Licence Appeal Tribunal File Number: 24-004862/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:
Bolanle Dada
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Caley Howard
APPEARANCES:
For the Applicant:
Ariane Wiseman, Counsel
For the Respondent:
Jonathan Schrieder, Counsel
Court Reporter:
Marcia Gardner
Heard by videoconference:
February 18-21, 2025
OVERVIEW
1Bolanle Dada, the applicant, was involved in an automobile accident on February 22, 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, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issue in dispute is:
i. Is the applicant barred from applying for a non-earner benefit (“NEB”) because she knew or ought reasonably to have known that she was operating the automobile while it was not insured under a motor vehicle liability policy, pursuant to section 31(1)(a)(i) of the Schedule?
3The parties advised me on the first day of the hearing that the preliminary issue, as worded in the Case Conference Report and Order, was incorrect and asked that it be replaced with the preliminary issue set out above.
SUBSTANTIVE ISSUES
4The substantive issues in dispute are:
i. Is the applicant entitled to an NEB of $185.00 per week from March 22, 2022, to date and on-going?
ii. Is the applicant entitled to $2,672.10 for chiropractic services, proposed by Malton Spine Clinic in a treatment plan/OCF-18 (“treatment plan”) dated October 7, 2022?
iii. Is the applicant entitled to $3,209.72 for chiropractic services, proposed by Malton Spine Clinic in a treatment plan dated January 20, 2023?
iv. Is the applicant entitled to $598.50 ($2,971.09 less $2,372.59 approved) for occupational therapy services, proposed by Health Bound in a treatment plan dated June 8, 2022?
v. Is the applicant entitled to $80.00 ($1,919.84 less $1,839.84 approved) for assistive devices, proposed by Health Bound in a treatment plan dated June 8, 2022?
vi. Is the applicant entitled to $3,209.72 for chiropractic services, proposed by Malton Spine Clinic in a treatment plan dated November 16, 2022?
vii. Is the applicant entitled to $2,776.10 for chiropractic services, proposed by Malton Spine Clinic in a treatment plan dated February 17, 2023?
viii. Is the applicant entitled to $2,971.09 for occupational therapy services, proposed by Health Bound in a treatment plan dated May 9, 2023?
ix. Is the applicant entitled to attendant care benefits (ACB) in the amount of $3,000.00 per month from August 1, 2022, to date and on-going?
x. Is the respondent entitled to terminate the payment of attendant care benefits because the applicant willfully misrepresented material facts with respect to her claim for attendant care benefits under s. 53 of the Schedule?
xi. Is the insurer entitled to a repayment of $3,000.00 relating to its payment of an Attendant Care Benefit for the period of July 14, 2022, to July 29, 2022?
xii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xiii. Is the applicant entitled to interest on any overdue payment of benefits?
5The applicant withdrew issue 10 as set out in the Case Conference Report and Order. Issue x. as set out above was extracted from the preliminary issue as set out in the Case Conference Report and Order, on the joint submissions of the parties. The parties submitted that Issues x. and xi. as set out above should be heard as preliminary issues. However, I find that they are properly heard as substantive issues because they deal with the termination and repayment of attendant care benefits respectively.
6I corrected the following inconsistencies between the issues as described in the Case Conference Report and Order and the evidence that was submitted to the Tribunal: issue ii. now refers to a treatment plan for chiropractic services, issue iii. now refers to a treatment plan with a submission date of January 20, 2023, issue v. now refers to a treatment plan for assistive devices, issue vii. Now refers to a treatment plan with a submission date of February 17, 2023, and issue viii. now refers to a treatment plan with a submission date of May 9, 2023.
RESULT
Preliminary Issue:
7I find that:
i. The applicant is barred from proceeding for her claim for an NEB.
Substantive Issues:
8I find:
i. The applicant is not entitled to proceed with her claim for an NEB and so is not entitled to an NEB;
ii. The applicant is not entitled to the treatment plans for chiropractic services dated October 7, 2022, January 20, 2023, February 17, 2023 or November 16, 2022;
iii. The applicant is not entitled to the treatment plans for occupational therapy services dated June 8, 2022 or May 9, 2023;
iv. The applicant is entitled to the treatment plan for assistive devices, dated June 8, 2022, which was partially approved and had a remaining amount in dispute of $80.00, plus interest;
v. The applicant is not entitled to an ACB;
vi. the respondent is entitled to a repayment of $3,000.00 on account of the ACBs paid to the appellant; and
vii. The respondent is not liable to pay an award under s. 10 or Reg. 664.
PROCEDURAL ISSUES
Motion to exclude respondent’s late-produced document
9On the first day of the hearing, the applicant sought to prevent the respondent from entering into evidence a letter dated October 29, 2021 from Desjardins to the applicant respecting billing information and pre-authorized payments, which the respondent produced on the first day of the hearing. The applicant submits that she had not seen the document prior to the first day of the hearing because she had not received the letter at the time it was sent. The applicant submits that she would be prejudiced by the inclusion of a document that was not produced in accordance with the document production deadlines set out in the Case Conference Report and Order (CCRO).
