Citation: Bertrand v. Co-operators General Insurance Company, 2025 ONLAT 24-001914/AABS

Licence Appeal Tribunal File Number: 24-001914/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:

Tracy Bertrand

Applicant

And

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Sherilyn Pickering, Counsel

For the Respondent:

Alexander Dos Reis, Counsel

HEARD:

By way of written submissions

1Tracy Bertrand, the applicant, was involved in an automobile accident on September 25, 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.

ISSUES

2The issues in dispute are:

Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to an attendant care benefit (“ACB”) in the amount of $1,636.35 per month from October 26, 2022, to date and ongoing?
Is the applicant entitled to the following OCF-18s for medical benefits and assessments proposed by Rehab First in the following treatment plans (“OCF-18s”):

a) $2,195.00 for an occupational therapy in-home assessment submitted April 19, 2022;

b) $4,602.88 for occupational therapy services submitted October 31, 2022;

c) $4,114.67 for rehabilitation support worker (“RSW services”) submitted October 31, 2022;

d) $8,545.75 for assistive devices (washer, dryer, food processor, vacuum, toothbrush etc.) submitted October 31, 2022?

Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Fox Psychological Services in an OCF-18 plan submitted May 2, 2022?
Is the applicant entitled to physiotherapy and massage therapy services proposed by Body n Balance Physio & Wellness in the following OCF-18s:

a) $292.49 ($1,392.49 less $1,100.00 approved) in an OCF-18/treatment plan (“plan”) submitted March 24, 2022;

b) $1,629.82 in a plan submitted October 18, 2023; and

c) $1,603.48 in a plan submitted April 22, 2024?

Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3After reviewing both parties’ submissions and all the evidence I find as follows:

The applicant’s impairments fall outside of the MIG.
The applicant has established entitlement to an ACB in the amount of $399.35 from October 26, 2022, to date. However, she is not entitled to payment because the benefit has not been incurred.
The applicant is entitled to the following OCF-18s recommended by Rehab First:

a) $1,446.37 for an occupational therapy in-home assessment submitted April 19, 2022.

b) $1,197.50 for occupational therapy services submitted October 31, 2022.

c) $970.50 for assistive devices submitted October 31, 2022

The applicant is entitled to $2,200.00 for a psychological assessment proposed by Fox Psychological Services in an OCF-18 plan submitted May 2, 2022.
The applicant is entitled to the following OCF-18s proposed by Body n Balance Physio & Wellness recommending physiotherapy and massage:

a) $292.49 ($1,392.49 less $1,100.00 approved) in an OCF-18submitted March 24, 2022.

b) $1,629.82 in a plan submitted October 18, 2023.

c) $1,603.48 in a plan submitted April 22, 2024.

The applicant is entitled to payment of interest on all the OCF-18s I have deemed to be reasonable and necessary.
The applicant is not entitled to the OCF-18 in the amount of $4,114.67 for rehabilitation support worker (“RSW services”) proposed by Rehab First and submitted October 31, 2022;
The respondent is not liable to pay an award under s. 10 of Reg. 664.

PROCEDURAL ISSUES

4The respondent brought a motion to extend the page limits of its submissions from 15 to 19 pages using endnotes because the applicant’s submissions did not comply with the Tribunal’s case conference report and order (“order”). In the alternative, the respondent requested that the pages which do not comply with the order be excluded. The applicant consents to the respondent’s request to extend its page limits. Since the motion is on consent, I grant the respondent’s request to expand the page limits of its submissions to include end notes.

BACKGROUND

5The applicant’s pre-accident medical history is significant for chronic pain from two prior accidents in 2013 and 2017, fibromyalgia, arthritis, and bowel issues. She also has a significant history of serious psychological impairments. The applicant acknowledges that her pre-accident medical history was significant, however, her psychological condition was stable, and she was able to function at work and in her day-to-day activities.

ANALYSIS

The applicant’s accident-related impairments fall outside of the MIG.

6Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

7An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that her accident-related impairments fall outside of the MIG.

8The applicant argues that she should be removed from the MIG because she had documented pre-existing medical conditions which would prevent recovery within the MIG. She also submits that she has suffered a concussion, chronic pain and a psychological impairment which warrants removal from the MIG. In support of her position, she relies on the clinical notes and records (“CNRs”) of Dr. Weisbrod, family doctor, Christine Webb, registered nurse, Dr. Karagianis, treating psychiatrist, and Sheena Chapman, physiotherapist. She also relies on the reports of Dr. Mitchell, general practitioner, Dr. Miller, psychologist, Dawnne Killen (OT Killeen), occupational therapist, Allan Walton, psychotherapist, and Dr. Friesen Walton, psychologist.

