Licence Appeal Tribunal File Number: 24-002066/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:
Maria Salvaggio
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Julia Vilorio Peguero, Counsel
For the Respondent:
Mai Nguyen, Counsel
Court reporter:
Caitlin Westerhout
HEARD by Videoconference:
February 25, and 26, 2025
OVERVIEW
1Maria Salvaggio, the applicant, was involved in an automobile accident on December 25, 2016, 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, Wawanesa Mutual 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:
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from February 27, 2017 to May 18, 2021?
Is the applicant entitled to $3,622.73 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan/OCF-18 (“treatment plan”) dated July 18, 2022?
Is the applicant entitled to $6,033.60 for occupational therapy services, proposed by Innovative Occupational Therapy Services Inc. in a treatment plan dated August 18, 2022?
Is the applicant entitled to $5,553.97 for counselling services, proposed by Critical Trauma Therapy in a treatment plan dated January 3, 2024?
Is the applicant entitled to $4,289.85 for physiotherapy services, proposed by FunctionAbility Rehabilitation Services LP in a treatment plan dated January 22, 2020?
Is the applicant entitled to $3,574.68 for physiotherapy services, proposed by FunctionAbility Rehabilitation Services LP in a treatment plan June 11, 2020?
Is the applicant entitled to $4,464.36 for physiotherapy services, proposed by FunctionAbility Rehabilitation Services LP in a treatment plan dated January 15, 2021?
Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by Innovative Occupational therapy Services in a treatment plan dated August 23, 2022?
Is the applicant entitled to $2,000.00 for a mental health driving assessment, proposed by Critical Trauma Therapy in a treatment plan dated December 28, 2022?
Is the applicant entitled to $2,200.00 for a direct functional cognitive assessment, proposed by Critical Trauma Therapy in a treatment plan dated December 28, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
3At the commencement of the hearing, the applicant withdrew issues 4(b) and 4(i) as indicated in the Case Conference Report and Order (“CCRO”) released on July 9, 2024. The balance of the issues remains in dispute.
RESULT
4For the reasons that follow, I find that:
The applicant is barred from proceeding with her claim for a NEB.
The applicant is barred from proceeding with her claim for entitlement to the treatment plans identified as Issues 2, 5, 6, and 7 above. The applicant is not entitled to the balance of the treatment plans in dispute.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
5The application is dismissed.
ANALYSIS
Non-Earner Benefit
6I find that the applicant is barred from proceeding with her claim for a NEB in the amount of $185.00 per week for the period of February 27, 2017 to May 18, 2021 as the applicant failed to dispute the respondent’s denial within the timeframe prescribed by s. 56 of the Schedule.
7Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment because of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
8Section 3(7)(a) of the Schedule defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for a NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre-accident and post-accident activities.
9Section 12(3) of the Schedule provides that an insurer is not required to pay a NEB, (a) for the first four weeks after the onset of the complete inability to carry on a normal life, (b) before the insured person is 18 years old, (c) for more than 104 weeks after the accident, or (d) if the insured person is eligible to receive and has elected under s. 35 to either receive an income replacement benefit or a care giver benefit.
10Section 36 of the Schedule details the process for claiming a NEB. Section 36(2) and 36(3) provide that the entitlement period for a NEB commences once a completed Application for Accident Benefits (OCF-1) and a completed Disability Certificate (OCF-3) has been submitted. An applicant who fails to submit a completed OCF-3 is not entitled to a NEB for any period before the completed OCF-3 is submitted.
11Section 56 of the Schedule provides that an application under s. 280 of the Insurance Act, R.S.O. 1990, c. I.8 to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay.
12Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LAT Act”) allows the Tribunal to extend a limitation period. In considering whether to exercise its discretion to extend the limitation period, the Tribunal may consider the following four factors to determine if the justice of the case requires the extension:
A bona fide intention to appeal within the limitation period;
The length of the delay;
The prejudice to the other party; and
The merits of the appeal.
13These four factors do not need to be strictly met. Rather, they are a guide to assist in determining the justice of the case. Whether to grant an extension of time will depend on the facts of each case, and the party seeking the extension bears the onus of satisfying the Tribunal that the extension should be granted.
14In the present case, the applicant was involved in an accident on December 25, 2016. She was 15 years old at the time of the accident. She was still a minor when she submitted her Application for Accident Benefits (OCF-1) dated January 18, 2017, and when she submitted a Disability Certificate (OCF-3) dated February 15, 2017, and applied for a NEB. In an explanation of benefits dated March 17, 2017, the respondent refused to pay a NEB and advised the applicant that although the OCF-3 supported that she suffered from a complete inability to carry on a normal life as a result of the accident, pursuant to s. 12(3) of the Schedule, an insurer is not required to pay a NEB before the insured person is 18 years old. The following month, the applicant submitted an OCF-3 dated April 25, 2017, indicating that she no longer suffered from a complete inability to carry on a normal life. On February 15, 2024, the applicant filed an application with the Tribunal disputing the respondent’s refusal to pay a NEB.
