Licence Appeal Tribunal File Number: 23-012983/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:
Lisanna Kowalczyk
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Sherilyn Pickering, Counsel
For the Respondent:
Theomarcus Giannou, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Lisanna Kowalczyk, the applicant, was involved in an automobile accident on May 19, 2019, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $2,047.14 per month from February 10, 2021, and ongoing?
ii. Is the applicant entitled to $2,942.76 for occupational therapy services proposed by Rehab First Inc in a treatment plan/OCF-18 (“plan”) dated August 12, 2022?
iii. Is the applicant entitled to $2,034.00 for psychological counselling proposed by Dr. Hamel in a plan dated May 24, 2022?
iv. Is the applicant entitled to $2,435.32 for virtual kinesiology services proposed by Rehab First Inc in a plan dated August 19, 2022?
v. Is the applicant entitled to $2,460.00 for psychotherapy by a registered nurse, proposed by Rehab First Inc in a plan dated August 23, 2022?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions, the applicant advised that she withdrew her claim for massage therapy and chiropractic services listed as issue 1 in the Hearing Order dated October 8, 2024.
RESULT
4The applicant is not entitled to ACBs.
5The applicant is entitled to the plans for occupational therapy services, psychological counselling, and virtual kinesiology services.
6The applicant is not entitled to the plan for psychotherapy by a registered nurse.
7The respondent is not liable to pay an award.
8The applicant is entitled to interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
ANALYSIS
Attendant care benefits
9Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the approved version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
The applicant is not entitled to ACBs
10The applicant has not met her onus of proving on a balance of probabilities that she is entitled to ACBs.
11Section 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 attendant care services (ACBs) provided by an aide or attendant. Section 3(7)(e) provides that an expense is incurred if the insured person received the goods and services to which the expense relates and is liable for that expense.
12Section 3(8) of the Schedule permits the Tribunal to deem an expense to have been incurred if it finds that the insurer unreasonably withheld or delayed the payment of the benefit in respect of the expense.
13The applicant relies on the recommendations for ACBs that were made by occupational therapists, Salihah Faroze and Kaitie Hickling after their occupational therapy (“OT”) assessment on January 25, 2021.
14The respondent submits that the applicant has not provided any evidence to support that she received any attendant care services whatsoever.
15The respondent takes the position that the applicant has not incurred any expenses for the services of an attendant care provider, professional, or non-professional.
16In reply, the applicant submits that the respondent’s position ignores the fact that she is seeking ACBs “to date and ongoing,” and therefore, even though they were not incurred in the past, this does not mean that they will not be incurred once ordered to be approved.
17Section 19 of the Schedule is clear. It deals with the respondent’s obligation to pay for all reasonable and necessary ACBs that are “incurred.” Since the Tribunal is a creature of statute, I find that it does not have jurisdiction to order the payment of ACBs that are not incurred, unless s. 3(8) applies.
18The applicant does not make submissions with respect to the application of s. 3(8) in this case, nor does she direct me to evidence that the respondent unreasonably withheld or delayed payment of ACBs. Accordingly, I find that the applicant is not entitled to ACBs pursuant to s. 3(8).
19For these reasons, I find that the applicant has not met her onus of proving on a balance of probabilities that she is entitled to ACBs.
20To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant is entitled to the plan for occupational therapy services
21The applicant has met her onus of proving on a balance of probabilities that the plan for occupational therapy services is reasonable and necessary.
22The plan was proposed by Alexander Popper, occupational therapist. The plan proposes six OT treatment sessions, documentation, research, consultation, and collaboration, travel time and mileage (if required), OCF-18 completion, review, approval, and certification, and collaboration and provision of clinical practices and activities. The goals of the plan are pain reduction, to address occupational performance issues to increase independence, safety, and enhance participation in daily activities, and to return to activities of normal living.
23The applicant refers to various clinical notes and records (“CNRs”) in submitting that she continues to suffer from the following accident-related impairments: headaches, light sensitivity, neck pain, shoulder pain, low back pain, anxiety, depression, poor motivation, difficulty making decisions, social withdrawal, personality changes, sleeping issues, panic attacks, feeling overwhelmed, irritability, memory and concentration impairments, and brain fog.
24The applicant relies on Ms. Faroze and Ms. Hickling’s OT assessment on January 25, 2021, which identified numerous occupational performance issues including pain management and impairments of sleep, body mechanics, energy conservation, personal care, housekeeping, employment, and caregiving. OT was recommended to address the applicant’s occupational performance impairments to promote a return to active living.