9The respondent argues that the applicant’s accident-related impairments fall within the definition of a minor injury. It submits that the applicant has not met her onus in proving that she should be removed from the MIG as a result of any of the above criteria. It relies on two insurer examination (“IE”) psychological reports completed by Dr. Mor and Dr. Dancyger who found no evidence of a psychological impairment which would remove her from the MIG. It also relies on two physiatry IE reports of Dr. Dessouki and Dr. Khan who both diagnosed the applicant with soft-tissue injuries which could be treated in the MIG.

10I find that the applicant is removed from the MIG due to chronic pain.

Chronic Pain

11I find that the applicant suffers from chronic pain as a result of the accident which removes her from the MIG for the following reasons.

12First, although I acknowledge that the applicant has been diagnosed with strain and sprain impairments of the cervical, thoracic and lumbar spine which fits within the definition of a minor injury, I find the totality of the medical evidence supports that she suffers from chronic pain which has had an impact on her function. For example, the CNRs of Body n Balance support that she regularly attended treatment where she complained of ongoing pain which was aggravated by everyday tasks. The following are some examples:

a) November 29, 2021, notes ongoing pain which was aggravated with everyday tasks such as reaching for a razor and cleaning snow off her car;

b) December 10, 2021, notes ongoing pain which was aggravated after driving to work;

c) January 3, 2022, notes ongoing pain which resulted in her laying on the couch for three days;

d) April 4, 2022, notes that the applicant spent most of the day in bed after doing laundry because of pain in the mid and low back.

13Second, a consult note of Ms. Webb dated January 22, 2022, notes ongoing pain in the neck and mid spine. The nurse noted that the range of motion (“ROM”) of the applicant’s neck was reduced by 50%. A subsequent note dated February 10, 2022, notes ongoing chronic pain and that the applicant had difficulties driving to Barrie over the weekend due to severe back pain. I find the Ms. Webb’s consult notes support that the applicant was experiencing ongoing pain which was impacting her ability to function.

14Third, a consult note of Dr. Mitchell, general practitioner, dated April 26, 2022, notes ongoing daily neck pain which was having an impact on the applicant’s sleep, work and her ability to sit and walk. Although she had returned to her work as a social worker following the accident she reported having to lie down in-between telephone counselling sessions. Dr. Mitchell diagnosed the applicant with chronic neck pain, complicated by pre-existing conditions and referred her to a pain management clinic. Although I note that Dr. Mitchell’s assessment was done by videoconference, I find the impression of the doctor consistent with the evidence of the applicant’s treating practitioners.

15Fourth, I find the applicant consistently reported neck and back pain to Dr. Weisbrod, her family doctor throughout 2022 and 2023. A CNR dated February 15, 2023, notes that the doctor observed tenderness in the neck with decreased ROM.

16Fifth, the Tribunal has defined chronic pain as ongoing or recurrent pain lasting beyond the usual course of acute illness or injury, more than 3 to 6 months which adversely affects an individual’s well being. I note that the case law also supports that a diagnosis of chronic pain syndrome is not required to be removed from the MIG. I find the post-accident medical evidence of the applicant’s treating practitioners establish that she suffers from ongoing chronic pain in her neck and back which has had an impact on her function.

17Finally, I find the IE reports of both Drs. Dessouki and Dr. Khan demonstrate that the applicant was experiencing ongoing neck, shoulder and low back pain with functional impairment. Moreover, both doctors opined that it was plausible that the applicant suffered an exacerbation of her pre-existing neck pain and symptoms. Dr. Khan noted that the physical examination revealed impairment in the ROM of the cervical spine, secondary to soft-tissue injuries sustained in the accident. Of significance, although the pre-accident CNRs support that the applicant had fibromyalgia and had suffered from chronic pain from a previous accident there were very few CNRs pre-accident that support that she was complaining of ongoing neck and back pain with impairment in function prior to the accident. I find that IE reports support that the applicant has ongoing pain with impairment to function because as of May 2023 the ROM of her cervical spine was still limited. The applicant also reported to these assessors that she had limitations with respect to carrying out certain household tasks such as cooking and some cleaning tasks.