15The applicant argues that although she was a minor when she applied for a NEB, she was medically entitled to an NEB. She states that pursuant to s. 12 of the Schedule, an insured person who is a minor can be eligible for a NEB, but payment is not required until the insured person reaches age 18. The applicant relies on D.C. v. T.D. Insurance Meloche Monnex, 2023 CanLII 77319 (ON LAT) (“D.C.”).
16The applicant submits that given the respondent’s non-compliance with ss. 36(4) and 36(6) of the Schedule, she should be entitled to a NEB. She states that the respondent’s explanation of benefit dated March 17, 2017 does not constitute a proper denial as it was not a clear and unequivocal denial as required by Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 SCR 129. The applicant argues that there must be a proper denial for the limitation period to commence.
17Alternatively, the applicant argues that the limitation period should be extended pursuant to s. 7 of the LAT Act. She claims that she had a bona fide intention to appeal because records were requested and submitted in support of her claim for accident benefits. She states that the length of the delay is not significant. She denies any prejudice to the respondent, and she states that she would be prejudiced if she could not pursue her claim for a NEB. She claims that there are merits to her appeal and that she should be entitled to pursue her claim for entitlement to a NEB regardless of any potential limitation issue.
18The respondent argues that the applicant is barred from pursuing a claim for a NEB because she did not dispute its refusal to pay the benefit within the two-year limitation period. The respondent states that the process for applying for a NEB is set out in s. 36 of the Schedule, and there is no separate process for a minor. The respondent submits that after the applicant applied for a NEB, it complied with s. 36 of the Schedule and refused to pay the specified benefit. The respondent argues that pursuant to s. 56 of the Schedule, the limitation period commences when the insurer refuses to pay a benefit, regardless of whether the denial is correct. Since the respondent refused to pay a NEB to the applicant on March 17, 2017, the limitation period commenced at that time. Despite this, the applicant did not file her application with the Tribunal until February 2024, well beyond the expiry of the two-year limitation period. The respondent also states that there is no discoverability issue as the applicant knew that there may be entitlement to a NEB when she submitted her OCF-3. The respondent relies on Fu v. Pembridge Insurance Company, 2022 CanLII 124640 (ON LAT).
19The respondent further argues that the Tribunal should not exercise its discretion to extend the limitation period pursuant to s. 7 of the LAT Act because the applicant has not satisfied her onus to prove that s. 7 should be applied. The respondent states that there is no evidence to suggest that the applicant intended to appeal its refusal to pay a NEB within the two-year limitation period. The respondent notes that the length of the delay is significant given that it refused to pay a NEB in 2017 and the application to the Tribunal was not filed until February 2024. The respondent states that it has been prejudiced by having to defend a denial that is beyond two years old. The late notice is prejudicial and not curable. The respondent denies that there is any merit to the applicant’s claim to a NEB given that the applicant submitted an OCF-3 dated April 24, 2017 indicating that she no longer suffered from a complete inability to carry on a normal life. Further, the applicant was able to return to school and to her regular activities following the accident.
20I find that the explanation of benefits dated March 17, 2017 constitutes a refusal to pay, triggering the two-year limitation period set out in s. 56 of the Schedule. According to the explanation of benefitd, the respondent indicated that the applicant was not eligible to receive a NEB. While it acknowledged that the OCF-3 dated February 26, 2017 supported that the applicant suffered from a complete inability to carry on a normal life as a result of the accident, pursuant to s. 12(3) of the Schedule, it is not required to pay a NEB before the applicant is 18 years of age. Further, at Part 6 of the explanation of benefits entitled “Applicant’s Rights to Dispute”, the respondent provided information to the applicant about her right to dispute the insurer’s determination and warned the applicant about the two-year time limit. Therefore, the applicant had until March 17, 2019 to dispute the respondent’s refusal to pay a NEB. Given that the applicant did not file her application with the Tribunal until February 15, 2024, her application was filed well beyond the expiry of the applicable limitation period.
21I further find that an extension of the prescribed time limit to dispute the applicant’s claim for a NEB is not warranted in the circumstances. The evidence does not support a finding that the applicant had a bona fide intention to appeal the respondent’s determination within the two-year limitation period, i.e. on or before March 17, 2019. While the applicant vaguely states that records were requested and submitted, she does not specify the timeframe of these exchanges, nor does she explain how these exchanges constitute an intention to appeal within the prescribed limitation period. Further, the applicant adamantly argues that she did not believe that the benefit had been properly denied and that the limitation period had not commenced.
