Morris v. The Commonwell Mutual Insurance Group, 2025 CanLII 28466

Citation: Morris v. The Commonwell Mutual Insurance Group, 2025 ONLAT 22-006398/AABS

Licence Appeal Tribunal File Number: 22-006398/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.

Parties

Between:

Lana Morris

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

Decision

ADJUDICATOR: Kieffer Norton

APPEARANCES:

For the Applicant: Sherilyn Pickering, Counsel

For the Respondent: Cecil Jaipaul, Paralegal

HEARD: In Writing

OVERVIEW

1Lana Morris, the applicant, was involved in an automobile accident on February 24, 2020, 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, Insurer, 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 Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit? [note: the parties agreed that the MIG limits have been exhausted.]

ii Is the applicant entitled to $2,200.00 for psychological services proposed by Fox Psychological services in an OCF-18/treatment plan (“treatment plan”) dated September 21, 2021?

iii Is the applicant entitled to $3,902.88 for chiropractic services proposed by Barrie Core Wellness in a treatment plan dated October 2, 2020?

iv Is the applicant entitled to $3,271.35 for chiropractic services proposed by Barrie Core Wellness in a treatment plan dated May 5, 2022?

v Is the applicant entitled to $3,892.85 for chiropractic services proposed by Barrie Core Wellness in a treatment plan dated November 5,2022 ?

vi Is the applicant entitled to interest on any overdue payments?

vii Is the respondent liable to pay an award under s.10 of Reg. 664 because it unreasonably held or delayed payments to the applicant.

RESULT

3The applicant withdrew the MIG issue, above, as the respondent removed the applicant from the MIG. I therefore do not need to decide this issue as it is no longer in dispute between the parties.

4The applicant is entitled to:

i The applicant is entitled to $2,200.00 for a psychological assessment from Fox Psychological services in a treatment plan dated September 21, 2021;

ii $3,902.88 for chiropractic services in a treatment plan dated October 2, 2020; and

iii Interest for overdue benefits for the above two treatment plans in accordance with s. 51 of the Schedule.

5The applicant is not entitled to the following:

i $3,271.35 for chiropractic services proposed by Barrie Core Wellness in a treatment plan dated May 5, 2022.

ii $3,892.85 for chiropractic services proposed by Barrie Core Wellness in a treatment plan dated November 5, 2022.

iii An award under s.10 of Reg 664.

PROCEDURAL ISSUES

6On December 21, 2023, the respondent filed a notice of motion seeking to an extension of time to serve and file its written submissions, and a request for an adjournment of the written hearing. Both requests were denied by Vice Chair Lake by Order dated December 22, 2023.

7On December 22, 2023, after receiving the Tribunal’s Order, the respondent filed their submissions with the Tribunal.

8The applicant brought a motion on January 10, 2024, requesting the Tribunal to disregard the respondent’s submissions as they had been late-filed. In the alternative, she sought an order for the submission of the applicant’s reply 7 days from the date of the Tribunal’s Order. The applicant submitted her reply on January 24, 2024.

9The respondent submits that there had been a high level of cooperation between the parties, that their submissions were not filed deliberately late, and that the late submissions would not prejudice the applicant’s ability to formulate reply submissions in any meaningful way.

10The respondent argues that under Rule 3.1 of the Tribunal’s Rules, the Tribunal can interpret rules to facilitate a fair, open and accessible process to allow effective participation by all parties. The respondent submits that the parties have had maximum cooperation throughout this process.

11The respondent submits that under s. 15(1)(b) of the Statutory Powers Procedure Act, RSO 1990, c S.22, documents relevant to the issues in the dispute are admissible as evidence and its submissions should be taken into consideration.

12I find that the respondent would be too greatly prejudiced should their submissions not be allowed. Given that the applicant was able to file reply submissions, I do not find that any prejudice to the applicant outweighs the prejudice to the respondent if the latter’s submissions were not considered. I therefore dismissed the applicant’s motion to exclude the respondent’s submissions and I considered the applicant’s reply submissions of January 24, 2024.

ANALYSIS

13To receive payment for a treatment 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 as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

The applicant is entitled to $2,200.00 for the psychological assessment in the treatment plan dated September 21, 2021

14I find that the applicant has established that a psychological assessment is reasonable and necessary.

15The purpose of an assessment is to determine whether a condition exists. The applicant also bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

16On September 16, 2021, the applicant underwent an intake assessment by psychological associate Jiha Humayun of Fox Psychological Services. Ms. Humayun opined that the applicant was struggling emotionally and cognitively and was experiencing significant dysfunction. I agree with the applicant that the goal of the assessment is to address her current emotional state and the need for treatment. The goal of the assessment is to address the applicant’s current emotional state.

17The applicant submits that a psychological assessment is reasonable and necessary. I agree with the applicant that the assessment is reasonable in its cost

18I find that the clinical notes and records from Dr. Friesen contain references of cognitive and behavioural limitations in six different “Treating Professional Statements” between January and march of 2021. On august 31 Dr. Freisen indicated that the applicant was having headaches and dizziness since the accident.

19On December 30, 2020, the applicant underwent a CT scan because of headaches. On January 4, 2021, Dr. Freisen opined that the applicant was unable to work due to depression, anxiety and mood swings. Dr. Friesen opined that the applicant had cognitive limitations in concentration and communication due to anxiety and depression.

20Dr. Friesen also opined on February 25, 2021 and March 26, 2021 that the applicant was still experiencing depression.

21The respondent submits that there has been no diagnosis of psychological sequalae as result of the accident. They note that Dr. Friesen would have recommended the applicant to a specialist had sequalae existed.