18For the above reasons, I find the applicant has proven that she should be removed from the MIG due to chronic pain. Since I have determined that she is removed from the MIG due to chronic pain it is unnecessary for me to address whether she is removed from the MIG because of a pre-existing condition, concussion or psychological impairment. I will now address whether the applicant is entitled to an ACB and the other benefits in dispute.

The applicant has established entitlement to an ACB in the amount of $399.35 per month from October 26, 2022, to date.

19Section 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 maximum payable under the Schedule is $3,000 per month for non-catastrophic insureds and is calculated in accordance with the Form 1.

20In order for the insured person to receive payment for an ACB, there must be evidence that the expense was incurred as per s. 3(7)(e) of the Schedule. To meet the definition of “incurred” the applicant must satisfy the following three criteria:

i) the applicant received the service to which the expense relates;

ii) the applicant paid the expense or promised to pay the expense or is legally required to pay the expense; and

iii) the person who provided the service did so,

a) in the course of their employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or

b) sustained an economic loss as a result of providing the goods or services to the insured person.

21The applicant argues that prior to the accident she was independent with personal care. Post-accident she experiences difficulties with, grooming, washing and drying her hair, nail care, meal preparation, daily hygiene and mobility because of ongoing pain and reduced motivation. She also submits that she experiences dizziness with positional changes with bending, as required to don and doff shoes and pants. The applicant relies on the attendant care assessment report of OT Killeen dated October 26, 2022. The report states that the applicant’s chronic pain, occasional dizziness and psychological impairment has resulted in a lack of motivation to complete her activities of daily living. OT Killeen recommended that the applicant receive $1,636.35 per month in ACBs for assistance with these tasks.

22The respondent submits that the applicant has failed to prove that the ACBs are reasonable and necessary for the period in dispute. It maintains that her family doctor’s CNRs do not recommend that she requires ACBs or that she has any functional limitations. In addition, it argues that the applicant has consistently reported to assessors that she remains independent in all her personal care tasks and had resumed most of her responsibilities around her home. Moreover, she has resumed driving and has returned to work at her pre-accident job and hours, as a social worker. The respondent maintains that the applicant’s function does not equate to someone who requires ACBs. In addition, it submits that I should give the report of OT Killeen little weight because the therapist did not review any CNRs in completing the assessment. Finally, the respondent asserts that the applicant is not entitled to ACBs for the time period claimed because she has not submitted any evidence to support that the benefit has been incurred as per s. 3(7)(e) of the Schedule.

23Neither party spent much time addressing the various recommendations made by OT Killeen. However, based on the totality of the evidence I find the applicant has established entitlement to ACBs in the amount of $399.35 for the following reasons.

24I find OT Killeen’s recommendations under Level 1 Care for 315 minutes per week for meal preparation and 10 minutes per week for assistance with changing bed sheets under Level 2 to be reasonable and necessary. I find the evidence supports that the applicant reported functional limitations with carrying out meal preparation to her treating practitioners as well as to the IE assessors because of chronic neck, back and shoulder pain. I find the evidence supports that the applicant returned to work as a social worker following the accident, however, following her workday, she experiences increased fatigue which results in limitations with carrying out meal preparation. Further, the activities involved in preparing meals leave her exhausted and she suffers in pain for days afterwards. I also find OT Killeen’s recommendation that the applicant requires weekly assistance with changing fitted bed sheets under Level 2 reasonable because of ongoing neck, shoulder and back pain to be reasonable as she experiences severe pain when reaching. For the same reason, I find the 35 minutes per week recommended for applying the TENS machine to be reasonable under Level 3. The total amount of ACBs under Levels 1, 2 and 3 when calculated in accordance with the formula on the Form 1 equals $399.35 per month.

25However, I find the balance of the recommendations for ACBs recommended by OT Killeen are not reasonable and necessary because they are not consistent with the applicant’s functional limitations. For example, the therapist recommended that the applicant receive weekly supervision with shaving, applying makeup and washing her hair. I find that the applicant consistently reported being fully independent in carrying out her self-care tasks and other daily activities to most of the assessors throughout the claim such as Dr. Mor, Dr. Dessouki and Dr. Khan. In addition, the assessors refer to the applicant as being well groomed.

