Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-002840/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:
Stacey MacDonald
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Sherilyn Pickering, Counsel
For the Respondent: Julianne Brimfield, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Stacey MacDonald, the applicant, was involved in an automobile accident on March 4, 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:
i. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $277.13 per month from May 11, 2021 to date and ongoing?
ii. Is the applicant entitled to $2,045.38 for occupational therapy services, proposed by Rehab First Inc. in a treatment plan/OCF-18 (“treatment plan”) dated March 12, 2021?
iii. Is the applicant entitled to $2,274.02 for physiotherapy services, proposed by Barrie Core Wellness Inc. in a treatment plan dated April 23, 2021?
iv. Is the applicant entitled to $2,654.03 for occupational therapy services, proposed by Rehab First Inc. in a treatment plan dated May 7, 2021?
v. Is the applicant entitled to $2,789.03 for physiotherapy services, proposed by Barrie Core Wellness Inc. in a treatment plan dated May 14, 2021?
vi. Is the applicant entitled to $1,125.00 for optometry services, proposed by Foveal Corporation in a treatment plan dated June 9, 2022?
vii. Is the applicant entitled to $1,679.75 for occupational therapy services, proposed by Skill Builders Physiotherapy and Rehab Clinic in a treatment plan dated January 13, 2023?
viii. Is the applicant entitled to $2,059.02 for physiotherapy services, proposed by Barrie Core Wellness Inc. in a treatment plan dated June 22, 2022?
ix. Is the applicant entitled to $3,752.50 for social work services, proposed by Social Work Consulting Inc. in a treatment plan dated July 19, 2023?
x. Is the applicant entitled to the assessments proposed by East York Physiotherapy and Orthopaedic Rehab Clinic, as follows:
a) $2,200.00 for a Neurological Assessment, in a treatment plan dated June 2, 2022; and
b) $2,200.00 for a Psychological Assessment, in a treatment plan dated June 2, 2022?
xi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xii. Is the applicant entitled to interest on any overdue payment of benefits?
3In her written hearing submissions, the applicant withdrew issue number 9 on the Case Conference Summary and Report (“CCRO”) dated November 16, 2023, for case management services in the amount of $5,482.00, proposed by FunctionAbility Rehabilitation Services in a plan dated July 21, 2023.
RESULT
4The applicant is not entitled to ACB.
5I find that the applicant has not demonstrated that the proposed plans are reasonable and necessary for her accident-related injuries. As a result, the plans in dispute are not payable.
6As no benefits are owing, no interest or an award is payable.
ANALYSIS
The applicant is not entitled to attendant care benefits as they have not been incurred
7The applicant claims that she is entitled to ACB of $277.13 per month from May 11, 2021 to date and ongoing for her functional impairments, including falls due to her balance issues.
8Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. The monthly amount of attendant care that an applicant is entitled to is determined in accordance with a form called an Assessment of Attendant Care Needs (“Form-1”).
9Section 3(7)(e)(i) and (ii) of the Schedule establish that an insured person has incurred an expense if the person has received the goods or services to which the expense relates, paid the expense, promised to pay the expense, or is otherwise legally obligated to pay the expense. Section 3(7)(e)(iii) of the Schedule sets out two categories of attendant care providers: professional service providers, who provide services in the course of the employment, occupation, or profession in which they would ordinarily be engaged but for the accident; and non-professional service providers who have sustained an economic loss as a result of providing goods or services to the injured person.
10The onus is on the applicant to prove that she required the care of an aide or attendant and that she incurred the expense of hiring one. Here, the applicant claims entitlement to an ACB based on a Form-1 dated May 11, 2021, completed by Taylor Peart, occupational therapist of Rehab First, and a case management initial report dated December 12, 2022, by Naro Hussaini, social worker.
11The respondent submits that the applicant’s claim for ACB should be dismissed, as she has not adduced any evidence indicating that attendant care services have been incurred. I find that the evidence does not support that the applicant has incurred the services as s et out in s.37(e) of the Schedule.
12I find on a balance of probabilities that the applicant is not entitled to ACB, as she has not submitted any evidence that attendant care services were incurred, pursuant to the requirement established in s.19 of the Schedule.
13To receive payment for a treatment plan (OCF-18) under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.
14Section 16(1) of the Schedule states that rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person that are reasonable and necessary to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into their family, society and the labour market. Section 16(3)(i) of the Schedule states that these activities include home modifications and home devices that accommodate the needs of the insured person.
