Citation: Thompson v. Certas Home and Auto Insurance Company, 2025 ONLAT 23-005657/AABS

Licence Appeal Tribunal File Number: 23-005657/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:

Johanna Thompson

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Dagmara Wozniak, Counsel

For the Respondent: Vicky Chan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Johanna Thompson, the applicant, was involved in an automobile accident on July 28, 2018, 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, Certas Home and Auto 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:

1. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $376.00 per week from November 5, 2021 to date and ongoing?
2. Is the applicant entitled to $1,924.44 for an occupational therapy (“OT”) assessment, proposed by DMA Rehability in a treatment plan/OCF-18 (“plan”) submitted on May 20, 2021?
3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3After considering both parties’ submissions and all the evidence I find:

1. The applicant is entitled to an IRB in the amount of $376.00 per week from November 5, 2021 to date and ongoing, less any post-accident income.
2. The applicant is entitled to $1,924.44 for an OT assessment, proposed by DMA Rehability in a treatment plan/OCF-18 (“plan”) submitted on May 20, 2021.
3. The respondent is not liable to pay an award under s. 10 of Regulation 664.
4. The applicant is entitled to interest on overdue payment of benefits pursuant to s. 51 of the Schedule.

PROCEDURAL ISSUE

4The respondent requested that the report of Cathy Sydor, Occupational Therapist (“OT Sydor”), dated September 16, 2022 and the report and opinion letter of Heather Spencer Grimm, vocational consultant, dated December 6, 2022 and June 20, 2023, be excluded because the applicant first served these reports on the respondent with her written submissions on July 9, 2024. The respondent also requests that paragraphs 24, 29, 32, 33 and 34 of the applicant’s submissions be struck because they referenced these documents.

5The respondent submits that the applicant did not comply with the deadlines set out in the Tribunal’s case conference report and order (“order”) dated December 20, 2023, which provided a deadline for the parties of March 4, 2024 (75 days from the case conference), and a final deadline of March 29, 2024 (100 days from the case conference) to exchange evidence. The respondent also relies on Rule 9.2 (a) of the Tribunal’s Common Rules of Practice and Procedure which states that a party to a hearing shall serve any evidence it intends to rely on at least 10 days before the hearing. Further, Rule 9.4 states that if a party fails to comply with any Rules, directions, or orders with respect to disclosure that party may not rely on the document without the consent of the Tribunal. The respondent submits that the applicant’s non-compliance with the Tribunal’s order is trial by ambush and is procedurally unfair.

6The applicant argues that the respondent’s submission that it first received these documents on July 9, 2024 is not accurate. She submits that the report of OT Sydor and Ms. Spencer Grimm were both served on the respondent when she filed her LAT application in May 2023. Further, the opinion letter of Spencer Grimm was served on the respondent by email on July 4, 2023. The applicant relied on the index to the LAT application and email dated July 4, 2023 in support of her position that these documents were previously served on the respondent.

7I decline the respondent’s request to exclude these reports or the applicant’s submissions regarding same as they are relevant to the issues in dispute. Although I note that the index provided in the applicant’s reply submissions does not include the report of OT Sydor, I am not convinced that the respondent first received the report of Ms. Spencer Grimm on July 9, 2024, because it was sent by email in 2023, long before the written hearing date. Consequently, I find that the respondent was aware of the report of Ms. Spencer Grimm and had sufficient time to address it in its written submissions. Ultimately, I find OT Sydor’s report of limited value because it does not address the alternative occupations identified in in the respondent’s IE, however, I have given it some weight where the findings were consistent with the other evidence.

BACKGROUND

8On July 28, 2018, the applicant was involved in an accident when she was a passenger on a motorcycle driven by her husband which stopped abruptly to avoid a head on collision with another vehicle. She was thrown several feet from the motorcycle landing on the ground. She has been diagnosed with a fractured pelvis, concussion, post-concussion syndrome, chronic pain syndrome (neck, back, left leg, groin, and shoulder) and psychological impairments.

9Prior to the accident, the applicant was self-employed as a hairdresser for 30 years working out of a home salon. She remained off work for eight weeks following the accident and returned to hairdressing on and off on reduced hours and modified duties. Prior to the accident she also worked part-time as a paid caregiver for her three grandchildren and to date has never returned to these duties. The respondent paid the applicant an IRB from August 5, 2018 to November 4, 2021, when it terminated the benefit relying on the opinions of its insurer’s examination (“IE”) assessors.

10The applicant made a typographical error in her submissions regarding the quantum of the IRB in that she referred to the quantum as $277.00 per week. I note that she clarified that the correct quantum of IRBs was $376.00 per week as agreed to by the parties in the Tribunal’s order. The parties’ submissions did not indicate that the quantum of the benefit was in dispute.