22I am persuaded by the clinical notes and records of Dr. Friesen and the intake interview of Ms. Fox because they both state that the applicant is suffering from some psychological impairment since the date of the accident. Furthermore, I do not have any evidence before me that references the applicant was suffering from psychological impairments prior to the accident. Thus, I find that I find on a balance of probabilities that the applicant is suffering from a psychological impairment as a result of the accident.

23I find that that the treatment plan for a psychological assessment is necessary to address the psychological impairments as a result of the accident.

The applicant is entitled to the chiropractic treatment plan for $3,902.88 dated October 2, 2020

24I find the applicant has established that the chiropractic treatment plan from Barrie Core Wellness for $3,902.88 is reasonable and necessary.

25The goal of the treatment plan is to reduce pain, increase strength, range of motion and to conduct post-concussion syndrome testing. The functional goals are to return the applicant to pre-accident levels of daily and work activities. The treatment plan consists of 24 sessions of chiropractic treatment, 15 sessions of massage therapy and 24 sessions of kinesiology.

26The applicant relies on the clinical notes and records of Dr. Friesen dated February 25, 2020 and March 3, 2020 that prescribe physiotherapy and chiropractic therapy as well as a note to be off of work.

27The applicant was diagnosed with cervicothoracic strain on February 25, 2020 and at the March 3, 2020 appointment with Dr. Friesen the applicant was diagnosed with upper back pain and prescribed physiotherapy.

28The applicant submits that on April 14, 2020, she was assessed at Barrie Core Wellness and that vertebral subluxations were observed as well as a reduced range of motion.

29This assessment from Barrie Core Wellness aligns with the clinical notes and records of Dr. Friesen that prescribed physio and chiropractic treatment and provides a legitimate goal of helping the applicant return to work.

30The respondent submits that the OCF-18 from Barrie Core Wellness states that the applicant has developed significant family stress which are not related to the accident. This appears to be the respondents only submission on the OCF-18 dated October 2, 2020 and I note that the treatment plan does note post concussional syndrome, headaches and WAD3 with neurological signs as a result of the accident.

31I find on a balance of probabilities that the treatment plan dated October 2, 2020 is reasonable in its cost and necessary in its goals of helping the applicant return to the quality of life prior to the accident.

The applicant is not entitled to the chiropractic treatment plan for $3,271.35 dated May 5, 2022

32I find the applicant has not established on a balance of probabilities that she is entitled to $3,271.35 for chiropractic services proposed by Barrie Core Wellness in a treatment plan dated May 5, 2022.

33The goal of the treatment plan is to reduce pain, increase strength, range of motion. The functional goals are to return the applicant to pre-accident levels of daily and work activities. The treatment plan recommends 20 sessions of manipulation with a chiropractor, 20 exercise sessions and 10 massage therapy sessions.

34The applicant does not provide any evidence that would substantiate the need for chiropractic or physio treatment as a result from the accident. Nor do they provide an update of the applicant’s current level of rehabilitation and ongoing needs as a result of previous treatment plans.

35I find applicant has not provided supporting evidence that shows that the chiropractic and physio treatments already provided by Barrie Core Wellness have had an impactful result on improving the applicant’s condition.

36Therefore, I find that this treatment plan is not reasonable or necessary.

The applicant is not entitled to the chiropractic treatment plan for $3,892.85 dated November 5, 2022

37I find the applicant has not established on a balance of probabilities that she is entitled to $3,892.85 for chiropractic services proposed by Barrie Core Wellness in a treatment plan dated November 5, 2022.

38The goal of the treatment plan is to reduce pain, increase strength, range of motion. The functional goals are to return the applicant to pre-accident levels of daily and work activities.

39I find that the applicant has not submitted sufficient evidence with regards to the reasonableness and necessity of chiropractic and physio services from Barrie Core Wellness.

40The applicant submits that in addition to physio and chiropractic treatment, Barrie Core Wellness provided 20 mindfulness and brain rehabilitation sessions that are reasonable and necessary.

41The applicant submits that the brain rehabilitation services are both reasonable and necessary to reduce post concussion flare ups that resulted in a regression of her daily living activities.

42The applicant does not provide any evidence that the chiropractic and physio treatments provided by Barrie Core Wellness have had an impactful result on improving the applicant’s condition.

43As for the mindfulness and brain rehabilitation sessions, while the applicant provided Dr. Friesen’s clinical notes and records indicating that she had been diagnosed with depression, the applicant does not provide any evidence on how these mindfulness sessions would help to alleviate post-concussion symptoms or help treat the applicant’s depression, Moreover the applicant does not explain how these mindfulness sessions are connected to a chiropractic plan.

44The applicant does not provide any evidence that would substantiate the need for chiropractic or physio treatment as a result from the accident. Nor do they provide an update of the applicant’s current level of rehabilitation and ongoing needs as a result of previous treatment plans.

45Therefore, I find that this treatment plan is not reasonable or necessary.

Interest

46Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the chiropractic treatment plan dated October 2, 2020 and the treatment plan for a psychological assessment from dated September 21, 2021.

Award

47The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant submits that the respondent has unreasonably withheld payment of the benefits listed in the issues in dispute. While I find that some benefits are indeed owing, I find no evidence of any unreasonableness in the respondent’s actions, nor do I have any submissions before me as to any unreasonable actions taken by the respondent. I therefore find that the applicant is not entitled to an award.

ORDER

48For the reasons above, I find:

i The applicant is entitled to $3,902.88 for chiropractic services in a treatment plan dated October 2, 2020.

ii The applicant is entitled to $2,200.00 for a psychological assessment from Fox Psychological services in a treatment plan dated September 21, 2021.

iii The applicant is entitled to interest for any overdue payment of the two above benefits pursuant to section 51 of the Schedule.

iv The applicant is not entitled to the other chiropractic treatment plans listed in the issues in dispute.

v The applicant is not entitled to an award under s. 10 of Reg. 664.