25The applicant also relies on the Kinesiology Therapy Progress Report dated September 14, 2022, prepared by Sufyan Shaikh, kinesiologist, and Alex Ducharme, occupational therapist, which indicates a recommendation for ongoing OT, which the applicant reported benefiting from.
26The applicant further relies on the Future Care Cost Report dated January 13, 2023, prepared by Marla Tennen, rehabilitation consultant and nurse. Based on the applicant’s injuries, somatic symptom disorder with predominant pain diagnosis, and her functional limitations, Ms. Tennen recommended OT to help the applicant with her work challenges, to facilitate additional treatment referrals, to liaise with the treatment team, to reinforce proper body modifications and proper body mechanics, to reinforce energy conservation and pacing techniques, to assist with her cognitive remediation strategies, to assess her need for assistive devices, and to provide her with necessary devices.
27The respondent points out that the goals of the disputed plan were to increase independence, safety, and to enhance participation in daily activities. The respondent relies on the s. 44 Insurer’s Examination (“IE”) report, dated October 5, 2022, that was prepared by Dr. R. Moolla, physician, which indicates:
i. The applicant reported independence with personal care and personal hygiene since the accident. She also advised that she was able to perform all her indoor household chores and activities, including laundry and grocery shopping.
ii. The applicant reported that she continued to drive and had no difficulty standing or walking, and she was able to lift her youngest child who weighed approximately thirty-five pounds.
iii. The applicant reported no change in her cognitive function.
iv. The applicant was able to use electronic devices, including her cell phone and computer, and was independent with managing her finances.
v. Prior to the accident, the applicant worked twenty-one hours per week over three days. She returned to working about twenty hours per week in June of 2022.
vi. Following an examination, Dr. Moolla did not find any evidence of musculoskeletal or neurological impairment because of the accident.
vii. Dr. Moolla concluded that the proposed plan was not reasonable or necessary because the applicant had resumed all her pre-accident activities of daily living, as well as her pre-accident employment at her usual hours and duties.
28The respondent submits that the applicant has demonstrated sufficient independence with performing her activities of daily living such that the goals of this plan have already been fulfilled and further sessions are not reasonable or necessary.
29In reply, the applicant submits:
i. Dr. Moolla did not provide details in his report as to what specific personal care and personal hygiene he had inquired of, nor whether the applicant was independent but still struggled with motivation, increased pain, balance difficulties while engaging in tasks, etc.
ii. Dr. Moolla made no inquiries of any difficulties the applicant had in doing her indoor household chores and activities, any coping techniques implemented with the assistance of the treatment team, or whether she had also done outdoor activities.
iii. Dr. Moolla used the same approach to the concerns regarding lifting her child, using electronic devices, and managing finances.
iv. Dr. Moolla did not ask questions to discern whether these tasks were done in modified manners, done at the same or reduced frequency, done accurately, or done with increased pain or limitations.
v. Presumably Dr. Moolla did not investigate these things as his assessment lasted just twenty-one minutes and therefore cannot compare to the wealth of knowledge obtained by assessors who spent longer amounts of time or treatment providers who saw her repeatedly.
vi. The experts and treatment providers who investigated these issues in greater detail found that the applicant was struggling with personal care, housekeeping, caregiving, and work.
vii. The applicant did not resume all her pre-accident activities of daily living and her pre-accident employment at her usual hours and duties. Her pain, anxiety, and dysthymia caused adverse changes in her roles as wife (causing a separation) and mother, decreased ability to do domestic tasks, diminished ability to work, and reduced socialization. She is less productive at work and at home. She had plans to resume full-time work when her youngest child started school, but due to the accident, although she attempted to do so, she was unable.
viii. Dr. Moolla’s indication that he did not find any evidence of musculoskeletal or neurological impairment is inaccurate. Dr. Moolla found tenderness of the cervical paraspinal area from C5 to C7 and upper bilateral trapezius tenderness.
30The applicant further submits that the details of Dr. Moolla’s testing are woefully inadequate, as are the tests completed, because he provides no details on which planes of motion were tested or the results on each, simply stating that range of motion was normal.
31The applicant contrasts Dr. Moolla’s testing to that of Dr. Jihad Abouali, orthopaedic surgeon, who conducted a s. 25 orthopaedic assessment of the applicant on August 10, 2021. Dr. Abouali found reduced range of motion in lateral flexion of the neck, pain at end range of flexion, extension, and rotation of the neck, reduced range of motion in the lumbar spine on hip flexion, pain on rotation of the lumbar spine, and reduced range of motion in the hip on flexion, abduction, and adduction. The applicant argues that Dr. Abouali’s examination was far more comprehensive, finding tenderness of the sacroiliac joints, tenderness of the L5 to S1, and the greater trochanteric area. Dr. Abouali also conducted straight leg tests, which indicated positive signs at 60 degrees on the left (indicating neurological pain) and 80 degrees on the right (indicating tightness of the muscles or pathology of the hip or sacroiliac joint).