ANALYSIS

The applicant is entitled to post-104 IRBS in the amount of $376.00 per week from November 5, 2021, to date and ongoing, less any post-accident income

11To receive payment for post-104-IRBs under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.

12The applicant argues that to date she has not returned to being a paid caretaker for her three grandchildren because of her accident-related physical impairments. Further, her attempts to return to her pre-accident occupation as a hairdresser at her pre-accident level of function have been unsuccessful. The applicant submits that she does not have the education, experience, or functional capacity to work in any occupation or any of the occupations identified by the respondent’s IE assessors. The applicant relies on the reports of Dr. Biederman, psychologist, dated February 22, 2022, Dr. Sequeira, physiatrist, dated March 31, 2022, and Dr. Gaskovski, neuropsychologist, dated July 18, 2022. She also relies on the report and opinion letter of OT Sydor dated September 16, 2022 and April 25, 2023 and vocational assessment report of Ms. Spencer Grim dated December 6, 2022, in support of her position that she meets the post-104 IRB test as a result of her accident-related impairments.

13The respondent submits that the applicant does not meet the post-104 IRB test because post-accident she has resumed working part-time in her pre-accident occupation as a hairdresser which demonstrates that she does not meet the complete inability test. It also asserts that the applicant has the functional capacity to return to work in another job which is less physically demanding than her pre-accident occupation. The respondent relies on the functional capacity evaluation, vocational assessment, and labour market survey (“LMS”) reports of Luigi Grimaldi, kinesiologist, and Dr. Plotnick, psychologist, dated November 4, 2021, and Dr. Bartol, orthopaedic surgeon, dated June 8, 2021, who all concluded that the applicant did not meet the post-104 IRB test.

14I will first discuss the applicant’s academic and employment history and will then address the medical evidence.

Applicant’s Academic and Employment History

15The applicant is 63 years old, and her highest level of education is a high school diploma and a hairstyling certificate. The applicant has worked as a hairstylist for 30 years and most recently worked out of a home salon. She also worked as an aerobics instructor in the 1980s which I find irrelevant to the current analysis.

16Prior to the accident, she worked three days a week, approximately 10 hours per day as a hairstylist. She also spent two days a week, 8 hours per day as a caretaker for her three small grandchildren in which she received $150.00 per day in compensation. Following the accident, she has worked part-time as a hairstylist out of financial necessity working up to three hours a day, up to a maximum of 10 to 12 hours per week. The applicant submitted tax returns which support that over the past three years her self-employment income has averaged approximately $3,500 annually. The applicant has never returned to her pre-accident caretaking duties which I accept because all the assessors found her to be a reliable and credible historian.

17The parties submitted case law setting out the criteria decision makers should consider in determining whether an individual meets the post-104 IRB test. Overall, I did not find the fact scenarios outlined in any of the decisions relied on by the parties particularly applicable to the present case. However, I was referred to the Court of Appeal’s decision in Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479 (“Burtch”) which highlighted the following principles to consider in analyzing what constitutes suitable alternative occupations:

i. A suitable alternative occupation must be reasonably comparable to the insured's former job both in status and reward;

ii. A job cannot be considered a suitable alternative if a substantial amount of upgrading is required; and

iii. While the primary focus in determining whether a job is a suitable alternative is on the insured's functional limitations, job market considerations are also relevant.

18I find the applicant’s academic history is limited as her highest level of education is high school. Further, I find her training and work experience to be solely in the vocation of hairstyling as she has a has spent most of her adult life working in the same career. I find that the applicant’s age, academic history, and work experience to be barriers to alternative employment options. Although the applicant has worked part-time as a hairdresser post-accident, I find the medical evidence supports that her hours of work and duties have been significantly reduced because of her accident-related impairments. I find that post-accident, she has worked at a fraction of her pre-accident capacity because of her physical, psychological, and cognitive impairments which will be discussed further below.

The Medical Evidence

19I find the totality of the medical evidence supports that the applicant has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience for the following reasons.

20First, I find the neuropsychological report of Dr. Gaskovski supports that the applicant has ongoing cognitive impairments as a result of the accident which significantly interfere with her ability to carry out her pre-accident employment tasks as a hairdresser. For example, the report notes that the applicant’s cognitive symptoms interfere with her ability to multi-task leading to mistakes with mixing up hair colours and uneven cuts. The doctor noted that the applicant has problems with word finding and that cognitive and psychological tests support significant weakness in working memory, processing speed and attention and concentration. Further, Dr. Gaskovski states that the applicant’s psychological and cognitive condition will lead to an increase in errors and slowness in performance which I find would limit her employability.

