Kroscenova v. Jevco Insurance Company, 2025 CanLII 135599

Citation: Kroscenova v. Jevco Insurance Company, 2025 ONLAT 24-002791/AABS

Licence Appeal Tribunal File Number: 24-002791/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:

Denisa Kroscenova

Applicant

and

Jevco Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Lucas Lisitsky, Counsel

For the Respondent: Robbie Brar, Counsel

HEARD: By way of written submissions

OVERVIEW

1Denisa Kroscenova (“the Applicant”) was involved in an automobile accident on July 10, 2020, and sought benefits from Jevco Insurance Company Inc. (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the Applicant entitled to non-earner benefits (“NEBs”) of $185.00 per week for the period from August 24, 2021 to July 9, 2023?
2. Is the Applicant entitled to a medical benefit in the amount of $723.71 ($2,668.79 less $1,945.08 approved) for psychological services proposed by Humber Civic Care Centre Inc. in an OCF-18/treatment plan (“plan”) dated June 1, 2021?
3. Is the Applicant entitled to a medical benefit in the amount of $3,613.13 ($5,844.13 less $2,230.00 approved) for occupational therapy services proposed by Ontario Independent Assessment Centre Inc. in a plan dated August 23, 2022?
4. Is the Applicant entitled to $1,800.00 for a functional abilities assessment proposed by Ontario Independent Assessment Centre Inc. in a plan dated May 26, 2022?
5. Is the Applicant entitled to $2,300.00 for an orthopaedic assessment proposed by Ontario Independent Assessment Centre Inc. in a plan dated June 9, 2022?
6. Is the Applicant entitled to $1,900.00 for a functional cognitive assessment proposed by Ontario Independent Assessment Centre Inc. in a plan dated June 9, 2022?
7. Is the Applicant entitled to $2,000.00 for a biopsychosocial assessment proposed by Ontario Independent Assessment Centre Inc. in a plan dated July 26, 2022?
8. Is the Applicant entitled to $2,350.00 for a chronic pain assessment proposed by Ontario Independent Assessment Centre Inc. in a plan dated September 19, 2022?
9. Is the Applicant entitled to $2,629.50 for a chronic pain assessment proposed by Ontario Independent Assessment Centre Inc. in a plan dated January 31, 2024?
10. Is the Applicant entitled to $2,350.00 for a neurological assessment proposed by Ontario Independent Assessment Centre Inc. in a plan dated November 30, 2022?
11. Is the Applicant entitled to $2,493.90 for a gym membership proposed by Ontario Independent Assessment Centre Inc. in a plan dated November 30, 2022?
12. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
13. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Applicant is entitled to NEBs for the period claimed.

4The Applicant is not entitled to the unapproved balance of the psychological treatment plan, dated June 1, 2021; and the unapproved balance of the OT plan, dated August 23, 2022.

5The Applicant is not entitled to the functional ability evaluation plan, dated May 26, 2022; the orthopaedic assessment plan, dated June 9, 2022; the functional cognitive assessment plan, dated June 9, 2022; the chronic pain assessment, dated September 19, 2022; and the neurological assessment plan, dated November 30, 2022.

6The Applicant is entitled to the biopsychosocial assessment plan, dated July 26, 2022; the chronic pain assessment plan, dated January 31, 2024; and the Applicant is entitled to the gym membership plan, dated November 30, 2022.

7The Applicant is entitled to interest pursuant to section 51 of the Schedule, with respect to her claims for NEBs; the biopsychosocial assessment plan, dated July 26, 2022; the chronic pain assessment plan, dated January 31, 2024; and the gym membership plan, dated November 30, 2022.

8No award is payable.

BACKGROUND

9The Applicant was a passenger in a vehicle which was struck on the passenger side by another vehicle travelling in the same direction on a major highway. The driver, the Applicant’s boyfriend, maintained control of the vehicle during the incident and pulled it over to the side of the road following the side-to-side collision. The Applicant was assessed by paramedics at the side of the highway but was not transported to hospital. She met with her family physician, Dr. M. Simonik, a few days later with complaints of back pain, right hand pain, and nightmares.

10Her current physical complaints include daily migraine headaches, neck, back, and right arm pain. Her current psychological complaints include non-restorative sleep due to back pain and nightmares, panic attacks, passenger anxiety, irritability, reduced cognition, and fatigue.

ANALYSIS

11The onus lies with the Applicant to demonstrate entitlement to the benefits claimed. For NEBs, she must demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident. For the treatment plans in dispute, she must demonstrate that they are reasonable and necessary as a result of the accident.

Non-Earner Benefits (“NEBs”)

12I find that the Applicant has demonstrated that she suffers a complete inability to carry on a normal life as a result of the accident.

13Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (“Heath”), she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

14I find that the Applicant’s fear of leaving her residence due to panic attacks indicates a complete inability to carry on a normal life. According to the IE report by Dr. R. Day, psychologist, dated April 13, 2022, the Applicant has become fearful of driving in vehicles, particularly when her boyfriend is driving as he was the driver when she was involved in the accident. She has developed panic attacks and is now fearful of going outside due to fear of panic attacks. Dr. Day diagnosed the Applicant with Major Depressive Disorder and features of Post-Traumatic Stress Disorder (“PTSD”).

15I find that the Applicant’s reduction in her assistance with her immobile mother and household chores further support that she suffers a complete inability to carry on a normal life. The information in the occupational therapist (“OT”) report by D. Isakow-Weiss, dated July 27, 2022, indicates that the Applicant is no longer cooking or cleaning, and that her brother and sister-in-law have assumed the role of caregiver to the Applicant’s mother. The Applicant reported an inability to do house chores, bend and lift heavy items, and an inability to engage in prolonged sitting, standing, and walking. She also reports to several assessors that she is more irritable with her boyfriend and family, and isolates herself due to her fear of having panic attacks. The OT report includes a short collateral interview with the Applicant’s sister-in-law in which the sister-in-law corroborates the Applicant’s claims. The sister-in-law reported that since the accident she is doing all the cooking and cleaning in the residence and that the Applicant will do light snacks for herself, but is moody, in bed most of the time, smoking more, and staying up late.

16The Applicant also suffers from minor physical impairments, further contributing to her inability to carry on a normal life as a result of the accident. OT Isakow-Weiss documented that the Applicant has mildly restricted range of motion (“ROM”) in her neck and bilateral shoulders, and moderately restricted ROM in her mid back. While she remains generally independent with her self-care, she is unable to complete other tasks such as meal preparation, laundry, and bed care.

17The assessment and report by Dr. K. Papazoglou, psychologist, dated May 19, 2022 also demonstrates that the Applicant suffers from a complete inability to carry on a normal life. Dr. Papazoglou also documented the Applicant’s reports of panic attacks and how she fears leaving her house and having a panic attack in public. In this assessment, the Applicant’s psychometric test scores indicated severe depression and anxiety, and a high risk for chronic pain. This is consistent with the testing done by Dr. Day, who opined that the Applicant’s score indicated the presence of dysfunctional thoughts in response to her pain that likely served to accentuate and perpetuate her pain experience.

18Overall, the Applicant’s psychological dysfunction, combined with her minor physical impairments, precludes her from substantially engaging in the activities that she engaged in prior to the accident such as caring for her disabled mother and going out into the community. Accordingly, I find on a balance of probabilities that she is entitled to NEBs for the period from August 24, 2021 to July 9, 2023.

Psychological treatment plan, dated June 1, 2021

19The Applicant has not demonstrated that she is entitled to the unapproved balance of the psychological treatment plan, dated June 1, 2021.

20The Applicant tendered no submissions on the issue and never directed me to any evidence to support her claim for the unapproved portion of this psychological treatment plan. Accordingly, the Applicant has not met her onus to demonstrate entitlement to this plan.

Occupational therapy plan, dated August 25, 2022

21The Applicant has not demonstrated that she is entitled to the unapproved balance of the psychological treatment plan, dated August 25, 2022.

22The Applicant did not address the substance of this plan, other than to submit that she relies on her family physician’s CNRs and the reports of independent assessors and that they show that she is suffering from significant limitations. The Respondent relies on the recommendation in the OT IE completed by D. Adams, OT, dated October 12, 2022.

23I find that the Applicant has not met her onus to demonstrate that the unapproved amount of this plan is reasonable and necessary. At issue here is whether 12 treatment sessions are reasonable and necessary, versus the 4 sessions approved by the Respondent. Aside from the treatment plan itself, there is nothing in the Applicant’s submissions or evidence indicating that 12 sessions are required to provide the assistive devices, related education on the devices, and other ancillary services, Accordingly, I find on a balance of probabilities that the Applicant had not demonstrated that the unapproved balance of this plan is reasonable and necessary as a result of the accident.

The functional ability, orthopaedic, functional cognitive, and neurological assessment plans dated May 26, June 9, and June 9, 2022, respectively

24I find that the Applicant has not demonstrated that the functional ability, orthopaedic, cognitive, and neurological assessments are reasonable and necessary as a result of the accident.

25I find insufficient evidence indicating that functional ability, orthopaedic, and functional cognitive assessments are reasonable and necessary as a result of the accident. The Applicant was unemployed at the time of the accident and remains so thereafter. There is no need to assess her physical function in addition to providing rehabilitative treatment if there is no indication that her minor physical impairments are the primary basis precluding her from completing her tasks. In this case, it is psychological impairments that are the primary factor contributing to the Applicant’s impaired ability to complete tasks and carry on a normal life.