22I find that the length of the delay sought by the applicant is significant. Pursuant to s. 56 of the Schedule, the applicant had two years to dispute the respondent’s determination, until March 17, 2019, and she did not file her application with the Tribunal until February 15, 2024. As such, there is a delay of nearly five years.
23I find that there is prejudice to the respondent if the extension is granted. Prejudice is presumed when a prescribed time limit to appeal is missed. I also find the applicant’s reasons insufficient to justify the length of the delay sought. Even if the applicant believed that the respondent’s explanation of benefits dated March 17, 2017 did not constitute a proper denial, it remains that a NEB was never paid for a period of nearly seven years before the applicant filed her application with the Tribunal. Here, the prejudice that is relevant to consider is the prejudice that is caused, perpetuated, or exacerbated by the applicant’s proposed delay of nearly 5 years. As such, the prejudice factor militates against extending the time limit for the appeal.
24I find that there is some merit to the applicant’s appeal. Based on the two OCF-3s that were submitted to the respondent, the applicant suffered a complete inability to carry on a normal life as a result of the accident for the period of February 26, 2017 to April 25, 2017. Further, based on the D.C. decision, since the applicant suffered from a complete inability to carry on a normal life as a result of the accident within 104 weeks after the accident and that she was a minor at the time, payment of the NEB ought to have been deferred until she reached the age of 18 on May 18, 2019. As no payment was ever made, the applicant’s claim for a NEB is not meritless.
25Nevertheless, in weighing the factors to determine the justice of the case, I find that they weigh against granting the applicant’s request to extend the limitation period. The onus is on the applicant to satisfy the Tribunal that there are reasonable grounds for applying for the extension and for granting the extension, and the applicant did not meet her burden of proof. The applicant was afforded the right to appeal the respondent’s refusal to pay a NEB within two years of the determination, and based on the explanation of benefit dated March 17, 2017, she had notice of her right to appeal. Without reasonable grounds, the applicant did not file her application to the Tribunal to appeal the determination within the prescribed time limit. As such, an extension of time is not warranted.
26Accordingly, I find that the applicant is barred from pursuing a claim for a NEB.
27I find that the applicant is barred from proceeding with her claim for entitlement to the treatment plans identified as Issues 2, 5, 6, and 7 above, and that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the balance of the treatment plans in dispute.
28To receive payment for a treatment and assessment plan 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 because of the accident. To do so, the applicant should identify the goals of the treatment plan, how the goals would be met to a reasonable degree, and the overall costs of achieving them are reasonable.
29Pursuant to s. 44(5)(a) of the Schedule, if the insurer requires an examination under this section, the insurer shall give the insured person a notice setting out, among other things, the medical and any other reasons for the examination.
30The scope of the “medical and any other reasons” that the insurer must provide under the Schedule is outlined in M.B. v. Aviva Insurance Company, 2017 CanLII 87160 (“M.B.”) and reads as follows:
In my view, an insurer satisfies its obligation to provide its “medical and any other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.
31Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice in accordance with the Schedule that it requires an examination under s. 44, but the insured person has not complied with that section.
The applicant is barred from claiming $3,622.73 for chiropractic treatment (Issue 2)
32I find that the applicant is barred from proceeding with her claim for the treatment plan for chiropractic treatment (incorrectly identified as physiotherapy services in the issues in dispute) pursuant to s. 55(1)2 of the Schedule as the respondent provided the applicant with notice that it required an examination under s. 44 of the Schedule, and the applicant failed to attend the examination.
33The treatment plan dated July 18, 2022, in the amount of $3,622.73 proposes 21 chiropractic treatment sessions, 18 massage therapy sessions, personal protective equipment, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase strength, and to increase range of motion. The functional goals are to return to activities of normal living, and to return to modified work activities.
34The applicant submits that the treatment plan is reasonable and necessary, and she relies on various medical records including the clinical notes and records of Vaughan Spine and Sport Therapy (Maple), Mackenzie Medical, and Team Maple Walk in Clinic, a chronic pain report dated July 16, 2023 completed by Dr. Mark Friedlander, physician, and a neuropsychological report dated August 15, 2023 completed by Dr. Giselle Braganza, psychologist and neuropsychologist. The applicant states that based on the medical evidence, she received ongoing physical therapy to address her accident-related whiplash associated disorder, lumbar spine strain, neck pain, shoulder pain, and headaches.