The applicant is not entitled to the in-home assessment
15I find that the applicant has not demonstrated that the plan in dispute for an in- home assessment is reasonable and necessary.
16The applicant submits that the plan dated March 12, 2021, completed by Lauren Schwalm, occupational therapist of Rehab First Inc., in the amount of $2,045.38 for an in-home assessment is reasonable and necessary to identify her occupational performance and participation issues. The plan consists of an assessment of the applicant’s home, provider travel time and OCF-18 completion to assess the applicant’s level of function, safety and independence. The goals of the plan contradict other medical evidence that the applicant returned to work within a week after the accident. The applicant submits that despite the respondent’s denial of this benefit, it has been incurred.
17The applicant relies on the plan in dispute dated March 12, 2021 and the occupational therapy in-home report dated May 7, 2021 by Taylor Peart, occupational therapist in recommending attendant care and assistive devices for completing her personal care, housekeeping and caregiver tasks. Ms. Peart conducted the assessment virtually and by telephone, and she relied exclusively on the applicant’s self-reports regarding her pre-accident and post-accident functional abilities.
18The respondent submits that the plan for an in-home assessment was denied by letter dated March 16, 2021, because the applicant’s injuries were within the Minor Injury Guideline (“MIG”). The respondent further submits that the plan was submitted before a Treatment Confirmation Form (OCF-23) for goods and services under the MIG. The respondent further relies on an Insurer’s Examination (“IE”) report dated May 1, 2023, by Dr. Abdul Wahab Khan, physiatrist, which indicates that the applicant has no objective accident-related physical impairments, and she is independent for all her personal care, and housekeeping tasks. Further, the respondent submits that the evidence suggests that the applicant returned to work, and her housekeeping and caregiver tasks after the accident, and I agree. The applicant reported to IE assessor, Cindi Goodfield, psychologist, in report dated May 1, 2023, that she didn’t take any time off work, and she returned to her housekeeping and caregiver tasks after the accident.
19I find there is insufficient evidence in support of the plan dated March 12, 2021, for an in-home assessment because the applicant has reported that she has returned to her pre-accident activities. Therefore, I find on a balance of probabilities that the applicant is not entitled to the amount of $2,045.38 for an in-home assessment.
The applicant is not entitled to occupational therapy sessions and assistive devices
20I find that the applicant has not demonstrated that the plan for occupational therapy sessions and assistive devices is reasonable and necessary as a result of her accident-related impairments.
21The applicant seeks payment for a plan dated May 7, 2021, completed by Carol Smith, occupational therapist of Rehab First Inc., in the amount of $2,654.03 for 18 occupational therapy sessions and various assistive devices to facilitate safe and functional participation in activities of daily living. Ms. Smith indicates in the disputed plan that the applicant’s pre-existing conditions which include temporomandibular joint (“TMJ”) dysfunction, pineal gland cyst, thoracic vertebrae fractures, Grave’s disease, anxiety and left knee meniscus tear are not contributory to the applicant’s post-accident symptoms.
22The respondent submits that the plan for occupational therapy sessions and assistive devices was denied by letter dated May 18, 2021, because the applicant’s injuries were within the MIG. The respondent relies on the IE report dated May 1, 2023, by Dr. Khan who found the applicant’s musculoskeletal injuries are within the MIG, and she is independent for all her personal care, activities of daily living and housekeeping tasks.
23I find on a balance of probabilities that the applicant has not met the burden of proof that the plan dated May 7, 2021, for occupational therapy sessions and assistive devices are reasonable and necessary for her accident-related injuries. I am not persuaded that the proposed occupational therapy sessions and assistive devices will provide the applicant with further safe and functional participation in her activities of daily living because the applicant has reported that she has returned to substantially all of her pre-accident activities.
The applicant is not entitled to treatment plans for physiotherapy and massage therapy at Barrie Core Wellness
24I find that the applicant is not entitled to further physiotherapy and massage therapy because the medical evidence does not support the need for further therapy for the applicant’s accident-related injuries.
25The applicant seeks payment for plans for physiotherapy and massage therapy submitted by Rupinder Kaur, physiotherapist of Barrie Core Wellness Inc. to address the applicant’s injuries including whiplash, sprain and strain type injuries of the shoulder, knee and back, to reduce pain, increase strength and range of motion and return the applicant to her pre-accident activities as follows:
a) OCF-18 dated April 1, 2021, in the amount of $2,274.02, for 16 physiotherapy sessions and 4 massage therapy sessions;
b) OCF-18 dated May 14, 2021, in the amount of $2,789.03, for 22 physiotherapy sessions and 6 massage therapy sessions and;
c) OCF-18 dated June 15, 2022, in the amount of $2,059.02, for 16 physiotherapy sessions and 4 massage therapy sessions.