21Second, I find the report of Dr. Sequeira supports the impact of the applicant’s chronic pain on her ability to carry out her pre-accident employment tasks as a hairdresser. For example, she is unable to shovel the walkway for clients to attend her home salon; she has a hard time managing long hair and foils which limits the jobs she can do; and she has difficulty sustaining posture for extended periods of time and bilateral arm movements. Dr. Sequeira opined that the applicant is now confined to light, sedentary and medium intensity activities. She has restrictions with prolonged sitting, standing, bending, lifting, twisting, stooping and bilateral arm movements above shoulder height because of ongoing chronic pain. Dr. Sequeira concluded that the applicant has permanent vocational restrictions from her impairments that will remain and relegate her to paced, light intensity roles for 8 to 10 hours per week compared to what she was doing pre-accident. Further, the doctor indicated that the applicant’s meaningfully compromised vocational state is susceptible to aggravation and deterioration. I find Dr. Sequeira’s opinion was consistent with the functional limitations outlined in the report of OT Sydor.

22In contrast, I do not find the IE of Dr. Bartol persuasive because the doctor acknowledged that the applicant has ongoing physical impairments and has not reached maximum medical recovery. The doctor indicated that her pelvic fracture will likely lead to permanent physical impairments because these types of injuries are known to cause ongoing issues. Yet, the doctor concluded that the applicant does not have a complete inability from carrying out the essential tasks of the employment in the occupations outlined in the labour market survey (“LMS”) of Mr. Grimaldi. What I find lacking in Dr. Bartol’s report was any analysis to explain why the doctor came to this conclusion because there was no discussion about what the essential tasks of any of the alternative occupations listed in Mr. Grimaldi’s LMS in Dr. Bartol’s report.

23Third, I find the psychological reports of both parties’ assessors support that the applicant’s ongoing psychological impairments have had a very negative impact on her employment post-accident. In fact, both doctors conclude that the applicant’s psychological impairment has had a significant impact on all domains of her life. I find the IE of Dr. Plotnick supports that the applicant meets the post-104 test because the doctor states that the applicant “could undertake the essential duties of the jobs listed in the LMS report at a rate commensurate with her current level of involvement in her work functions as a hair stylist.” However, Dr. Plotnick was aware that the applicant was working less than part-time hours and modified duties. Dr. Plotnick further acknowledged the severity of the applicant’s impairments in that the doctor opined that she suffers a complete inability to carry on a normal life as a result of her accident-related impairments. Although I acknowledge that Dr. Biederman did not render an opinion supporting that the applicant has a complete inability to meet the post-104 IRB test, I find the doctor’s report supports that the applicant has significant functional limitations because of her accident-related psychological impairment.

24Fourth, I find the applicant’s age, combined with her accident-related physical, psychological, and cognitive impairments would be a barrier to her retraining or carrying out the essential tasks of the occupations identified in Mr. Grimaldi’s LMS report. Mr. Grimaldi’s LMS report concluded that she could obtain a job as a customer service representative, call centre agent, retail loss prevention officer or retail salesperson. However, I find Mr. Grimaldi does not identify what the essential tasks of these occupations are at all in his report. Further, I find that these occupations are not comparable to the insured's former job in status. For example, the applicant has been self-employed as a hairdresser for most of her adult life and has had flexibility and control over her hours of work and schedule. Although the alternative occupations identified by Mr. Grimaldi may be comparable as far as wages the applicant would not have any flexibility or control over her hours of work or schedule. Further, her pre-accident employment as a hairdresser was creative and rewarding and she was passionate about her job.

25I have no evidence before me about what the functional capacities of the alternative employment options identified by Mr. Grimaldi are to compare to the applicant’s pre-accident occupation. Further, applying common sense I find the applicant’s cognitive and psychological impairments would likely interfere with her ability to competently carry out the duties of a customer service representative, call centre agent, retail loss prevention officer or retail salesperson. These occupations would require the applicant to be proficient using a computer, problem solve and have a positive attitude to deal with consumers or consumer complaints appropriately. Moreover, I find Dr. Plotnick’s IE supports that the applicant’s ability to work on a computer is limited to one-hour and I find this limitation on its own would prevent the applicant from working in any of the occupations identified by Mr. Grimaldi.

26Finally, I prefer the vocational assessment of Ms. Spencer-Grimm who determined that she was unable to identify any alternative occupations suitable for the applicant. I find Ms. Spencer Grimm considered the applicant’s cognitive and psychological impairments in her assessment of the aptitudes which would be required for the applicant to work in the occupations identified by Mr. Grimaldi. Further, I find she administered three different methods of testing as opposed to one in coming to this conclusion. For example, she administered an aptitude test, a test on academic achievement and problem solving which identified that the applicant would have significant deficits to work in any of the occupations identified by Mr. Grimaldi. I also find Ms. Spencer Grimm’s opinion more consistent with the medical evidence before me.

27For all the above-noted reasons, I find the applicant suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. Consequently, she is entitled to payment of an IRB in the amount of $376.00 per week from November 5, 2021, to date and ongoing, less any post-accident income.