35In terms of diagnosis, Dr. Friedlander diagnosed the applicant with chronic post traumatic headache with post concussion syndrome, cervical vertebral column sprain/strain causing chronic post traumatic musculoskeletal neck and shoulder girdle/periscapular pain, lumbar vertebral column sprain/strain causing chronic posttraumatic lumbar mechanical and myofascial (muscle and soft tissue) pain, psychological impairment, sleep disorder associated with chronic pain, and chronic pain syndrome. Further, Dr. Braganza diagnosed the applicant with an unspecified depressive disorder and adjustment disorder with anxiety, resolving specific phobia (related to vehicular travel), and somatic symptom disorder with predominant pain.
36While the applicant acknowledges that the respondent requested that she attend an insurer examination with Dr. Rajka Soric, physiatrist, relating to this treatment plan, she submits that as indicated in her counsel’s correspondence dated August 8, 2022 and September 7, 2022, it is her position that the respondent did not provide sufficient medical or other reasons for the reasonableness and necessity of the in-person examination as required by s. 44(5) of the Schedule and M.B. On this basis, the applicant did not attend the examination with Dr. Soric.
37The respondent submits that the applicant is barred from proceeding with her claim for entitlement to this treatment plan pursuant to s. 55(1)2 of the Schedule because she failed to attend the examination with Dr. Soric. On August 5, 2022, the respondent advised the applicant that it did not agree to pay for the treatment plan because it was not reasonable and necessary. The respondent also requested that the applicant attend a s. 44 insurer examination with Dr. Soric on September 6, 2022. At the request of the applicant, the examination was rescheduled to September 13, 2022. Indeed, Debbie Sawyer, adjuster, testified that the applicant called her and requested that the examination be rescheduled because she was starting school. As the applicant ultimately did not attend the examination, on September 14, 2022, the respondent maintained its denial. Since the applicant did not attend the s. 44 insurer examination, the respondent submits that she is statute barred from proceeding with her claim.
38I find that the medical and other reasons provided by the respondent when it requested that the applicant attend an examination with Dr. Soric are compliant with the Schedule. In its letter dated August 5, 2022, the respondent advised the applicant that the treatment plan was not reasonable and necessary as the medical documentation on file (including the clinical notes and records of the applicant’s family physician from November 16, 2018 to November 1, 2019, a s. 25 occupational therapy report dated March 2020, a s. 25 occupational therapy report dated August 6, 2020, a treatment confirmation form (OCF-23), and treatment plan dated May 31, 2019) does not indicate any issue with regards to ongoing physical pain due to the accident. The respondent noted that the applicant’s injuries were described as whiplash associated disorder (WAD 2) with complaint of neck pain with musculoskeletal signs, sprain and strain of thoracic spine, sprain and strain of lumbar spine, and headache. The respondent advised that it required an update on the applicant’s medical status to determine whether the treatment plan was reasonable and necessary as a result of the accident.
39The evidence supports a finding that the respondent provided sufficient details about the applicant’s condition forming the basis for its decision to deny the applicant’s entitlement to the treatment plan. I also find that the respondent identified information about the applicant’s condition that it did not have but required. The information provided to the applicant was sufficient to allow the applicant to make an informed decision to either accept or dispute the respondent’s decisions, in accordance with the Schedule and M.B.
40Accordingly, I find that the applicant is barred from proceeding with her claim for entitlement to the disputed treatment plan pursuant to s. 55(1)2 of the Schedule as she did not attend the s. 44 insurer examination with Dr. Soric.
The applicant is not entitled to $6,033.60 for occupational therapy services (Issue 3)
41I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for occupational therapy services is reasonable and necessary.
42The treatment plan dated August 24, 2022, in the amount of $6,033.60 proposes 10 occupational therapy sessions, provider travel time, provider mileage, communication, file research and file review, documentation and preparation of a comprehensive occupational therapy progress report, and completion of the treatment plan. The goals of the treatment plan are to maximize functional restauration and to address barriers impeding normal daily function. The functional goal is to return to activities of normal living.
43The applicant’s submissions regarding the reasonableness and necessity of this treatment plan are limited. While the applicant appears to rely on an occupational therapy submission letter dated August 24, 2022 completed by Sheila Don, an occupational therapist at Innovative Occupational Therapy Services, and the clinical notes and records of FunctionAbility from April 28, 2020 to July 19, 2021 and from July 3, 2020 to March 18, 2021, she does not explain how these records support a finding that the proposed treatment plan is reasonable and necessary.
44The respondent submits that the treatment plan for occupational therapy services is not reasonable and necessary. On September 4, 2022, the respondent advised the applicant that it did not agree to pay for the treatment plan because it was not reasonable and necessary. The respondent indicated that the medical information that it had at the time did not support the need for services from an occupational therapist. Further, since the accident, the applicant has completed high school as well as enrolled and attended a post-secondary educational program without the assistance of an occupational therapist.