26The applicant relies on the disputed plans, the clinical notes and records (“CNRs”) of Dr. Tomonori Yokogawa, family physician and the reports of Taylor Peart and Naro Hussaini. The applicant submits that the functionality scale scoring in the disputed plans establish that the goals of the treatment are being met.
27The respondent submits that the plans for physiotherapy and massage therapy were denied because the applicant was in the MIG. In addition, the respondent argues that the applicant did not submit an OCF-23 for medical and rehabilitation benefits for minor injuries under the MIG. The respondent further relies on the IE report dated May 1, 2023, by Dr. Khan which indicates that the applicant has no objective musculoskeletal pathology to warrant facility-based therapy and the applicant has returned to her activities of daily living.
28I find that the evidence before me does not corroborate that the treatment plans are reasonable and necessary. The applicant has only provided the disputed plans from the treatment providers which she relies on as evidence that she has achieved the goals of pain relief, increase strength and range of motion through the proposed physical rehabilitation. Further, the applicant advised Dr. Khan that she has achieved the goals of returning to work and her activities of daily living. Therefore, I find that the applicant has not demonstrated that the plans for physiotherapy and massage therapy are reasonable and necessary for her accident-related injuries.
29I find on a balance of probabilities that the applicant is not entitled to the proposed treatment plans for physical rehabilitation for her accident-related injuries.
The applicant is not entitled to the treatment plan for an optometry assessment
30I find that the applicant is not entitled to an optometry assessment because she has provided contradictory evidence to her treating physician and the assessors regarding her vision symptoms of blurred vision and flashing yellow zigzags before the accident.
31The applicant seeks payment for a plan dated June 9, 2022, in the amount of $1,125.00 for a functional oculo-visual assessment. In the plan dated June 9, 2022, Dr. Christopher Schell, optometrist of Foveal Corporation indicates that the applicant had no pre-existing conditions regarding her vision. Dr. Schell further indicates that the applicant’s injuries which are identified as headaches, blurred vision, double vision, tired eyes, light sensitivity, dizziness and difficulty reading are accident-related. The goals of the plan are to identify visual dysfunctions, assess visual skills and information processing ability of the brain and visual system.
32The applicant relies on the plan and the IE report dated May 1, 2023, by Dr. Michael Angel, neurologist, which indicates that the applicant denied any prior visual problems with migraines before the accident.
33The respondent relies on the IE report of Dr Angel, which indicates in his report dated May 1, 2023, that the applicant does not require a general visual examination, and the proposed plan for an optometry assessment is not reasonable and necessary. The respondent submits that the applicant’s vision symptoms were investigated by an optometrist before the accident.
34I find that the applicant’s self-reports to Dr. Angel contradict the medical evidence in the CNRs of Dr. Yokogawa in the six months before the accident. In consultation report dated August 21, 2020, Dr. Alex Jahangirvand, neurologist indicates that the applicant has increasing left orbital and frontal headaches with nausea, light and noise sensitivity, aura, blurred vision, flashing yellow zigzags and sensory symptoms to the upper extremities. Dr. Angel recommended a functional oculo-visual assessment to address the applicant’s headaches and visual complaints, based on the applicant’s self-reports that she had good visual acuity before the accident, and she is seeing wavy lines after the accident.
35I find that the applicant has not demonstrated that her vision symptoms are related to the accident. On August 21, 2020, approximately six months before the accident, the applicant was examined by Dr. Alex Jahangirvand, neurologist for long-standing migraine headaches with aura, and increasing symptoms over the left eye and frontal region, accompanied by nausea, photophobia, phonophobia and sensory symptoms to both upper extremities. Further, on October 6, 2020, the applicant requested a referral from Dr. Yokogawa to an ophthalmologist regarding left-sided flashing yellow zig zags, blurred vision and pressure sensation headaches.
36Since the applicant has provided contradictory evidence regarding her long-standing migraine headaches with vision symptoms, I find she has not met her burden of proof that the plan for an optometry assessment is reasonable and necessary as result of the accident because the medical evidence doesn’t support that her symptoms have changed.
37I find on a balance of probabilities that the applicant is not entitled to the proposed treatment plan for an optometry assessment.