26I find OT Killeen’s assessment was completed in the same month as the above IEs of Dr. Mor and Dr. Dessouki. Moreover, I was not provided with any explanation regarding these inconsistencies in her reply submissions. I also find that the applicant had returned to her pre-accident employment as a social worker which I find at odds with OT Killeen’s findings regarding her poor memory, concentration and cognitive function. In addition, other than the one reference made by the applicant’s family doctor regarding post-concussion symptoms, I find the CNRs do not support that the applicant sustained a concussion as a result of the accident. For these reasons, I give this therapist’s conclusions regarding these cognitive impairments or dizziness and lack of balance little weight because she did not review any CNRs in completing this assessment.

27I also find many of the statements made by OT Killeen in her report inconsistent with the applicant’s function. For example, the therapist notes that she observed functional impairments in the applicant’s ability to drive. Although the CNRs indicate that the applicant experienced pain after long drives, the CNRs and the therapist’s report support that she resumed driving post-accident and could still drive up to two to three hours. In addition, OT Killeen recommended that the applicant requires 315 minutes in ACBs per week for supervision while ambulating in the home. However, then the therapist states that the applicant is independent with ambulating outside in the community. In my view, these recommendations are contradictory.

28Further, OT Killeen recommends 410 minutes per week for comfort and safety in the applicant’s bedroom environment, without providing any justification for this recommendation. I find this recommendation inconsistent with the fact that the applicant has continued to work as a social worker post-accident and as of the time of this assessment she was still driving to access clients in the community. In the same vein, the therapist recommended that she requires assistance with coordination of ACBs and administering and maintaining medication. I find these recommendations inconsistent with the fact that the applicant continued to work as a social worker, which would require the ability to manage her own schedule, maintain meetings with clients and provide social work support.

29Despite the fact that I have determined that the applicant was removed from the MIG because of chronic pain which resulted in functional limitations, I find she has not met her onus in proving that all the amounts recommended by OT Killeen for ACBs are reasonable and necessary.

30Although I find that she has established entitlement to ACBs in the amount of $399.35 per month, the applicant is not entitled to payment of same because she has not proven that the expense has been incurred pursuant to s. 3(7)(e) of the Schedule. The applicant has not proven that she received the service to which the expense relates, and I have no evidence before me that she paid the expense or promised to pay the expense. Now I will address whether the applicant is entitled to the OCF-18s recommended by Rehab First.

OCF-18s recommended by Rehab First

31Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary. To do so, the respondent 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. The Tribunal has also determined that treatment is reasonable and necessary if it results in the temporary relief of pain if it leads to an improvement in function.

32Section 25(1) of the Schedule provides that an insurer shall pay for reasonable fees to complete an assessment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that the assessment is reasonable and necessary. The jurisprudence also supports that to prove that an assessment is reasonable and necessary the applicant must have evidence that he has an accident-related impairment which the assessment is meant to address.

CF-18s Proposed by Rehab First

In-Home Assessment

33I find the OCF-18 for an occupational therapy in-home assessment to be partially reasonable and necessary in the amount of $1,446.37.

34The goal of the OCF-18 was for pain reduction to safely return the applicant to her activities of daily living. The OCF-18 recommended 19 hours for the assessment at a cost of $1,895.25, $200 for form preparation, and $99.75 for provider time for a total cost of $2,195.00. The applicant submits that she was struggling with occupational performance issues, including housekeeping, personal care, recreational tasks, and self-employment tasks. Considering her injuries, it was reasonable to investigate these impairments by way of an occupational therapy in-home assessment.

35The respondent argues that the in-home assessment is not reasonable and necessary because the applicant’s family doctor’s CNRs do not mention any accident-related functional limitations. The respondent also argues that the cost of the OCF-18 is excessive because it recommends 19 hours for the therapist to complete the assessment at a cost of $1,895.25, plus $200 for form preparation, and $99.75 for provider travel time, which it submits it is not required to pay. It relies on various decisions from this Tribunal (See: Swing v. Aviva Insurance Company of Canada, 2023 CanLII 128288 (ON LAT); Barrie v. Intact Insurance Company, 2022 CanLII 98060 (ON LAT); 17-003475 v. Aviva Insurance Canada, 2018 CanLII 97838 (ON LAT); Smith v. Wawanesa Mutual Insurance Company, 2022 CanLII 106432 (ON LAT) and Moogk v. Economical Insurance Company, 2023 CanLII 98398 (ON LAT)); where the adjudicators determined that provider travel expense and mileage is not payable under the Schedule. The applicant did not address the argument of whether provider travel expenses or mileage are payable under the Schedule, which I will discuss further below.