45The respondent also states that a treatment plan on its own is not compelling evidence in support of a treatment plan, and that it must be accompanied by compelling, contemporaneous medical evidence (see: Stephen v. Unifund Assurance Company, 2022 CanLII 81514 (ON LAT)). The respondent notes that prior to 2023, the applicant had not provided clinical notes and records from her family physician beyond 2019.
46I find that the evidence does not support a finding that the treatment plan is reasonable and necessary. Ms. Don’s submission letter indicates that the applicant has not been provided with any proactive occupational therapy assessment or treatment since the accident; however, based on a review of the clinical notes and records from FunctionAbility, the applicant underwent occupational therapy treatment in 2020 and 2021. Therefore, Ms. Don’s assertion is not consistent with the medical evidence.
47I further find that the applicant has not met her burden of proving that the disputed treatment plan is reasonable and necessary. Although the applicant has included various medical records in the evidentiary record, she has not directed me to compelling, contemporaneous medical evidence to support that further occupational therapy treatment was reasonable and necessary in or around August 2022. It is well established that the applicant must direct me to the relevant evidence in support of her case and she cannot leave it to me to connect the dots and make the case for her. I cannot presume to know which evidence or portion thereof, if any, the applicant intended to rely on in advancing her case.
48Accordingly, the applicant is not entitled to the disputed treatment plan.
The applicant is not entitled to $5,553.97 for counselling services (Issue 4)
49I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for counselling services is reasonable and necessary.
50The treatment plan dated January 3, 2023, in the amount of $5,553.97 proposes 12 treatment sessions with a psychotherapist, provision of education to the applicant, communication/correspondence, documentation, completion of a comprehensive progress report, a reserve for funding equipment/devices and workbooks, a base line session to assess the applicant’s goal development and treatment planning, and completion of the treatment plan. The goals of the treatment plan are to manage and treat psycho-emotional and psycho-social impairments, to establish coping strategies, and to support activity reengagement. The functional goal is to return to activities of normal living.
51The applicant’s submissions regarding the reasonableness and necessity of this treatment plan are limited. The applicant states that she was prescribed medication by her family physician to address her mood difficulties, and she relies on a clinical note dated February 10, 2021 completed by Lori Katz, occupational therapist. However, the applicant does not refer me to any clinical note of her family physician, Dr. Mahreen Razzaq, to explain why the medication was prescribed and whether it was prescribed in connection with her accident-related injuries.
52The respondent submits that the treatment plan is not reasonable and necessary. On January 6, 2023, the respondent advised the applicant that it did not agree to pay for the treatment plan because it was not reasonable and necessary. The respondent noted that based on the clinical notes and records from the applicant’s family physician from August 23, 2017 to November 1, 2019, she did not report complaints of any ongoing mental health impairments related to the accident. Further, the applicant completed her high school education, she maintained her pre-accident grades, and she enrolled in post-secondary education. The respondent also requested that the applicant provide updated clinical notes and records from her family physician, for the period of November 2, 2019 to the present for review.
53I find that the applicant has not met her burden of providing that the disputed treatment plan is reasonable and necessary. Although the applicant has included various medical records in the evidentiary record, she has not directed me to compelling, contemporaneous medical evidence to support that she was experiencing an accident-related psychological impairment in or around January 2023. It is well established that the applicant must direct me to the relevant evidence in support of her case and she cannot leave it to me to connect the dots and make the case for her. I cannot presume to know which evidence or portion thereof, if any, the applicant intended to rely on in advancing her case.
54Further, I appreciate that the applicant included a neuropsychological report dated August 15, 2023 completed by Dr. Braganza, and that Dr. Braganza diagnosed the applicant with an unspecified depressive disorder and adjustment disorder with anxiety, resolving specific phobia (related to vehicular travel), and somatic symptom disorder with predominant pain. However, in her closing submissions, the applicant vaguely referenced Dr. Braganza’s report, and she did not expressly tie Dr. Braganza’s report to this treatment plan. Further, the applicant has not directed me to contemporaneous records documenting any psychological complaints or psychological impairments to support the findings in Dr. Braganza’s report, aside from the report itself. Moreover, Dr. Braganza heavily relies on the applicant’s self-reporting instead of objective and contemporaneous records documenting any psychological complaints or psychological impairments.
55Accordingly, I find that the applicant has not established that the treatment plan is reasonable and necessary.
The applicant is barred from claiming $4,289.85 for occupational therapy services (Issue 5)
56I find that the applicant is barred from proceeding with her claim for the treatment plan for occupational therapy services (incorrectly identified as physiotherapy services in the issues in dispute) because she failed to dispute the respondent’s denial within the timeframe prescribed by s. 56 of the Schedule.