The applicant is entitled to $1,924.44 for the OT assessment, proposed by DMA Rehability in the OCF-18 submitted on May 20, 2021

28Section 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 assessment is reasonable and necessary. The jurisprudence supports that to prove that an assessment is reasonable and necessary the applicant must have evidence that she has an accident-related impairment in which the assessment is meant to address.

29The OCF-18 was completed by OT Sydor and the goal was for pain reduction, increase strength and range of motion (“ROM”) to return the applicant to her activities of daily living. The purpose of the assessment was to assess the applicant’s function in her home, workplace, and community in order to make recommendations to reduce the impact of her disability in carrying out her pre-accident daily activities. The OCF-18 proposed $1,500.00 for the assessment, $224.44 for provider travel time and $200.00 for preparation of the OCF-18 for a total cost of $1,924.44.

30On May 22, 2021, the respondent sent the applicant an explanation of benefits denying the OCF-18 because there was no objective medical documents received to support that the applicant’s situation had changed. It relied on an updated attendant care report and Form 1 of Tina Giancarlo, occupational therapist (“OT Giancarlo”), from 2019, which it maintains supports that the applicant had returned to her self-care and activities of daily living.

31The applicant argues that the OT assessment is reasonable and necessary because she has not resumed her pre-accident level of function in her occupation, housekeeping and home maintenance tasks or leisure activities.

32The respondent submits that the OCF-18 for an OT assessment is not reasonable and necessary because there are no contemporaneous medical records to support that it was required at the time it was submitted. It maintains that the applicant had independently returned to her personal care and activities of daily living which was supported by the above-noted report and Form 1 of OT Giancarlo from 2019. Consequently, the request for an assessment is redundant.

33I find the OCF-18 recommending the OT assessment to be reasonable and necessary for the following reasons.

34First, although the applicant has independently resumed her self-care and some of her activities of daily living, most of the assessments support that she still has not regained her pre-accident level of independence in many activities of daily living at her pre-accident level, such as heavier household tasks and leisure activities like gardening, playing tennis and attending live music events with friends. I find that an OT assessment is reasonable and necessary to make recommendations so that the applicant could regain independence in some of the leisure activities she previously enjoyed as well as housekeeping activities.

35Second, one of the purposes of the assessment was to assess the applicant’s home workspace within the context of her current function to make recommendations for a form of return to work by using education and assistive device technology to facilitate greater function. In light of my decision made above, I find the OT assessment reasonable and necessary at the time it was recommended to achieve these objectives because the evidence is clear that the applicant has not returned to her pre-accident employment in any meaningful way.

36Third, I find the purpose of the assessment was not to assess whether the applicant requires attendant care. Consequently, I find the 2019 attendant care report and form 1 of Ms. Giancarlo irrelevant as to whether the OT assessment was reasonable and necessary.

37For the above-noted reasons, I find the applicant has proven on a balance of probabilities that the OT assessment in the amount of $1,924.44 is reasonable and necessary.

The applicant is entitled to interest on overdue benefits.

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on IRBs and the OCF-18 recommending the OT assessment in the amount of $1,924.44 because I find that the benefits are overdue.

The respondent is not liable to pay an award.

39The applicant sought an award under s. 10 of Regulation 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. The applicant submits that the respondent knowingly and unfairly denied the applicant’s benefits. The applicant also requested payment of costs in the amount of $1,000 pursuant to Rule 19 of the Tribunal’s Rules.

40Rule 19.1 provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

41In analyzing whether an insurer’s conduct in withholding or denying a benefit warrants an award an insurer’s behaviour must be seen as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The threshold for an award is high and the case law is well established that an award is not meant to punish the unsuccessful party at a hearing or penalize an insurer for getting it wrong.

42I find the applicant has not met her onus in proving that an award is warranted in this case because her submissions did not address how the respondent’s conduct meets the definition of being excessive, imprudent, stubborn, inflexible, or immoderate or refer to the evidence she relies upon in support of her position. Further, I find her submissions confused an award with a request for costs under Rule 19.1 as she requested expenses in the amount of $1,000.00. However, she did not include any reasons for her request for costs or explain how the respondent’s conduct throughout the proceedings warrants payment of same.

43For these reasons, I find the applicant is not entitled to costs, nor is the respondent liable to pay an award.

ORDER

44For the above-noted reasons, I order:

i. The applicant is entitled to an IRB in the amount of $376.00 per week from November 5, 2021 to date and ongoing, less any post-accident income.

ii. The applicant is entitled to $1,924.44 for the OT assessment, proposed by DMA Rehability in a treatment plan/OCF-18 (“plan”) submitted on May 20, 2021.

iii. The respondent is not liable to pay an award under s. 10 of Regulation 664.

iv. The applicant is entitled to interest on overdue payment of benefits pursuant to s. 51 of the Schedule on both benefits in dispute.