36I find the occupational therapy in-home assessment to be reasonable and necessary to investigate whether the applicant has any functional limitations in her ability to carry out her daily activities. In this case, I have determined that the applicant suffers from chronic pain which has resulted in functional limitations, which is supported in the CNRs of the applicant’s treating practitioners. I reject the respondent’s argument that because the family doctor’s CNRs do not note any functional limitations or recommend ACBs, that the assessment is not reasonable and necessary because that is the role of the occupational therapist. In this case, the respondent did not submit a competing in-home assessment for me to consider.

37However, I agree with the respondent that 19 hours to complete the assessment and report is excessive and note that the invoice from the clinic for the incurred assessment was $1,978.04 which was less than the amount of the OCF-18. In addition, OT Killeen billed 5.33 hours for travel time for the assessment which totalled $531.67. I find that the applicant has not proven that the $531.67 for provider travel time is a payable benefit under the Schedule or that it is reasonable and necessary. I agree with the adjudicators in the above-noted decisions relied upon by the respondent that the Tribunal has consistently held that provider travel time and mileage are not payable benefits under the Schedule. Consequently, I find that the OCF-18 is partially reasonable and necessary in the amount of $1,446.37.

Occupational Therapy

38I find the OCF-18 for occupational therapy partially reasonable and necessary in the amount of $1,197.50.

39The OCF-18 was authored by OT Killeen and the goal was to reduce pain and provide education on proper body mechanics, equipment recommendations, remedial and compensatory strategies to improve cognition, and introduction of mindfulness and stress reduction strategies to facilitate safe functional participation in activities of daily living. The OCF-18 proposed $399.00 for a progress report; 5 hours for provider travel time at a cost of $997.50 for two sessions, mileage for two sessions at a cost of $363.00; four virtual sessions and two in-person sessions of occupational therapy at a cost of $2,493.75; collaboration and provision of clinical activities at a cost of $149.63 and $200 for form preparation for a total cost of $4,602.88. Under the additional section, it indicated that the proposed occupational therapy was recommended by OT Killeen who will provide various assistive devices that will assist her with energy conservation or compensatory strategies to complete activities of daily living, housekeeping, work and leisure activities.

40The applicant argues that the OCF-18 is reasonable and necessary because she sustained physical, cognitive and psychological impairments that have resulted in functional limitations and the goal of the OCF-18 is for pain reduction and to assist the applicant in safely participating in her daily activities.

41The respondent submits that the only evidence the applicant relies on to support that the OCF-18 is reasonable and necessary is report of OT Killeen, which merits little weight because it is not a neutral report because it was authored by the same therapist that wrote the in-home assessment. The respondent submits that the Tribunal has previously found in Diaz v. Pembridge Insurance, 2023 CanLII 44327 (ON LAT) that an expert’s promotion of a plan tends to reduce the evidentiary weight of that opinion since the opinion is not offered at arm’s length because they may benefit financially if the plan were deemed reasonable and necessary. The respondent also submits that the quantum of the OCF-18 is excessive. For instance, Line 4 seeks funding for 25 hours even though the OT is only providing 6 sessions of occupational therapy. It maintains that there is little evidence that the applicant requires even one OT session, let alone 6. Further, assuming each OT session is one hour, there is nothing to suggest that the OT would need to spend another 19 hours doing such tasks as reviewing documentation, procuring devices, or consulting with healthcare professionals.

42As already highlighted above, I find that the applicant has some functional limitations which would benefit from occupational therapy. However, I find that she has not proven that the cost of the OCF-18 is reasonable. I agree with the respondent that the cost of the OCF-18 is excessive and the information on the plan is confusing and unclear. For example, the therapist recommended four virtual OT sessions and two in-person OT sessions totalling 25 hours at a cost of $2,493.75 (with an hourly rate of $99.75). As a result, since the plan recommended six sessions of occupational therapy, I find six sessions at the hourly rate of $99.75 to be reasonable. Further, I find $399.00 for a progress report and $200.00 for form completion to be reasonable and necessary for a total cost of $1,197.50. However, I find that the amounts charged for travel time and mileage are not payable under the Schedule for the reasons already noted above.

Rehabilitation Support Worker

43I find the applicant is not entitled to the OCF-18 proposing RSW assistance submitted on October 31, 2022, in the amount of $4,114.67.