57The treatment plan dated January 22, 2020, in the amount of $4,286.85 proposes 10 in-home occupational therapy sessions, provider travel time, documentation, brokerage/service, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to assess and monitor the applicant’s cognitive difficulties, to provide education and facilitate implementation of cognitive strategies (i.e. memory, attention), to assess the need for adaptive equipment, to facilitate a return to basic daily routines and re-activate the applicant at her own pace, and to address barriers to return to meaningful activity at home and in the community. The functional goals are to review pain management, safe body positioning, energy conservation, and pacing to maximize activity tolerance, to monitor and provide education on emotional health and well-being, to monitor the applicant’s return to school and assist her in advocating for accommodations if needed, and to provide education on and facilitate implementation of sleep hygiene strategies.
58The applicant does not explain why this treatment plan is reasonable and necessary, and she has not directed me to the evidence she believes supports her entitlement to this treatment plan. Further, she does not address the fact that she disputed her entitlement to this treatment plan more than two years after the respondent’s refusal to pay, nor does she make submissions relating to an extension of the limitation period pursuant to s. 7 of the LAT Act.
59The respondent submits that the applicant is barred from proceeding with her claim for entitlement to this treatment plan because she failed to dispute the respondent’s denial within the timeframe prescribed by s. 56 of the Schedule. On April 7, 2020, the respondent advised the applicant that it did not agree to pay for the treatment plan because it was not reasonable and necessary. The respondent indicated that the treatment plan was not supported by the medical information that had been provided, and it was deemed to be a duplication of service. Since the applicant did not dispute the denial until February 2024, the respondent submits that the applicant is statute barred from proceeding with her claim.
60I find that the evidence supports a finding that the applicant is barred from proceeding with her claim for entitlement to the treatment plan. The two-year limitation period prescribed at s. 56 of the Schedule commenced when the respondent refused to pay for the treatment plan on April 7, 2020. Taking into account the suspension of the limitation period for the period of March 16, 2020 to September 14, 2020 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, O. Reg. 73/20, the applicant had until September 14, 2022 to dispute the respondent’s denial. Since the applicant did not dispute this denial until February 15, 2024, I find that the applicant did not dispute her claim within the prescribed time limit.
61Accordingly, the applicant is barred from proceeding with her claim for entitlement to this treatment plan.
The applicant is barred from claiming $3,574.68 for speech-language therapy (Issue 6)
62I find that the applicant is barred from proceeding with her claim for the treatment plan for speech-language therapy (incorrectly identified as physiotherapy services in the issues in dispute) because she failed to dispute the respondent’s denial within the timeframe prescribed by s. 56 of the Schedule.
63The treatment plan dated June 11, 2020, in the amount of $3,574.68 proposes 10 telehealth sessions with a speech-language pathologist, two in-home sessions with a speech-language pathologist, provider travel time, documentation, team communication, protective personal equipment, and completion of the treatment plan. The goals of the treatment plan are to provide cognitive communication compensatory strategies to improve auditory comprehension, attention, verbal expression executive functions, problem solving, pragmatics and memory. The functional goals are to improve future employability, progress at school, and independence.
64The applicant submits that the treatment plan is reasonable and necessary, and she relies on a speech-language pathology assessment report dated June 11, 2020 completed by Darcy Roza, speech-language pathologist. In her report, Ms. Roza indicated that since the accident, the applicant has demonstrated changes in her language and cognitive-communication abilities, and that the assessment findings corroborated the applicant’s subjective complaints. Ms. Roza concluded that the applicant would benefit from speech-language intervention, as well as education and training in use of compensatory strategies, which will result in an increase in independence. She recommended weekly interventions for the first three months and then to re-evaluate thereafter.
65The applicant does not address the fact that she disputed her entitlement to this treatment plan more than two years after the respondent’s refusal to pay, nor does she make submissions relating to an extension of the limitation period pursuant to s. 7 of the LAT Act.
66The respondent submits that the applicant is barred from proceeding with her claim for entitlement to this treatment plan because she failed to dispute the respondent’s denial within the timeframe prescribed by s. 56 of the Schedule. On June 26, 2020, the respondent advised the applicant that it did not agree to pay for the treatment plan because it was not reasonable and necessary. The respondent also requested that the applicant attend a s. 44 insurer examination with Dr. Lawrence Tuff, psychologist, on July 7, 2020. The applicant took issue with the respondent’s choice of specialty, and she did not attend the examination. On July 11, 2020, the respondent maintained its denial, noting that the applicant had not attended the examination. Since the applicant did not dispute the denial until February 2024, the respondent submits that the applicant is statute barred from proceeding with her claim.