10The respondent submits that the document was relevant to the preliminary issue of whether the applicant knew, or ought to have known, that she was driving an uninsured vehicle at the time of the accident. The respondent submits that the document was produced in response to the applicant’s bank statement, which the applicant agreed was produced 21 days prior to the first day of the hearing and not in compliance with the document production deadlines set out in the CCRO. The respondent submits that the late production of the document was caused by the applicant’s own late production of documents and does not prejudice the applicant.
11I found that the document was produced in response to the applicant’s bank statement, which the applicant agreed she produced late. For this reason, and because the applicant did not specify why the late production would prejudice her, I ordered that the document would be entered into evidence. Because the document was produced on the day of the hearing, I gave the applicant 15 minutes to discuss the document with her counsel prior to commencing her testimony.
Motion to exclude surveillance evidence
12On the third day of the hearing, the applicant sought an order excluding all of the surveillance video, surveillance reports and all testimony related to the surveillance evidence on the basis that the respondent was not going to call the investigator, Jordan Barrett-Grey, to testify, despite having Mr. Barrett-Grey on its final witness list. I heard submissions from the parties and indicated I would reserve on the issue. I also requested that the parties provide me with additional submissions respecting the weight that should be given to the surveillance evidence if I decided not to exclude it. The issue became moot when the respondent produced Mr. Barrett-Grey for cross-examination.
ANALYSIS
Preliminary Issue
The applicant is barred from applying for an NEB
13I find that the applicant is barred from applying for an NEB because, at the time of the accident, she was operating a vehicle that she knew, or ought reasonably to have known, was not covered under a motor vehicle liability policy.
14Section 31(1)(a)(i) of the Schedule provides that an insurer is not required to pay an NEB in respect of a person who was the driver of an automobile at the time of the accident if the driver knew or ought reasonably to have known that he or she was operating the automobile while it was not insured under a motor vehicle liability policy. The respondent has the burden of proof.
15The parties agreed that the applicant’s vehicle was not insured at the time of the accident.
16The respondent submits that the applicant knew, or ought to have known, that her vehicle was not insured at the time of the accident. The respondent relies on two letters dated October 29, 2021. The first letter was a termination notice, which indicated that the applicant’s motor vehicle liability policy would be terminated as of November 29, 2021 if she did not pay $297.99 by noon on November 28, 2021. The second letter of October 29, 2021 indicates that following the cancellation of the policy, the amount of $505.97 will be withdrawn from the applicant’s account by preauthorized agreement on account of the amount due after termination.
17The applicant submits that she held a reasonable belief that she was insured at the time of the accident. The applicant agrees that she received the termination notice by email. She submits that she never received the second letter respecting the amount due after termination. In support of her position, she relies on a series of email correspondence with her insurance broker, Esther James, dated November 22 and 23, 2021, the applicant’s December 2021 bank statement, which shows an automatic withdrawal from her account in the amount of $505.97 on December 7, 2025, and the applicant’s testimony.
18The applicant testified that she received the termination notice and contacted her insurance broker, Ms. James, to continue her coverage. She further testified that when the amount of $505.97 was withdrawn from her account on December 7, 2025, she assumed that was for the continuation of her policy. She testified that the first time she understood that her policy had been terminated was after her accident, when she called to inform the respondent of her claim. She testified that she never received the second letter explaining that the withdrawal of $505.97 was the amount owing for past coverage.
19I find that the applicant’s belief that her insurance policy remained valid at the accident was not reasonable in the circumstances. I find that the termination notice contained clear instructions for the applicant to continue her policy. The termination notice indicates that payment of $297.99 must be delivered to the respondent’s office by noon of November 28, 2021 in order to continue the policy. Upon receipt of the termination notice, I find that the applicant contacted her insurance broker and that Ms. James provided her with clear instructions on how to continue her policy. Ms. James’ email of November 23, 2021 indicates that the applicant must make a payment of $297.99 by visa or mastercard to continue her policy and that the applicant can call Ms. James’ office and pay over the phone.
20I find that when the applicant did not follow either Ms. James’ directions or the directions set out in the termination letter by November 29, 2021, she reasonably ought to have known that her policy had been terminated. I find that the later withdrawal of $505.97 from her bank account may have caused the applicant some confusion if, as she testified, she never received the second letter of October 29, 2021. However, I find that it was not reasonable for her to interpret the withdrawal as a continuation of her policy because the preauthorized withdrawal was neither the correct amount nor the correct method of payment and it occurred after the termination date of November 29, 2021. In addition, the $505.97 withdrawal was a one-time occurrence. I find that it was not reasonable for the applicant to assume that she was still insured at the time of the accident when she made no further payments between early December 2021 and mid-February 2022.