44The OCF-18 for RSW services was also authored by OT Killeen and recommended 12 two-hour sessions at a cost of $2,036.65; $174.57 for a progress report; $200.00 for form preparation; $422.40 for provider mileage and $698.28 for provider travel time; and $149.63 for collaboration and supervision with the occupational therapist. The goal was to provide a goal directed occupational therapy supervised integration program (with a rehabilitation support worker) to facilitate her return to her pre-accident activities. Under barriers to recovery, it stated that the applicant identified cognitive difficulties post accident, including issues with short term memory, concentration and organization and planning. She also has physical issues which interfere with her ability to perform her activities of daily living and homemaking tasks.

45The applicant argues that the goals of both the occupational therapy services and rehabilitation services are reasonable and necessary because an RSW is cheaper than an occupational therapist and would reduce the overall cost if the RSW provides the sessions over the occupational therapist.

46The respondent argues that the OCF-18 seeking RSW services is really for case management which the applicant does not qualify for because she is not catastrophically impaired. It also submits that the OCF-18 is not reasonable and necessary because it was submitted at the same time as the OCF-18 for occupational therapy was submitted and it would be a duplication of services.

47I find the OCF-18 recommending RSW services to be excessive and is a duplication of services as the goal of the OCF-18 for occupational therapy was to safely return the applicant to her daily activities which is the same as the goal of this OCF-18. Further, the OCF-18 was submitted at the same time. I find that the applicant’s impairments and functional limitations do not require this type of assistance in combination with occupational therapy treatment. I also find the amount of the OCF-18 excessive considering the occupational therapy recommended. I also find that there is a lack of evidence supporting that the applicant requires RSW services because of any accident-related cognitive impairments or difficulties with short term memory, concentration, organizing and planning.

48For the above reasons, I find the applicant has not proven on a balance of probabilities that the OCF-18 for RSW services is reasonable and necessary.

Assistive Devices

49I find the OCF-18 recommending assistive devices is partially reasonable and necessary in the amount of $970.50.

50OT Killeen also authored the OCF-18 for assistive devices and recommended 30 assistive devices which include an electric tub scrubber, food processor, anti-fatigue mats, electric toothbrush, long handled duster, cordless vacuum, dosette box, Dragon Natural Speak with headset, washing machine, dryer, pedestals for wash and dryer, hand held shower head, TENS machine, long handled razor, back support, tub grab bar, bath seat with back, and the associated costs of each device. The total cost of the OCF-18 was $8,545.75, and the goal is to reduce the applicant’s pain and increase her independence with activities of daily living.

51I find Lines 1, 2, 3, 4, 6, 21, 25, 26, 27 and 32 to be reasonable and necessary which includes items recommended to assist the applicant with cooking and housekeeping tasks. Moreover, the applicant consistently reported that she experiences severe pain with prolonged sitting. Consequently, I find the recommendation for a back support to be reasonable. I also find the long-handled razor to be reasonable and necessary. While I note that the applicant reported being fully independent with self-care, she had reported to another assessor that she had difficulty reaching while shaving her legs and difficulties with reaching in general. I accept that the applicant has difficulty with reaching and overhead movement because of her chronic neck pain. In addition, she consistently reported to assessors (including the IE assessors) that she had not fully returned to her pre-accident housekeeping tasks because of chronic neck, back and shoulder pain.

52In addition, I find the goal of assistive devices such as the electric tub scrubber, food processor, anti-fatigue mats, long handled duster, TENS machine and replacement pads, long handled razor and back support to be reasonable to help the applicant return to preparing meals and her pre-accident housekeeping and home maintenance tasks by reducing the pain associated with those tasks.

53I find that the applicant has not proven that the balance of the assistive devices recommended by OT Killeen are reasonable and necessary. As I have already highlighted above, I do not find the medical evidence supports that the applicant suffers from dizziness or balance issues because of any accident-related impairment. Consequently, I do not find OT Killeen’s recommendation that the applicant receive a shower chair, tub grab bar and hand-held shower head reasonable or necessary. I also find the therapist’s recommendation that the applicant receive a new washer and dryer plus pedestals and all the installation and warrantee costs excessive. In OT Killeen’s report she indicates that the applicant is unable to fold sheets because she is unable to reach. However, the therapist already recommended that the applicant receive a reacher to assist with laundry. In my view, a new washer and dryer will not assist the applicant with folding sheets. Further, the applicant reported to OT Killeen that she uses a vacuum instead of sweeping, however, she uses a scrub brush to get pet hair off the carpets. I find OT Killeen’s recommendation that the applicant receive two mini pet vacuums excessive and unnecessary because the applicant reported that vacuuming does not remove the pet hair. There was also a delivery fee on the OCF-18 which was not explained. Consequently, the applicant has not proven that it is reasonable.