67I find that the evidence supports a finding that the applicant is barred from proceeding with her claim for entitlement to the treatment plan. The two-year limitation period commenced when the respondent refused to pay the treatment plan on June 26, 2020, and the applicant had until September 14, 2022 to dispute the respondent’s denial. Since the applicant did not dispute the denial until February 15, 2024, I find that the applicant did not dispute her claim within the prescribed time limit.
68Accordingly, the applicant is barred from proceeding with her claim for entitlement to this treatment plan.
The applicant is barred from claiming $4,464.36 for speech-language therapy (Issue 7)
69I find that the applicant is barred from proceeding with her claim for the treatment plan for speech-language therapy (incorrectly identified as physiotherapy services in the issues in dispute) because she failed to dispute the respondent’s denial within the timeframe prescribed by s. 56 of the Schedule.
70The treatment plan dated January 15, 2021, in the amount of $4,464.36 proposes four telehealth sessions with a speech-language pathologist, eight in-home sessions with a speech-language pathologist, provider travel time, documentation, team communication, and completion of the treatment plan. The goal of the treatment plan is to provide education and opportunity to practice cognitive-communication compensatory strategies to improve her communication skills. The functional goals of the treatment plan are to improve progress at school, future employability, and independence.
71The applicant’s submissions regarding the reasonableness and necessity of this treatment plan are limited. Generally, she submits that the treatment plan is reasonable and necessary and relies on Ms. Roza’s report dated June 11, 2020. The applicant does not address the fact that she disputed her entitlement to this treatment plan more than two years after the respondent’s refusal to pay, nor does she make submissions relating to an extension of the limitation period pursuant to s. 7 of the LAT Act.
72The respondent submits that the applicant is barred from proceeding with her claim for this treatment plan because she failed to dispute the respondent’s denial within the timeframe prescribed by s. 56 of the Schedule. On February 22, 2021, the respondent advised the applicant that it did not agree to pay for the treatment plan because it was not reasonable and necessary. The respondent also noted that it had previously requested that she attend a s. 44 insurer examination on July 7, 2020 to determine whether speech-language therapy was reasonable and necessary due to the accident and that she did not attend the examination. The respondent invited the applicant to reschedule the July 7, 2020 examination, but the applicant did not request to reschedule the examination. Since the applicant did not dispute the denial until February 2024, the respondent submits that the applicant is statute barred from proceeding with her claim.
73I find that the evidence supports a finding that the applicant is barred from proceeding with her claim for entitlement to the treatment plan. The two-year limitation period commenced when the respondent refused to pay the treatment plan on February 22, 2021, and the applicant had until February 22, 2023 to dispute the respondent’s denial. Since the applicant did not dispute the denial until February 15, 2024, I find that the applicant did not dispute her claim within the prescribed time limit.
74Accordingly, the applicant is barred from proceeding with her claim for entitlement to this treatment plan.
The applicant is not entitled to $2,200.00 for an occupational therapy assessment (Issue 8)
75I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for an occupational therapy assessment is reasonable and necessary.
76The treatment plan dated August 24, 2022, in the amount of $2,200.00 proposes a direct comprehensive occupational therapy assessment and completion of the treatment plan. The goal of the treatment plan is to complete a comprehensive occupational therapy functional assessment. The functional goal is to return to activities of normal living.
77The applicant states that she previously underwent an occupational therapy assessment, and that a further assessment, two and a half years later, is reasonable and necessary. She further states that the Assessment of Attendant Care Needs (Form 1) dated October 21, 2022 outlines her attendant care needs. According to the Form 1, the applicant requires assistance with dressing and undressing, grooming, feeding, hygiene, basic supervisory care, co-ordination of attendant care, bathing, and maintenance of supplies and equipment.
78The respondent submits that the treatment plan is not reasonable and necessary. On September 4, 2022, the respondent advised the applicant that it did not agree to pay for the treatment plan because it was not reasonable and necessary. The respondent indicated that the medical documentation on file (including the clinical notes and records of the applicant’s family physician from November 16, 2018 to November 1, 2019, a s. 25 occupational therapy report dated March 2020, and a s. 25 occupational therapy report dated August 6, 2020) did not support that she requires the assistance of monthly attendant care services.
