Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-004272/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:
Yuliet Marqueti Kelly
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Dayana Soto Santana, Paralegal
For the Respondent: Michal Baura, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yuliet Marqueti Kelly, the applicant, was involved in an automobile accident on October 2, 2022, 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, Aviva Insurance Canada, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from October 30, 2022 to October 2, 2024?
ii. Is the applicant entitled to $2,460.00 for a functional cognitive assessment proposed by 101 Assessment Centre in a treatment plan/OCF-18 (“plan”) submitted on March 17, 2023?
iii. Is the applicant entitled to $897.00 ($3,970.70 less $2,893.04 approved) for psychological services, proposed by 101 Assessment Centre in a plan submitted on January 11, 2023?
iv. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payments?
RESULT
3The applicant is not entitled to a non-earner benefit.
4The applicant is not entitled to $2,460.00 for a functional cognitive assessment proposed by 101 Assessment Centre.
5The applicant is not entitled to $897.00 for psychological services proposed by 101 Assessment Centre.
6The respondent is not liable to pay an award.
7The applicant is not entitled to interest.
ANALYSIS
Is the applicant entitled to a non-earner benefit?
8I find the applicant has not met her burden to demonstrate she is entitled to a non-earner benefit for the period in dispute.
9Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result 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. Section 37(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 NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focusses on a comparison of the applicant’s pre- and post-accident activities.
10The applicant states she has suffered a complete inability to carry on a normal life due to her extreme pain and psychological impairments. The applicant relies on the psychological assessment and reassessment reports, the orthopaedic assessment, the family doctor’s clinical notes and records (CNRs), x-ray and the Disability Certificate/OCF-3 dated October 7, 2022.
11The applicant’s complaints are pains in her neck, back, wrist, knee, chest and joints, muscular in-coordination, depression, headaches, and dizziness, problems with concentration and memory, and nightmares. The applicant states she was never hospitalized for mental health issues or prescribed psychotropic medication.
12I have reviewed the CNRs of 101 Physio for the period of October 3, 2022 to December 4, 2023. The physiotherapist’s CNRs show the applicant attended her appointments and noted pre-existing arthritis. The applicant complained of difficulty lifting, carrying, bending, twisting, leaning, and attending to her pre-accident activities such as laundering, vacuuming, mopping, bed making and dressing since the accident.
13I have also reviewed the CNRs of Dr. Andrew Lata, physician, of Albany Medical Clinic for the period of June 2022 to May 2023 where the applicant visited four times during this period. Five months prior to the accident the doctor discussed “quad strengthening exercises” and noted left knee complaints for months. The applicant was wearing a knee brace and had full range of motion. Two weeks after the accident the doctor prescribed physiotherapy, Naprosyn, Pariet, Flexeril with 1 refill each after 14 days. On April 27, 2023 it was again noted the applicant was in an accident and she had knee and back pain and an x-ray confirmed there were no fractures and noted “bilateral and relatively mild tricompartmental osteoarthritis”.
14I find the CNRs establish that the applicant has suffered knee pain before the accident and the applicant managed her ongoing pains through physiotherapy with home-based exercises. The applicant demonstrated full range of motion in her knee and was doing home-based exercise to strengthen the area around her knee. I find the CNRs of the family physician do not establish the applicant’s pre-accident activities were affected or that there was an impairment affecting her post-accident activities as a result of the accident and her pains were more likely due to her existing arthritis.
15The applicant relies on the Disability Certificate/OCF-3 dated October 2, 2022 prepared by Dr. Bill Nikols, chiropractor of 101 Physio. The OCF states the applicant suffered injury of muscle and tendon at the neck, sprain and strain of lumbar and thoracic spine, dislocation, sprain and strain of joints and ligaments or lumbar spine and pelvis, knee, wrist and hand, chest pain, headache, dizziness, sleep disorder, reaction to stress. The recovery period is listed as 9 to 12 weeks. I find the OCF-3 is not corroborated by the notes and findings of the applicant’s primary care physician and provides little weight in proving the applicant suffered a complete inability to carry on normal life.
