma, however, she reported to Zabirhussain Ghair in February 2022 that her pain had resolved. In addition, the applicant reported to Dr. Sharma that her difficulties with sleep, appetite, concentration and focus only began after the accident. As discussed previously, the CNRs of both Dr. Miula and Dr. Tse mention the applicant’s long-standing difficulties with sleep, appetite, and concentration. I give less weight to the report of Dr. Sharma because she relied exclusively on the self-reports of the applicant, and she did not review the records of Dr. Tse or Dr. Miula. I find that the evidence does not support the need for the assessment regarding the applicant’s accident-related injuries.
76Therefore, I find on a balance of probabilities that the applicant is not entitled to the amount of $2,200.00 for a psychological assessment.
The respondent provided a compliant denial letter
77As an alternative argument, the applicant submits that the respondent did not provide a compliant denial of the plan for a psychological assessment.
78I find that the applicant has not established that the plan dated January 12, 2023 is payable due to a non-compliant denial.
79If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8).
80Section 44(5) of the Schedule provides that an insurer shall give notice of an examination with the medical and other reasons for the examination.
81The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.
82The applicant submits that the February 3, 2023 letter was an improper denial because it only provides reasons regarding her physical recovery, and does not provide any references to her psychological symptoms. The applicant makes no submissions why the notice of examination (“NOE”) dated April 3, 2023 is non-compliant with s.44(5) of the Schedule.
83The respondent wrote to the applicant on February 3, 2023 denying the benefits, 15 business days after receiving the plan on January 13, 2023. I find that the respondent, therefore breached the 10 business day timeline in s. 38(8) of the Schedule. Pursuant to s.38(11), the insurer shall pay for all goods and services described in the plan starting on the 11th business day until the 15th business day when the respondent sent the notice.
84The February 3, 2023 letter states that the symptoms of low mood, anxiety, poor sleep and irritability referred to in the plan proposed by Dr. Sharma are the same symptoms referred to by Dr. Tse as pre-existing condition for the past twelve years. The respondent also specifically requested the CNRs of Dr. Tse from three years before the accident, Mississauga Hospital records from January 2022and the complete ODSP file, under s. 33. In addition, the respondent stated that it required an IE to determine whether the recommended treatment is reasonable and necessary for the injuries the applicant sustained as a result of the accident.
85I find that the February 3, 2023 letter was a valid denial letter albeit five days late because it provided medical and other reasons for the denial and requested information about the insured’s medical condition that the insurer does not have but requires to determine whether the treatment plan is reasonable and necessary.
86I find that the respondent provided clear medical and all other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the denial. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.
87I find that the applicant is entitled to any incurred portions of the plan for the 5 business days from the 11th business day after receiving the plan (January 30, 2023) until the date notice was provided on February 3, 2023.
Issue #10 – The applicant is not entitled to $2,070.00 for a psychological assessment
88I find that the applicant has not established, on a balance of probabilities, that a psychological assessment is reasonable and necessary for her accident-related injuries.
89The applicant seeks payment for a plan dated January 24, 2022, for a psychological assessment, submitted by Dr. Hiten Lad, psychologist of Lad and Associates, in the amount of $2,070.00 to address the applicant’s pattern of emotional and behavioural symptoms. In the plan, Dr. Lad indicates that the applicant had no pre-existing conditions. Dr. Lad indicates that the applicant’s injuries are identified as concussion, mild cognitive disorder, post concussion syndrome, pain, malaise and fatigue, depressive episode, anxiety disorder, irritability and anger, limitation of activities due to disability, and problem related to life management difficulties. The goals of the plan are to understand the applicant’s psychological functioning. I find that Dr. Lad, as a psychologist is not qualified to characterize the applicant’s neurological symptoms as concussion or post concussion syndrome.
90Again, the applicant makes no submissions regarding whether this plan for a psychological assessment is reasonable and necessary for her accident-related injuries.
91The respondent submits that the applicant’s psychological symptoms were pre-existing, and a psychological assessment is not reasonable and necessary. The respondent further submits there is no medical evidence of an accident-related psychological impairment.
92I find that the applicant has not demonstrated that a psychological assessment is reasonable and necessary because the plan does not refer to the applicant’s pre-existing psychological condition, and the evidence does not support the need for the assessment for her accident-related symptoms. Therefore, the applicant has not demonstrated that the plan for a psychological assessment is reasonable and necessary as a result of the accident.
Issue #11 – The applicant is not entitled to $2,200.00 for a cognitive assessment
93I find that the applicant has not established, on a balance of probabilities, that a cognitive assessment is reasonable and necessary for the following reasons.
94The applicant seeks payment for a plan dated January 24, 2022, completed by Dr. Lad in the amount of $2,200.00 for a cognitive assessment. In the plan, Dr. Lad relies on the applicant’s self-reports that she had no pre-existing conditions, and she has a decrease in her activities of daily living, social and recreational activities, and she is more withdrawn. The goals of the plan are to evaluate the applicant’s neurocognitive level of functioning. However, it is unclear whether the applicant’s symptoms are related to her pre-existing condition or the accident.