32I have considered the reports relied on by the applicant, as well as Dr. Moolla’s report, which is relied upon by the respondent. I prefer the applicant’s reports. I find that Dr. Moolla’s report was not thorough, in that it was prepared after a short twenty-one-minute interview and physical assessment. Further, I place more weight on Ms. Faroze and Ms. Hickling’s assessment, as well as the report prepared by Marla Tennen, because I find that their conclusions corroborate one another and address the goals of pain reduction, managing occupational performance issues, and to return to activities of normal living.
33Further, I am persuaded by Sufyan Shaikh’s recommendation for OT because he is familiar with the applicant’s physical injuries as he has been providing kinesiology services to the applicant. I note that the report indicates that the applicant reported benefiting from her previous OT services.
34For these reasons, I find that the applicant has met her onus of demonstrating on a balance of probabilities that the plan for occupational therapy services is reasonable and necessary.
The applicant is entitled to the plan for psychological counselling
35The applicant has met her onus of proving on a balance of probabilities that the plan for psychological counselling is reasonable and necessary.
36The plan was proposed by Dr. Erik Hamel, physician. The plan proposes twelve one-hour sessions of psychological support, education, CBT, stress reduction, and adapting techniques. The goals of the plan are to address daily living issues to decrease anxiousness and stress, to improve concentration, mood, sleep and relationships, and to return to activities of normal living.
37The applicant refers to the following CNRs which address her accident-related psychological impairments:
i. On November 24, 2020, Dr. Paula Williams, general physician with a focus on pain management, assessed the applicant, and diagnosed her with, among other conditions, somatic symptom disorder with predominant pain, family stress, posttraumatic anxiety, driving phobia and mild dysthymia. Dr. Williams recommended psychological counselling for anxiety, driving phobia and dysthymia, and believed that the applicant needed to learn techniques to reduce pain-focusing and catastrophizing, and to process the severe emotional trauma of the accident.
ii. The applicant reported fatigue, low mood, frustration, anxiety, and low motivation to Ms. Faroze and Ms. Hickling during their assessment on January 25, 2021.
iii. On July 21, 2021, the applicant reported worsening anxiety, feeling overwhelmed, panic attacks, neglecting the house, sleep issues, and irritability to Dr. Hamel.
iv. On December 3, 2021, the applicant underwent a s. 25 psychiatric assessment for eighty-five minutes with Dr. Emily Gavett-Liu, psychiatrist, who reviewed medical documentation, interviewed the applicant and conducted psychometric testing. The applicant was diagnosed with somatic symptom disorder, major depressive disorder, panic disorder, and generalized anxiety disorder. Dr. Gavett-Liu recommended continued psychotherapy treatment and a referral for psychiatric support.
v. In their report dated September 14, 2022, Sufyan Shaikh and Alex Ducharme recommended that the applicant continue with counseling because she reported benefiting from the treatment.
vi. In her report dated January 13, 2023, Marla Tennen recommends cognitive behavioural therapy, acceptance techniques, mindfulness, pain management counseling, behavioural activation, and desensitization/exposure therapy.
vii. On January 24 and February 8, 2023, Dr. Philip Miller, psychologist, and Allan Walton, psychotherapist, conducted a psychovocational assessment based on a review of medical documentation, interviews, and psychometric testing. The applicant was diagnosed with adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder with predominant pain, mild to moderate, as well as features of a specified phobia related to motor vehicle travel and features of PTSD. They recommended psychotherapy.
38The respondent does not make submissions on the reasonableness and necessity of the proposed plan.
39The respondent submits that this plan was not properly submitted. It refers to a letter dated June 6, 2022 to the applicant indicating that it received the plan via Canada Post/Fax. The letter goes on to state that, effective February 1, 2010, the use of HCAI became mandatory by way of Regulation proclaimed by the Superintendent of Insurance for Ontario, and that all plans and invoices must be submitted via the HCAI system. The respondent further advised that it was unable to respond to or consider funding for the plan until resubmitted on the HCAI system.