16The applicant also relies on the psychological assessment report dated January 6, 2023 prepared by Dr. Konstantinos Papazoglou, psychologist, of 101 Assessments. Dr. Papazoglou noted the applicant sustained injuries to her lower back and knees and experiences frequent headaches. Dr. Papazoglou noted the applicant previously cooked, cleaned, did laundry, went for walks and socialized with friends. Dr. Papazoglou stated the applicant “used to engage in housekeeping chores … she has resumed engaging in light duties” with the support of her children due to pain and physical restriction and the applicant is “somewhat independent with matters of self-care” requiring additional time to complete her self-care. Dr. Papazoglou noted the applicant is withdrawn socially and assessed her “in the moderate range category for depression” and anxiety. The report noted the applicant drives for short distances. Dr. Papazoglou prepared an additional report dated September 5, 2023 and diagnosed the applicant with adjustment disorder and a specific phobia of driving. I find the psychological assessment report suggests the applicant has demonstrated she has withdrawn somewhat socially, however, she continues to participate in her activities of daily living, such as self-care and light housekeeping chores.
17The applicant relies on the independent orthopaedic medical examination report dated March 11, 2023 prepared by Dr. Tajedin Getahun, orthopaedic surgeon, of 101 Assessments. Dr. Getahun noted the applicant had myofascial strain of the cervical spine and lumbosacral spine and aggravation of pre-existing pathology with nonverifiable radicular symptomology and bilateral knee patellofemoral syndrome. The report states the applicant has “curtailed socializing” and driving and she continues with her housekeeping chores with assistance from her children. I am not persuaded the medical examination report establishes the applicant has suffered a complete inability to carry on normal life. The CNRs and the psychological assessment describe the patient as capable of performing normal activities that include her independent self-care routine and noted she also performs light housekeeping chores as part of her normal activities that includes carrying lighter loads, light house keeping, and laundry.
18The respondent submits the applicant looks after herself, stands and walks while carrying light items and does light housekeeping chores such as laundry and cleaning and receives help from her children in completing some tasks. The respondent relies on the s. 44 psychology assessment dated December 8, 2022 prepared by Dr. Godwin Lau, psychologist. Dr. Lau’s review also included a review of the OCF-3 prepared by Dr. Nikols. Dr. Lau noted the applicant “can look after her self-care tasks”, “can carry light items” and “does light housework”. Dr. Lau diagnosed the applicant with specific phobia as a result of the accident. Dr. Lau’s report suggests the applicant is able to continue with her self-care and her knee pains are a result of a pre-existing injury. I find the applicant’s pre-existing injury and arthritis is the probable cause of her knee pain and she has not demonstrated that she suffers a complete inability to carry on normal life.
19The respondent submits the applicant drives herself as needed, carries light items, prepares meals, washes dishes, does household cleaning including laundry. The respondent relies on the general practitioner assessment prepared by Dr. Howard Platnick, general practitioner, dated March 7, 2023 as part of a s. 44 multidisciplinary report. In his report, Dr. Platnick noted the applicant “reported 90% improvement since the October 2, 2022 motor vehicle accident.” The applicant argues that she was asked to perform tasks during the examination and refused to do so because she could not bend over. The applicant did not provide any submission to support this claim, so I am unable to consider it in greater detail.
20I find Dr. Platnick’s report suggests the applicant has responded well to her physiotherapy treatments to date and the applicant has resumed much of her normal daily activities such as self-care and household chores albeit with some support from her family. Dr. Platnick also noted the applicant is “independent with self-care activities, including brushing teeth, washing hair, bathing, toileting, dressing/undressing, feeding, and transfers.” Dr. Platnick noted the applicant is “now at a pre-accident state” and he “did not identify accident-related injury or impairment that would cause [the applicant] to suffer a complete inability to carry on a normal life.”
21I have reviewed the OCF-3, the CNRs from Albany Medical Centre and Bio-Health Centre, 101 Physio, and 101 Assessments. I have also reviewed the reports from Dr. Papazoglou, Dr. Lau, and Dr. Platnick. In sum, I find the applicant has not demonstrated she has suffered a complete inability to carry on with a normal life. While I am alive to the applicant’s condition, she has been receiving support from her children with some of her household chores and has remained independent in her self-care routine. I find the applicant has not met the burden of proving she is entitled to a non-earner benefit for the period in dispute.
Is the treatment plan for $2,460.00 for a cognitive assessment reasonable and necessary?
22I find on a balance of probabilities the applicant has not demonstrated that the functional cognitive assessment plan in dispute is reasonable and necessary.
23To receive payment for a treatment plan under sections 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.