79I find that the applicant has not met her burden of proving that the treatment plan is reasonable and necessary. Although the applicant has included various medical records in the evidentiary record, she has not directed me to compelling, contemporaneous medical evidence to support that an occupational therapy assessment was reasonable and necessary in or around August 2022. Further, while the applicant underwent occupational therapy in 2020 and 2021, the applicant has not directed me to a progress report following this treatment, nor does she explain why an occupational therapy assessment a year later is reasonable and necessary. It is well established that the applicant must direct me to the relevant evidence in support of her case and she cannot leave it to me to connect the dots and make the case for her. I cannot presume to know which evidence or portion thereof, if any, the applicant intended to rely on in advancing her case.
80Accordingly, I find that the applicant is not entitled to the treatment plan.
The applicant is not entitled to $2,000.00 for a mental health driving assessment (Issue 9)
81I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for a mental health driving assessment is reasonable and necessary.
82The treatment plan dated December 28, 2022, in the amount of $2,000.00 proposes a mental health driving assessment with a social worker and completion of the treatment plan. The goal of the treatment plan is to conduct a driving phobia/anxiety-specific assessment to assist the applicant with managing symptoms through appropriate treatment. The functional goal is to return to activities of normal living.
83The applicant does not explain why this treatment plan is reasonable and necessary, and she has not directed me to the evidence she believes supports her entitlement to this treatment plan.
84The respondent submits that the treatment plan is not reasonable and necessary. On January 6, 2023, the respondent advised the applicant that it did not agree to pay for the treatment plan as it was not reasonable and necessary, and that it was a duplication of service. Further, based on the driver-passenger reintegration program treatment progress re-assessment #2 discharge report dated August 6, 2020 completed by Deborah Melamed, occupational therapist, the applicant previously underwent a driving assessment and treatment, and she no longer requires driving rehabilitation sessions. Ms. Melamed indicated in her report that the applicant was a competent driver, that she was aware of her anxiety symptoms, and that she was able to use strategies to manage her anxiety symptoms and to move past them as they arise.
85I find that the applicant has not met her burden of proving that the treatment plan is reasonable and necessary. Although the applicant included various medical records in the evidentiary record, she has not directed me to compelling, contemporaneous medical evidence to support that the treatment plan is reasonable and necessary. It is well established that the applicant must direct me to the relevant evidence in support of her case and she cannot leave it to me to connect the dots and make the case for her. I cannot presume to know which evidence or portion thereof, if any, the applicant intended to rely on in advancing her case.
86Accordingly, the applicant is not entitled to the disputed treatment plan.
The applicant is not entitled to $2,200.00 for a direct functional cognitive assessment (Issue 10)
87I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan for a direct functional cognitive assessment is reasonable and necessary.
88The treatment plan dated January 9, 2023, in the amount of $2,200.00 proposes an occupational therapy functional cognitive assessment, and completion of the treatment plan. The goal of the treatment plan is to complete a comprehensive cognitive assessment. The functional goal is to return to activities of normal living.
89The applicant does not explain why this treatment plan is reasonable and necessary, and she has not directed me to the evidence she believes supports her entitlement to this treatment plan.
90The respondent submits that the treatment plan is not reasonable and necessary. On January 20, 2023, the respondent advised the applicant that it did not agree to pay for the treatment plan as it was not reasonable and necessary. The respondent indicated that based on the clinical notes and records of the applicant’s family physician for the period of November 16, 2018 to November 1, 2019, the applicant did not report complaints on any ongoing cognitive impairments related to the accident. Further, since the accident, she completed high school, she maintained her pre-accident grades, and she enrolled and attend post-secondary education. The respondent requested that the applicant provide updated clinical notes and records from her family physician for the period of November 2, 2019 to the present for review and advised that upon receipt of the updated records, it would reschedule the s. 44 insurer examinations that she previously failed to attend to address her ongoing entitlement to medical and rehabilitation benefits.
91I find that the applicant has not met her burden of proving that the treatment plan is reasonable and necessary. Although the applicant included various medical records in the evidentiary record, she has not directed me to compelling, contemporaneous medical evidence to support that the treatment plan is reasonable and necessary. It is well established that the applicant must direct me to the relevant evidence in support of her case and she cannot leave it to me to connect the dots and make the case for her. I cannot presume to know which evidence or portion thereof, if any, the applicant intended to rely on in advancing her case.
92Accordingly, the applicant is not entitled to the disputed treatment plan.
Interest
93Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, no interest is payable.
Award
94Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As I have concluded that the applicant is not entitled to a NEB or to the disputed treatment plans, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.
ORDER
95For the reasons outlined above, I find that:
The applicant is barred from proceeding with her claim for a NEB.
The applicant is barred from proceeding with her claim for entitlement to the treatment plans identified as Issues 2, 5, 6, and 7 above. The applicant is not entitled to the balance of the treatment plans in dispute.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
96The application is dismissed.
Released: March 24, 2025
__________________________
Ludmilla Jarda
Adjudicator