40The respondent relies on the following:
i. Section 66 of the Schedule, which provides that a plan shall be in a form approved by the Chief Executive Officer.
ii. Section 64(7)1 of the Schedule, which states that documents listed in s. 66 shall be delivered to an insurer only in a manner specified in the Guideline.
iii. According to the Financial Services Commission of Ontario Health Claims for Auto Insurance Guideline – Superintendent’s Guideline No 02/18 (“Guideline”), plans must be sent to the Central Processing Agency via HCAI, and not directly to the insurer. It also states that if a plan is not sent to HCAI it is deemed not to have been received and does not require a response from the insurer.
41The respondent submits that it is not aware of the applicant resubmitting this plan in accordance with the Guideline and as such it remains not payable.
42In reply, the applicant submits that the Guideline is specifically limited to participating facilities. The applicant further submits that Dr. Hamel is a family physician, and he is not a “service provider,” a “licensed provider,” or a “participating facility,” as defined under the Guideline. Accordingly, the applicant argues that the plan could be submitted outside of HCAI, and payment could be made to the applicant to reimburse Dr. Hamel.
43I find that the Guideline sets out that:
i. It applies only to transactions between “Participating Facilities” and a “Participating Insurer.”
ii. The main office and each specified branch office of a health care facility registered with HCAI is a Participating Facility.
iii. Each rostered health professional operating on behalf of the main office or a specified branch office is a Participating Facility.
iv. The requirement that a plan be submitted through HCAI only applies if payment of the invoice is claimed against a Participating Insurer with respect to a transaction with a Participating Facility, or the invoice is submitted by a Participating Facility.
44I find that the respondent has not directed me to evidence that Dr. Hamel is a Participating Facility. Accordingly, I am not satisfied on a balance of probabilities that Dr. Hamel was required to submit the plan through HCAI.
45I also find there is extensive consistent evidence of the applicant’s accident-related psychological impairments in the two years leading up to the disputed plan and into 2023. I am persuaded of the reasonableness and necessity of the plan based on the diagnoses and recommendations of various assessors and the proposal of the plan by her family physician, Dr. Hamel. I note that the recommendations that were made for psychological services were made to address, among other things, the applicant’s stress and anxiety, which are two of the goals of the plan. I am further persuaded that the plan is reasonable because Sufyan Shaikh and Alex Ducharme, the applicant’s treatment providers, recommended that the applicant continue with counseling because she reported benefiting from the treatment.
46For these reasons, I find that the applicant has met her onus of demonstrating on a balance of probabilities that the plan for psychological counselling is reasonable and necessary.
The applicant is entitled to the plan for virtual kinesiology services
47The applicant has met her onus of proving on a balance of probabilities that the plan for virtual kinesiology services is reasonable and necessary.
48The plan was proposed by Sufyan Shaikh. The plan proposes OCF-18 completion, review, approval, and certification, collaboration and provision of clinical practices and activities, provider travel time (if required), ten kinesiology sessions, including sessions with the applicant, as well as associated research, planning, consultation with other providers, and documentation/progress report, and home exercise equipment (yoga ball, resistance bands, and weights). The goals of the plan are pain reduction, increased range of motion, increase in strength, to educate on pain management techniques, to improve mobility, to increase overall conditioning, to return to activities of normal living, to improve functional tolerance (i.e., standing, walking, lifting, etc.) for gradual re-engagement in pre-accident daily activities (e.g., light household activities, leisure, work, etc.), and to return to physical activity (i.e., yoga and jogging).
49The applicant submits that she has been undergoing kinesiology sessions, and further treatment was recommended to address her reduced functional tolerances, i.e. walking, standing, lifting, carrying, etc. The proposed plan notes that the applicant has reported improvements with her headaches, decreased neck pain, improved muscular strength and endurance.
50The applicant relies on the following recommendations for kinesiology:
i. Based on the assessment on November 24, 2020, Dr. Williams recommended support for a gentle exercise program and exercises under the guidance of a professional.
ii. Based on the assessment on August 10, 2021, Dr. Abouali recommended a focused rehabilitation strengthening program, including core stabilizing exercises for the cervical and lumbar spine, and hip activities.
iii. Based on the assessment on December 12, 2022, Marla Tennen recommended ongoing kinesiology sessions on a weekly basis.
51The applicant further submits that, despite the denial, this plan was incurred, and she refers to Sufyan Shaikh and Alex Ducharme’s progress report dated September 14, 2022. With respect to this report, the applicant points out:
i. Each session included pain management education and treatment, range of motion exercises, stretching, muscle activation, core exercises, and whole-body strength and condition exercises.
ii. The exercises progressed with an increase in the number of sets and repetitions per set of chin tucks, bridges, hip hinges, squats, planks, and side-planks, as well as the addition of supine chick tuck plus flexion, push ups from the counter, kettlebell row, clams, and Theragun application.
iii. Progress was being made towards the overall goals.