24The functional cognitive assessment submitted by 101 Assessment Centre prepared by occupational therapist Mr. Remik Zakrzewski for $2,460.00 is meant to address the applicant’s injury of muscle and tendon at neck level, sprain and strain of lumbar spine, thoracic spine, joints and ligaments of lumbar spine and pelvis, ligaments of knee, ligaments at wrist and hand, chest pain, headache, dizziness, sleep disorder, stress and adjustment disorders. The goal for the plan is to assess the applicant’s level of cognitive function and investigate potential cognitive deficits.
25The applicant states she is experiencing migraines, headaches, is light sensory and has problems concentrating which has limited her day-to-day activities. She relies on the psychological assessment and reassessment, the orthopaedic assessment, and the family doctor’s CNRs which I have reviewed.
26The respondent submits there is no need for a functional cognitive assessment as the applicant’s concerns have resolved and the assessment is not reasonable or necessary. The respondent relies on the neurology report prepared by Dr. Jamsheed Desai.
27I find Dr. Desai’s s. 44 report dated June 1, 2023 calls into question the need for a cognitive assessment. I prefer Dr. Desai’s assessment because the results of his testing demonstrated how the applicant meets the criteria for “headache secondary to trauma to the neck”. Dr. Desai concluded “no further investigations … [is] necessitated from a neurologic point of view.” I find Dr. Desai’s neurology assessment is consistent with the CNRs of Dr. Dr. Lata and calls into question what benefit this assessment could provide for the applicant.
28Dr. Papazoglou noted the applicant suffered from headaches in his report of January 6, 2023 and the treatment plan was submitted in March 17, 2023. Based on his assessment Dr. Desai’s report in June stated, “the neurologic impairment has resolved” and he anticipates “that maximal recovery will occur within the next 1 – 2 months.” While I am alive to the applicant’s ongoing headaches, the CNRs of the Albany Medical Clinic or Bio Health Center do not establish the applicant’s need for a further cognitive assessment.
29I find on a balance of probabilities the treatment plan for a cognitive assessment in dispute is not reasonable or necessary at this time. I am persuaded by Dr. Desai’s neurology report that suggests the applicant’s headaches can be treated through over-the-counter medicines.
Is the treatment plan for $897.00 ($3,970.70 less $2,893.04 approved) for psychological services reasonable and necessary?
30I find the applicant is not entitled to the remaining $897.00 for the treatment plan in dispute.
31The treatment plan submitted by 101 Assessment Centre prepared by Dr. Papazoglou for $3,970.70 is meant to address the applicant’s injury of muscle and tendon at neck level, sprain and strain of lumbar spine, dislocation, sprain, strain or joints and ligaments of lumbar spine and pelvis, knee, wrist and hand level, chest pain, headache, dizziness, sleep disorder, stress and adjustment disorders. The goal for the plan is pain reduction, reduce depressive symptomology, return to activities of daily living and will be evaluated through clinical observation, monitoring, and re-assessment. The treatment plan was partially approved for $2,893.04 leaving $897.00.
32The respondent states the treatment was partially approved and the remaining $897.00 consists of $299.22 for mental health assessment, and $598.44 for a progress report. The respondent argues the fees do not comply with the Professional Services Guideline and a progress report was not requested.
33The applicant states there is a need for improvement in her life regarding her pain management, low mood, and anxiety that impacts her daily life functioning. The applicant relies on Dr. Papazoglou’s recommendation for the treatment plan. The applicant has not submitted evidence in support of the mental health assessment or the progress report.
34I find the applicant has not, on a balance of probabilities, demonstrated why these charges in the treatment plan are reasonable and necessary.
Award
35The 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 Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
36I find an award is not appropriate. The onus is on the applicant to prove, on a balance of probabilities, that the insurer’s conduct was “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate to justify an award” under s. 10. While I am alive to the applicant’s position, I agree with the respondent that the denials were based on medical evidence and opinion. Accordingly, this does not constitute unreasonable withholding or delay of payment. As a result, no award is payable.
Interest
37As no benefits are owing the applicant is not entitled to interest.
ORDER
38The applicant is not entitled to non-earner benefits.
39The applicant is not entitled to:
i. $2,460.00 for a functional cognitive assessment proposed by 101 Assessment Centre.
ii. $897.00 for psychological services proposed by 101 Assessment Centre.
40The applicant is not entitled to an award under s. 10 of Reg. 664 because no payments were unreasonably withheld or delayed.
41As there are no overdue benefits, the applicant is not entitled to interest.
42The application is dismissed.
Released: May 08, 2025
Aric Bhargava Adjudicator