26The Applicant has not sustained an orthopaedic injury that requires further investigation. The applicant sustained, at most, uncomplicated soft-tissue injuries. Her prolonged recovery appears to be mostly related to her psychological impairments which distort her view of her physical impairments and cause her to be significantly pain focused. As the Applicant’s pain is predominantly psychological, it follows that it would not be reasonable and necessary to assess her from an orthopaedic perspective.

27The Applicant has not demonstrated any cognitive impairments as a result of the accident that would require an assessment. The Applicant has not directed me to any evidence indicating an accident-related cognitive impairment or symptoms thereof. In fact, Dr. Papazoglou, psychologist, in the May 19, 2022 psychological assessment report, expressly stated that the Applicant did not appear to have any significant cognitive impairment.

28The Applicant has not sustained a neurological injury which warrants further investigation. It is evident that the Applicant experiences headaches following the accident, but they are primarily cervicogenic in nature and possibly related to medication overuse. Dr. J. Desai, neurologist, in the April 13, 2022 insurer’s examination (“IE”) report identified the Applicant’s headaches as primarily cervicogenic and possibly related to medication overuse and obstructive sleep apnea. This is similar to the findings of Dr. Heitzner, physiatrist, in the April 13, 2022 IE report, which noted a normal neurological examination. Overall, the comments from IE assessors Dr. Desai and Dr. Heitzner are consistent with the information in Dr. Simonik’s CNRs. There are no ongoing complaints of a neurological nature in Dr. Simonik’s CNRs that would indicate a need to assess the Applicant’s neurological health or function.

29Accordingly, I find on a balance of probabilities that the Applicant has not demonstrated that the functional ability, orthopaedic, cognitive, and neurological assessments are reasonable and necessary as a result of the accident.

The biopsychosocial assessment plan, dated July 26, 2022

30I find that the Applicant has demonstrated that the biopsychosocial assessment plan, dated July 26, 2022, is reasonable and necessary as a result of the accident.

31This assessment seeks to identify the Applicant’s skills and ability to use her own resources and those of the community to resolve problems. The Assessment is designed to help the Applicant emotionally and help her reintegrate into and strengthen her family, social, and community networks. The Applicant submits that this is reasonable and necessary because she has been socially isolating herself and has impaired functional abilities. The Respondent never addressed this plan directly.

32I find on a balance of probabilities that the assessment is reasonable and necessary to reintegrate the Applicant into her family and the community. As outlined above, the Applicant suffers from panic attacks and isolates herself to avoid having the panic attacks occur in public. She has also limited her participation in her household activities, such as heavy housekeeping and preparing meals for her and her mother. It is reasonable and necessary to assess the Applicant’s ability to use resources in her community to help her return to her normal life, including leaving her home and caring for her disabled mother.

The chronic pain assessment plans dated September 19, 2022, and January 31, 2024

33I find that the Applicant has demonstrated that a chronic pain assessment plan is reasonable and necessary as a result of the accident. However, I conclude that only one of the plans are reasonable and necessary as it unreasonable to engage in two separate chronic pain assessments.

34In this case, a chronic pain assessment seeks to establish a current diagnosis, the extent of the injuries, identify any physical and social limitations, and establish any diagnostic or treatment recommendations.

35By all accounts the Applicant remains pain focused, despite sustaining uncomplicated soft tissue injuries. This is noted in the IE report by Dr. S. M-W Tu, physician, dated January 13, 2023. Dr. Tu reported that the Applicant presented as pain focused and pain limited. In another IE report, Dr. Tu continued to document the Applicant’s pain focused behaviour, noting that inconsistent and inorganic behaviour was apparent throughout the assessment. Dr. Tu noted the Applicant had to be re-directed numerous times to answer questions asked rather than discuss her pain and psychological symptoms. To me, this ongoing pain focused behaviour indicates that the Applicant may suffer from a chronic pain condition which requires further examination.

36However, the Applicant has not incurred the cost of a chronic pain assessment plan. Incurring two separate chronic pain assessments is not reasonable, nor necessary. Accordingly, I conclude that only one assessment – the most recent one proposed – is reasonable and necessary as a result of the accident. Thus, I find on a balance of probabilities that the chronic pain assessment plan, dated January 31, 2024, is reasonable and necessary as a result of the accident.

Gym membership plan, dated November 30, 2022

37I find that the Applicant has demonstrated that the gym membership plan, dated November 30, 2022 is reasonable and necessary as a result of the accident.