The applicant is not entitled to treatment plan for a driving evaluation
38I find that the applicant is not entitled to a plan for a driving evaluation for her accident-related injuries.
39The applicant seeks payment for plan dated January 12, 2023, completed by Wendy Nieuwland, occupational therapist of Skill Builders Physiotherapy & Rehab Centre, in the amount of $1,679.75 for a driving assessment. In the plan dated January 12, 2023, Wendy Nieuwland indicates that the applicant has no pre-existing conditions and she requires a driving evaluation for accident-related driving anxiety and phobia. The goals of the plan are to return the applicant to her pre-accident driving status. The applicant relies on the disputed plan and the report of Taylor Peart.
40The applicant submits that she works exclusively from home as a result of anxiety, despite COVID restrictions and her children also attending virtual schooling from home.
41The applicant does not point to any medical evidence from a treating physician which conclude that a driving evaluation is reasonable and necessary a result of the accident.
42The respondent relies on the IE report of Cindi Goodfield, in which the applicant denied any vehicular anxiety. The respondent further submits that the evidence suggest that the applicant has worked from home since March 2020 due to COVID restrictions, which did not change after the accident.
43I find that the plan contradicts the reports of Naro Hussaini, which indicates the applicant had pre-existing driving anxiety, and the IE report dated May 1, 2023 of Cindi Goodfield, in which the applicant denied vehicular anxiety and reported that she has always avoided highways. Further, the applicant advised Cindi Goodfield that she has been working from home since March 2020.
44I find on a balance of probabilities that the applicant has not met her burden of proof that the plan for a driving evaluation is reasonable and necessary as result of the accident because the medical evidence indicates that she denies vehicular anxiety.
The applicant is not entitled to the treatment plan for social worker counselling
45I find that the applicant is not entitled to social worker counselling for her accident-related injuries.
46The applicant seeks payment for a plan dated July 19, 2023, completed by Laura Nelson, occupational therapist of FunctionAbility Rehabilitation Services, in the amount of $3,752.50 for 6 social worker counselling sessions with Danielle LaBranche, social worker of Social Work Consulting Group Inc., including travel time, documentation and planning. In the plan dated July 19, 2023, Laura Nelson indicates that the applicant had no pre-existing conditions and her accident-related fatigue, anxiety and low mood has led to separation from her partner. The goals of the plan are to address the applicant’s psychosocial and emotional functioning, coping and adjustment to injury, community reintegration and link to community resources. The applicant relies on the disputed plan and the report of Naro Hussaini.
47The applicant does not point to any medical evidence from a treating physician which conclude that social worker counselling is reasonable and necessary a result of the accident.
48The respondent relies on the IE report of Cindi Goodfield, which indicates that the applicant is not depressed and her mood symptoms do not require a psychological assessment. In the four months after the accident, on July 6, 2021, Dr. Yokogawa notes that the applicant’s mood is good.
49I find that despite the stated goals of the disputed plan, the IE report of Cindi Goodfield dated May 1, 2023, indicates that for over two years after the accident, the applicant has denied depression and she has remained in a supportive relationship with her partner. Further, Cindi Goodfield indicates that the applicant denied any vehicular anxiety. In addition, the IE reports of Dr. Angel and Cindi Goodfield indicate that the applicant is under stress in taking care of her ill mother and two disabled sons. Further, the CNRs of Dr. Yokogawa include a report by Dr. Micallef dated May 5, 2022, which indicates the applicant has a very stressful job with multiple deadlines and job responsibilities.
50The applicant has not met her burden of proof that the plan for social worker counselling is reasonable and necessary as result of the accident because there is not evidence of a psychological impairment.
The applicant is not entitled to the treatment plan for a neurological assessment
51I find that the applicant is not entitled to a neurological assessment since she is currently under the care of a treating neurologist, Dr. Johann Micallef at the Neurology Centre of Toronto.
52The applicant seeks payment for a plan dated March 24, 2022, for a neurology assessment, submitted by Dr. Francis Farhadi, physician of East York Physiotherapy & Orthopaedic Rehab Clinic, in the amount of $2,200.00 to address the applicant’s injuries including concussion and post concussion syndrome. In the plan, Dr. Farhadi indicates that the applicant had no pre-existing conditions and there is no concurrent treatment for this condition.
53The applicant relies on the disputed plan and the IE report of Dr. Angel, in which Dr. Angel indicates that a neurology assessment is not reasonable and necessary for the applicant’s accident-related injuries since she is under the care of a neurologist for her pre-existing migraine headaches.