95The applicant submits that the proposed cognitive assessment is reasonable and necessary. The applicant relies on the progress report dated August 8, 2022, by Nikolas Dampier and his recommendation for a cognitive assessment for the applicant’s attention and memory issues. The applicant generally refers to the clinical note dated April 12, 2022, by Dr. Miula. Although Dr. Miula mentions that Nikolas Dampier is assisting the applicant with her reading, Dr. Miula also mentions that the applicant needs therapy because she is being evicted. In addition, Nikolas Dampier indicates the applicant has not been able to read a book for seven years, which is a problem which preceded the accident.
96The respondent submits that the applicant has not met her onus to prove that the proposed cognitive assessment is reasonable and necessary. The respondent relies on the IE reports by Dr. Hines and Susan Szainwald, in which the applicant reported no changes in her concentration, memory and attention after the accident. The respondent further submits there is no medical evidence in support of a concussion or traumatic brain injury, and Nikolas Dampier, as an occupational therapist is not qualified to diagnose cognitive impairments.
97I find that the evidence does not support the need for a cognitive assessment because the applicant has not established that her memory, concentration and attention difficulties are related to the accident. I find that the records from the Mental Health Urgent Care Clinic, at the Mississauga Hospital include a pre-accident history of poor concentration, irritability, anxiety and difficulty sleeping. I find that the applicant was diagnosed with major depressive disorder and generalized anxiety disorder by the doctors at Mississauga Hospital before the accident, and on July 5, 2019, Dr. Miula advised she will need long-term therapy.
98I find that the applicant has not demonstrated that a cognitive assessment is reasonable and necessary because the applicant does not explain the reason for the assessment and the evidence does not support the assessment for her accident-related injuries. Therefore, the applicant has not demonstrated that the plan for a cognitive assessment is reasonable and necessary as a result of the accident.
The applicant has not demonstrated that Attendant Care Benefits (“ACBs”) are reasonable and necessary
99I find that the applicant is not entitled to ACBs as she has not demonstrated that attendant care is reasonable and necessary for her accident-related injuries, nor that attendant care expenses have been incurred.
100The applicant claims that she is entitled to ACBs of $3,000.00 per month from December 24, 2021 to date and ongoing for her functional impairments, including dressing, grooming, toenails, bathroom hygiene, bedmaking, caring for clothing, transfers, exercises, supervision, medications and dressings.
101Section 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 ACBs provided by an aide or attendant. The monthly amount of attendant care that an applicant is entitled to is determined in accordance with a form called an Assessment of Attendant Care Needs (“Form-1”).
102Section 3(7)(e)(i) and (ii) of the Schedule establish that an insured person has incurred an expense if the person has received the goods or services to which the expense relates, paid the expense, promised to pay the expense, or is otherwise legally obligated to pay the expense. Section 3(7)(e)(iii) of the Schedule sets out two categories of attendant care providers: professional service providers, who provide services in the course of the employment, occupation, or profession in which they would ordinarily be engaged but for the accident; and non-professional service providers who have sustained an economic loss as a result of providing goods or services to the injured person.
103The onus is on the applicant to prove on a balance of probabilities that she required the care of an aide or attendant as a result of the accident and that she incurred the expense of hiring one. Here, the applicant claims entitlement to an ACB based on a Form-1 dated November 30, 2021, completed by Nikolas Dampier, occupational therapist.
104The applicant submits that she is entitled to an ACB at a rate of $3,000.00 per month from December 24, 2021 to date and ongoing. The applicant submits that an ACB at a rate of $3,000.00 is undisputed because the respondent did not schedule an IE to dispute the benefit until March 27, 2023. However, the applicant does not explain the reason that an ACB at a rate of $3,000.00 per month is reasonable and necessary for her accident-related injuries.
105The respondent submits that the applicant’s claim for ACBs should be dismissed, as she has not adduced any evidence indicating that attendant care services have been incurred, and there is no evidence to support the applicant’s claim for ACBs in the amount of $3,000.00 per month.
106The respondent submits that the applicant had pre-existing left wrist pain from an unresolved previous wrist fracture. The respondent further submits that the report of Nikolas Dampier is unreliable because it was a virtual assessment, and he relies exclusively on the applicant’s self-reports of pain and functional limitations. The respondent relies on the IE report by Susan Szainwald, in which the assessor concludes that the applicant does not require assistance with her personal care for her accident-related injuries. The respondent further relies on the IE report of Dr. Hines, in which the applicant reported that she is independent with self-care and housekeeping tasks. The respondent further submits that the applicant has not incurred any attendant care expenses.
107I find on a balance of probabilities that the applicant is not entitled to ACB, as she has not demonstrated that she requires attendant care for her accident-related injuries, nor has she submitted any evidence or invoices that attendant care services were incurred, pursuant to the requirement in s.3(7) of the Schedule.
Interest
108Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no benefits owing, interest is not payable.
Award
109The applicant sought an award under s. 10 of Reg. 664 because the respondent unreasonably withheld payment of benefits.
110Under s. 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. I find an award is not appropriate because the applicant has not met her onus to explain how the respondent unreasonably withheld or delayed the payment of benefits. Thus, an award under s.10 of Reg. 664 is not warranted.
ORDER
111For the reasons set out above, I find that:
i. The applicant is statute-barred from proceeding with her claim for an NEB;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The respondent’s denial of OCF-18 dated January 12, 2023 was proper notice in accordance with s. 38(8) of the Schedule;
iv. The applicant is not entitled to attendant care benefits;
v. Interest is not payable and the respondent is not liable to pay an award, and;
vi. The application is dismissed.
Released: October 29, 2025
Lisa Holland
Adjudicator