54Finally, OT Killeen recommended Dragon Naturally Speaking to assist based on the applicant’s self report that her pre-existing fibromyalgia (wrist/forearm) was exacerbated by the accident. I find the medical evidence before me insufficient to support this. Nor do I find that the applicant linked her TMJ issues to the accident to necessitate the need for an electronic toothbrush.

55For the above-noted reason, I find the OCF-18 for assistive devices to be partially reasonable and necessary in the amount of $970.50.

OCF-18s proposed by Body n Balance

56The applicant is entitled to the three OCF-18s recommending physiotherapy and massage.

57The goal of all three OCF-18s was to reduce pain, increase strength and improve ROM to return the applicant to her activities of daily living. Since the treatment and goals of all three OCF-18s are the same I will address them together. The partial denial of the first OCF-18 in the amount of $200.00 was based on the respondent’s position on the MIG. The second OCF-18 submitted October 18, 2023, was for 9 physiotherapy sessions and 9 massage therapy sessions. The third OCF-18 submitted April 22, 2024, recommended 10 physiotherapy sessions and 8 massage therapy sessions. All three OCF-18s were either partially denied or denied based on the respondent’s position on the MIG.

58The applicant submits that the three OCF-18s for physiotherapy and massage are reasonable and necessary because Ms. Chapman noted that the applicant’s pain was affecting her ability to complete her tasks of employment and other activities of daily living because she required frequent breaks from sitting and lying down and she could not complete her housekeeping tasks, cooking and pet care. She submits that the goal of all three OCF-18s was to reduce pain, increase strength and range of motion (“ROM”) to permit her return to her pre-accident work activities and activities of daily living. The applicant then referred to information on the OCF-18s regarding improvements to her ROM between 2022 to 2024 to support that they are reasonable and necessary.

59The respondent argues that the applicant has not met her onus in proving that the three OCF-18s for physiotherapy and massage are reasonable and necessary. It submits that relying on the OCF-18s on their own is insufficient to meet her evidentiary burden. It also contends that the applicant’s family doctor has not recommended physiotherapy or massage since February 15, 2023. Finally, the applicant reported to Dr. Mitchell in July 2022, that despite receiving ongoing treatment her symptoms have worsened.

60I find the applicant is entitled to all three OCF-18s recommending physiotherapy and massage because I have determined that she suffers from chronic pain which has interfered with her function. I also find that the applicant’s need for ongoing treatment was supported by the applicant’s treating practitioners including Dr. Weisbrod, Nurse Webb and Ms. Chapman. I also find the CNRs of Ms. Chapman generally support that the applicant received improvements from past physiotherapy.

61In addition, I note that the IE of Dr. Khan establishes that as of May 5, 2023, the ROM of the applicant’s cervical spine was still limited and that she was still suffering from ongoing pain and symptoms as a result. Consequently, I find that the goal of the OCF-18s to reduce pain and increase ROM to be reasonable objectives.

62Finally, I do not find the amounts of the three OCF-18s recommending physiotherapy and massage excessive. For the above reasons, I find that all three OCF-18s to be reasonable and necessary.

OCF-18 proposed by Fox Psychological Services

63I find the OCF-18 proposed by Dr. Miller recommending a psychological assessment in the amount of $2,200.00 to be reasonable and necessary.

64The goal of the OCF-18 submitted on May 2, 2022, was to conduct a psychological assessment for the purpose of determining whether the applicant sustained a psychological impairment as a result of the accident. The applicant submits that the psychological assessment is reasonable and necessary because Dr. Miller had done an intake interview and opined that her presentation and symptoms indicated that she was struggling emotionally, cognitively, and physically due to the accident. The applicant also relies on the psychological report of Dr. Friesen-Walton and Mr. Walton from 2025 who agreed with Dr. Miller that the applicant sustained a psychological impairment as a result of the accident as they diagnosed with her with major depressive disorder with anxious distress, somatic symptom disorder with predominant pain, and features of PTSD. They were also of the opinion that the accident aggravated her pre-existing psychological dysfunction and impairment. Finally, she maintains that the fact that the respondent has obtained two psychological assessments supports the one sought by her is reasonable and necessary.