54The respondent relies on the IE report of Dr Angel, which indicates in his report dated May 1, 2023, that since the applicant is under the care of a treating neurologist, the proposed plan for a neurology assessment is not reasonable and necessary. The respondent submits that the applicant’s accident-related neurological symptoms are not clear since she was treated by a neurologist before the accident. The respondent has produced the applicant’s CNRs of Dr. Yokogawa from before the accident starting from August 21, 2020.
55I find that in his report dated May 1, 2023, Dr. Angel diagnoses the applicant with a very mild concussion, and he indicates that the applicant reports increased frequency and duration of migraine headaches, but he does not indicate how her headaches have changed.
56I find that the applicant has not demonstrated that a neurological assessment is reasonable and necessary for her accident-related symptoms. The evidence suggest that the applicant was under the care of a neurologist before the accident. In the six months before the accident, on August 21, 2020, the applicant was examined by Dr. Alex Jahangirvand, neurologist for long-standing migraine headaches with aura, and increasing symptoms over the left eye and frontal region, accompanied by nausea, photophobia, phonophobia and sensory symptoms to both upper extremities. Further, on October 6, 2020, the applicant requested a referral from Dr. Yokogawa to an ophthalmologist regarding left-sided flashing yellow zig zags, blurred vision and pressure sensation headaches. The applicant has not produced any medical documentation regarding her pre-existing neurological condition.
57The applicant has not provided medical evidence in support of the stated goal of the disputed plan that she requires a neurological assessment, or that she has no concurrent treatment for her accident-related concussion symptoms. Therefore, the applicant has not demonstrated that the plan for a neurological assessment is reasonable and necessary as a result of the accident.
The applicant is not entitled to the plan for a psychological assessment
58I find that the applicant is not entitled to the plan for a psychological assessment since there is insufficient evidence that the applicant suffers from a psychological impairment as a result of the accident.
59The applicant seeks payment for a plan dated April 13, 2022, completed by Zubina Ladak, psychologist of East York Physiotherapy & Orthopaedic Rehab Clinic, in the amount of $2,200.00 for a psychological assessment to address the applicant’s depressive episode and specific phobia. Zubina Ladak indicates the applicant had no pre-existing conditions and she has not returned to her non-vocational activities.
60The applicant relies on the plan and pre-screen report dated April 1, 2022, by Zubina Ladak, which indicates that although the applicant receives treatment for a pre-existing pineal gland cyst, migraine headaches and abnormal mammograms, she had no prior psychological concerns. In addition, Zubina Ladak mentions the applicant’s numbness and tingling in her extremities, blurred vision, and left shoulder and knee pain, there is no mention of these pre-existing conditions. The applicant also relies on the report dated May 2, 2022 by Dr. Johann Micallef, neurologist in which psychotherapy is recommended to manage anxiety and coping difficulties with stress reduction and energy conservation. The applicant mentions the report of Cindi Goodfield, in which the applicant reported the stressors of her mother’s illness and her sons’ autism and behavioural problems.
61The respondent relies on the CNRs of Dr. Yokogawa, which do not mention any accident-related psychological impairment. Although, in Naro Hussaini’s report dated December 12, 2022, the applicant reported irritability and stress in working from home with her children also at home with online classes, there is no indication that these stressors are accident-related.
62I find that the plan is contradicted by the IE reports of Dr. Khan and Cindi Goodfield, which indicate the applicant has returned to her pre-accident housekeeping and caregiver responsibilities, as well as her recreational activities of golfing and swimming.
63The applicant has not provided medical evidence that she has a psychological impairment as a result of the accident. The evidence suggests that the applicant’s mood symptoms are associated with factors involving her family, which are unrelated to the accident. Therefore, the applicant has not demonstrated that the plan for a psychological assessment is reasonable and necessary as a result of the accident.
64I find on a balance of probabilities that the applicant is not entitled to the proposed plan for a psychological assessment.
The applicant is not entitled to interest and an award
65Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
66Under 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.
67Since there are no benefits owing and no evidence of benefits being unreasonable withheld or delayed, there is no interest or award payable to the applicant.
ORDER
68For the reasons set out above, I find that:
i. The applicant is not entitled to ACB.
ii. The applicant is not entitled to the treatment plans in dispute.
iii. The applicant is not entitled to interest.
iv. An award is not payable.
v. The application is dismissed.
Released: February 25, 2025
Lisa Holland
Adjudicator