52The respondent relies on the following findings as set out in Dr. Moolla’s report dated October 5, 2022:
i. The applicant reported independence with personal care and personal hygiene, the ability to perform indoor household tasks including laundry, and grocery shopping.
ii. The applicant reported being able to drive, having no difficulty standing or walking, having the ability to lift her child who weighed thirty-five pounds, and she reported no change in her cognitive function.
iii. Dr. Moolla did not find any evidence of musculoskeletal or neurological impairment because of the accident.
iv. Dr. Moolla concluded that the applicant could perform these exercises independently without supervision, and that the proposed exercise equipment was not warranted to treat her accident-related injuries.
53I place little weight on Dr. Moolla’s opinion with respect to the disputed plan for the following reasons. As indicated above, I find that Dr. Moolla’s report was not thorough, in that it was prepared after a short twenty-one-minute interview and physical assessment. Further, as pointed out by the applicant in reply, Dr. Moolla did not provide an analysis of the applicant’s knowledge of the exercises, her ability to engage in exercises, or her ability to self-motivate, given her psychological impairments. Further, Dr. Moolla was not provided with Sufyan Shaikh and Alex Ducharme’s progress report prior to forming his opinions.
54Based on the evidence before me, I am satisfied that the proposed plan is reasonable and necessary. The treatment has been recommended by various assessors, as well as the applicant’s treatment providers, Sufyan Shaikh and Alex Ducharme. The progress report outlines the various exercises that the applicant has been performing with the assistance of her treatment providers, which I find are aimed at achieving the goals in the proposed plan. Further, the plan indicates that the applicant has been progressing because of the treatment.
55For these reasons, I find that the applicant has met her onus of demonstrating on a balance of probabilities that the plan for virtual kinesiology services is reasonable and necessary.
The applicant is not entitled to the plan for psychotherapy by a registered nurse
56The applicant has not met her onus of proving on a balance of probabilities that the plan for psychotherapy by a registered nurse is reasonable and necessary.
57The plan was proposed by Alexander Popper. The plan proposes twelve 1.5-hour sessions of registered nurse treatment (psychological support, education, CBT, stress reduction, etc.), and initial assessments. The goals of the plan are to address daily living issues, anxiety, distress, to improve concentration, mood, sleep and relationships, and to return to activities of normal living.
58The applicant relies on the same evidence as outlined above, with respect to plan for psychological counselling.
59I find that the goals, as well as the treatment services in this plan, are essentially the same as the goals and the services in the plan for psychological services, above, that I found to be reasonable and necessary. Accordingly, I find that this disputed plan is redundant.
60For these reasons, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that the plan for psychotherapy by a registered nurse is reasonable and necessary.
Interest
61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
62The applicant seeks 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.
63The applicant submits that a lump sum award ought to be ordered because the respondent has unreasonably withheld the payment of the benefits. The applicant refers to the Financial Services Commission of Ontario (“FSCO”) decision of Lynda Federico v. State Farm Mutual Automobile Insurance Company, 2020 ONFSCDRS 8 in arguing that:
i. The respondent must act fairly and reasonably, including approaching the claim with an open mind, treating the insured person in a fair manner and not as a potential adversary, consider all available information, give appropriate weight to all information in a fair and even-handed manner, and re-assess the validity of the claim as new information is received.
ii. The respondent is required to make every effort to reconsider the applicant’s claim.
iii. The respondent must satisfy itself that its position is and remains correct.
iv. The respondent must make every effort to evaluate the merits of the applicant’s position before proceeding to a hearing.
64The applicant further submits that the respondent failed to provide due consideration to the evidence cited by the applicant in this hearing regarding her ongoing treatment needs.
65Although I am not bound by decisions of the FSCO, I agree with the reasoning in this decision. However, I find that the applicant’s submissions point to principles to be considered when determining whether an award should be granted, without demonstrating specific behaviour on the part of the respondent that violates these principles.
66It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I find that the applicant has not directed me to conduct on the part of the respondent that meets this standard.
67For these reasons, I find that there is no basis for ordering an award under Reg. 664.
ORDER
68For the above reasons, I find:
i. The applicant is not entitled to ACBs.
ii. The applicant is entitled to the plans for occupational therapy services, psychological counselling, and virtual kinesiology services.
iii. The applicant is not entitled to the plan for psychotherapy by a registered nurse.
iv. The respondent is not liable to pay an award.
v. The applicant is entitled to interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Released: December 22, 2025
Laura Goulet
Adjudicator