65The respondent argues that the OCF-18 for a psychological assessment is not reasonable and necessary because her family doctor’s CNRs are devoid of any accident-related psychological complaints. First, the only mention of any psychological symptoms was two and a half years post-accident, and she failed to link these to the accident. The respondent relies on the IE report of Dr. Mor dated August 19, 2022, who determined that the applicant’s psychological impairments are not solely and primarily related to the accident, but rather because of issues she was having with her brother. The respondent also relies on the second IE report of Dr. Dancyger who opined that the applicant did not report any psychological complaints. It also submits that I should give the report of Dr. Friesen-Walton no weight because the report does not indicate what role the doctor played in the assessment or in authoring the report or diagnoses. It submits that this Tribunal has repeatedly given no weight to psychological reports for this exact reason.

66I find that the medical evidence overwhelmingly supports that the applicant had a significant pre-accident history of serious psychological illness and impairments. Further, I find that she consistently reported psychological symptoms post-accident to various assessors. In Dr. Miller’s pre-screening report the doctor acknowledged her pre-accident psychiatric history and indicated that the applicant was vulnerable because of it to psychological deterioration. I find the doctor’s recommendation that the applicant undergo a psychological assessment to determine whether she sustained a psychological impairment as a result of the accident or whether her pre-accident psychological condition had deteriorated to be reasonable and necessary. Further, I find the assessment fits within the $2,000 cap as per s. 25 of the Schedule.

67Ultimately, I find the psychological IE reports unhelpful and find that they are lacking in detail and analysis. For example, I do not find Dr. Mor’s conclusion that the applicant’s psychological impairments are not solely or primarily caused by the accident to be in line with the causation test. Nor does the doctor provide any explanation for reaching this conclusion. I also agree with the applicant that if it was reasonable and necessary for the respondent to complete two IE assessments, she should have the opportunity to rebut its reports, especially considering her pre-accident psychiatric history.

68For the above-noted reasons, I find the psychological assessment recommended by Dr. Miller in the amount of $2,200.00 to be reasonable and necessary.

The applicant is entitled to interest on overdue benefits.

69Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-18s that I have determined to be reasonable and necessary or partially reasonable and necessary.

The applicant is not entitled to an award.

70The applicant sought an award under s. 10 of Reg. 664. Under 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.

71The applicant seeks a special award on the basis that the respondent unreasonably withheld payment of the benefits and engaged in an unyielding, stubborn approach to her claim.

72The respondent submits that the applicant has not met the high threshold for an award claim. It also maintains that the Tribunal has consistently held that it cannot be penalized for relying on the opinions of its IE assessors. The respondent also requests that the particulars of the applicant’s award claim be excluded because she did not explain in her submissions the basis for her award claim or the relevance of the particulars of the award claim. Instead, the respondent submits that she is attempting to sneak in an additional nine pages of submissions.

73Despite filing reply submissions the applicant did not address the respondent’s argument or provide any explanation for failing to comply with the Tribunal’s order.

74I agree with the respondent that the applicant did not explain the relevance of the particulars of the award claim in her written submissions. I note that this document included an additional five pages of written submissions which were improperly spaced, and the margins were expanded. It also attached extensive endnotes which fall outside of the page limits outlined in the Tribunal’s order. I find the applicant is attempting to further extend the page limits for the written hearing without permission from the Tribunal or the consent of the other party. Paragraph 14 of the Tribunal’s order provided the parties with 15 pages for written submissions which I find more than sufficient to address the issues in dispute.

75In this case, I have already allowed the applicant’s submissions even though they did not comply with the Tribunal’s order. However, I find that it would be procedurally unfair to the respondent to consider the additional nine pages of submissions set out in the document titled “further particular for award claim.” Paragraph 15 of the Tribunal’s order stated that the hearing adjudicator may not consider submissions which do not comply with the filing requirements. I am not considering these submissions because they are a repeated and blatant disregard of the Tribunal’s order, and I find almost 30 pages of written submissions (including endnotes) is not a proportionate hearing to the issues in dispute. In addition, the respondent does not consent.

76For these reasons, I find the applicant has not met her onus in proving her entitlement to an award.

ORDER

77For the above-noted reasons, I order as follows:

The applicant’s impairments fall outside of the MIG.
The applicant has established entitlement to an ACB in the amount of $399.35 from October 26, 2022, to date. However, she is not entitled to payment of same because the benefit has not been incurred.
The applicant is entitled to the following OCF-18s recommended by Rehab First:

a) $1 ,446.37 for an occupational therapy in-home assessment submitted April 19, 2022.