38This plan seeks funding for a one-year gym membership and 22 personal training sessions. The Applicant submits that her physical impairments, weight gain issues, and anxiety symptoms all indicate that the plan is reasonable and necessary as a result of the accident to facilitate her recovery on a physical and psychological level. The Respondent relies on the IE report of Dr. Tu, physician, dated January 13, 2023. Dr. Tu concluded that the plan was not reasonable and necessary because further facility-based treatment is not supported for uncomplicated soft-tissue injuries.

39I find that the gym membership and personal training sessions are reasonable and necessary as a result of the accident because a gym membership and personal training services will help the Applicant with her recovery from both a physical and psychological perspective. While the Applicant’s primary impairments are related to psychological injuries, she nevertheless has residual physical issues that would benefit from ongoing exercise. Additionally, the Applicant would benefit from the guidance and encouragement of a personal trainer to counter her psychological impairments, primarily her fear of leaving her house due to panic attacks.

40The Applicant’s minor physical impairments were identified by several assessors. This includes Dr. Tu, physician, who in the IE report, dated January 13, 2023 noted that the Applicant was pain focused and exhibited significant guarding and self-limitations. Dr. Tu recognized the Applicant’s ongoing pain and concluded that continued use of Tylenol 3 was reasonable and necessary as a result of the accident. Similarly, Dr. Desai, in the April 13, 2022 multidisciplinary IE report, recommended that the Applicant engage in physiotherapy and lose weight, amongst other things, to help control her headaches. In the same multidisciplinary report, Dr. Heitzner observed that the Applicant had very little ongoing musculoskeletal impairments but a high perception of disability and pain behaviour.

41The Respondent has failed to consider the psychological benefit that a gym membership and personal training sessions would have on the Applicant. Dr. Tu concluded that a gym membership and personal training was not reasonable and necessary because the Applicant’s soft-tissue injuries ought to have resolved by now, and the applicant would not see much benefit from ongoing facility-based treatment. In a similar vein, Dr. Heitzner concluded that the Applicant doesn’t require any further facility-based treatment for her soft-tissue injuries.

42To me, the reasons provided by Dr. Tu and Dr. Heitzner are inconsistent with the Applicant’s overall presentation and fail to account for the impact the Applicant’s psychological impairments has on her ability to engage in self-directed exercises. Dr. Day, in the April 13, 2022 report, noted the Applicant’s post-traumatic symptoms and panic attacks interfere with her ability to resume some of her former activities. Likewise, Dr. Papazoglou, in the May 19, 2022 report, also noted that the Applicant’s panic attacks have been a challenge in her ability to attend rehabilitation treatment. In my view, the engagement of a personal trainer and a gym membership would provide the Applicant with motivation to engage in exercise and help her move to a self-directed exercise program, as recommended by the various assessors, and engage in exercise at times that are most convenient to her and times where she would be less likely to suffer from a panic attack.

43Accordingly, I find on a balance of probabilities that the plan for a gym membership and personal training is reasonable and necessary as a result of the accident.

Interest

44Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule.

45Having found that the Applicant is entitled to NEBs; the biopsychosocial plan, dated July 26, 2022; the chronic pain assessment plan, dated January 31, 2024; and the gym membership and personal training plan, dated November 30, 2022; it follows that she is also entitled to interest on any overdue payment relating to those benefits.

Award

46The Applicant sought an award under section 10 of Regulation. 664. Under section 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.

47I find that the Applicant has not demonstrated that the Respondent unreasonably withheld or delayed the payment of benefits. The crux of the Applicant’s argument is that the Respondent mishandled her claim by denying the plans in dispute, despite the medical evidence on file. At no point has the Applicant identified any specific actions or inactions by the Respondent that could be characterized as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The Respondent is not held to a standard of perfection and is permitted to err when adjusting an insured person claim. Accordingly, I find no award payable.

CONCLUSION AND ORDER

48The Applicant is entitled to NEBs for the period claimed.

49The Applicant is not entitled to the unapproved balance of the psychological treatment plan, dated June 1, 2021; and the unapproved balance of the OT plan, dated August 23, 2022.

50The Applicant is not entitled to the functional ability evaluation plan, dated May 26, 2022; the orthopaedic assessment plan, dated June 9, 2022; the functional cognitive assessment plan, dated June 9, 2022; the chronic pain assessment, dated September 19, 2022; and the neurological assessment plan, dated November 30, 2022.

51The Applicant is entitled to the biopsychosocial assessment plan, dated July 26, 2022; the chronic pain assessment plan, dated January 31, 2024; and the Applicant is entitled to the gym membership plan, dated November 30, 2022.

52The Applicant is entitled to interest pursuant to section 51 of the Schedule, with respect to her claims for NEBs; the biopsychosocial assessment plan, dated July 26, 2022; the chronic pain assessment plan, dated January 31, 2024; and the gym membership plan, dated November 30, 2022.

53No award is payable.