21I find, on a balance of probabilities, that the applicant ought reasonably to have known that she was driving a vehicle that was not covered by a motor vehicle liability policy at the time of the accident. Pursuant to s. 31(1)(a)(i), the applicant is barred from applying for an NEB.
SUBSTANTIVE ISSUES
Entitlement to Attendant Care Benefits
22I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to ACBs.
23Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).
24The applicant submits that Mercie Home Care supplied her with attendant care services for 55 hours per week from July 4, 2022 to approximately July 2023 and that these services were reasonable and necessary as a result of the accident. In support of her submissions, the applicant relies on the invoices from Mercie Home Care for the period of July 4, 2022 to April 7, 2023, the Insurer’s Examination occupational therapy in-home assessment report of Arash Sasani, dated September 7, 2022, the occupational therapy in-home assessment reports of Jelena Milidragovic, dated May 30, 2022, March 10, 2023 and May 8, 2023, and the clinical notes and records of Dr. Olaniyi Ajisafe, the applicant’s family doctor, and the hospital records from July 7, 2022.
25The respondent submits that the applicant’s accident-related injuries, namely her broken collar bone, broken cuboid bone and soft tissue injuries, were healed by July 2022, when the applicant began receiving services from Mercie Home Care. Therefore, the respondent submits that the services were not reasonable and necessary as a result of the accident. In support of its submissions, the respondent relies on the reports of Dr. Howard Platnick, physician, dated September 7, 2022 and June 7, 2023, Dr. Platnick’s testimony, the January 17, 2023 progress note of Dr. Gregory Soon-Shiong, the applicant’s orthopaedic surgeon, and the surveillance video and reports.
26Both Ms. Milidragovic and Mr. Sasani assessed the applicant as requiring over $3,000 per month of attendant care. Therefore, there was no dispute as to the amount of the attendant care benefit to which the applicant claimed entitlement. Ms. Milidragovic, who testified at the hearing, agreed that as an occupational therapist, she was unable to make medical diagnoses or determine whether any of the applicant’s injuries or pain were as a result of the accident.
27The invoices indicate that the applicant began to incur monthly expenses for attendant care beginning on July 4, 2022 and continuing until April 7, 2023.
28The parties agreed that, prior to the accident, the applicant was a recipient of the Ontario Disability Support Program due to her diabetes and high blood pressure and that she owned a cane, which she sometimes used as a mobility aid.
29The CNRs of Dr. Ajisafe show that the applicant reported pain in her shoulders, knees and lower back several times between August and December 2022. I find that she continued to report bilateral shoulder pain to Dr. Ajisafe until August 2, 2023. However, Dr. Ajisafe did not testify at the hearing and, based on his CNRs, I find that Dr. Ajisafe did not express an opinion as to whether the applicant’s pain was as a result of the accident, he merely recorded what the applicant reported to him in that respect. For example, on August 2, 2023, Dr. Ajisafe’s CNRs indicate that the applicant told him that her right shoulder pain was worse because the PSWs, who had been helping her at home since the accident, had stopped coming two months earlier so she had been trying to do the household chores on her own. I therefore give less weight to the CNRs of Dr. Ajisafe.
30The hospital records show that the applicant went to the emergency room on July 7, 2022 and reported that she had been experiencing upper back and chest pain since the accident. The records show that the applicant had a CT scan of her chest and was cleared for pulmonary embolism or other intrathoracic injury and discharged. I find that the hospital records do not contain a medical opinion that the applicant continued to suffer from any accident-related symptoms or injuries.
31In contrast Dr. Platnick opined that the applicant’s fractures and soft tissue injuries caused by the accident had healed and that there was no objective evidence of ongoing accident-related physical impairments as of his initial assessment on July 14, 2022. I give significant weight to the reports and testimony because Dr. Platnick opined that the applicant’s presentation was dramatic, inconsistent, exaggerated and pain-focused was supported by the evidence. He therefore did not depend on the applicant’s subjective reports in forming his opinion. I accept Dr. Platnick’s testimony respecting his use of certain tests to measure the sincerity and effort put forth by the applicant during his testing and Dr. Platnick’s opinion that the applicant’s presentation was inconsistent and exaggerated as his opinion generally fits with the evidence presented at the hearing as a whole. In particular, I find that the surveillance report of July 8, 2022 and the corresponding videos, which were filmed between June 16, 2022 and June 24, 2022, support Dr. Platnick’s opinion as they show the applicant driving a vehicle, turning her head to look over her shoulder while driving, getting in and out of a vehicle, going up and down stairs, walking without a cane, and not using her walking boot or sling approximately two to three weeks prior to Dr. Platnick’s first assessment. I therefore find that the applicant’s use of a walking boot, sling and cane and the dramatic presentation described by Dr. Platnick, were likely an exaggeration.
32The progress note of Dr. Soon-Shiong dated January 17, 2023, indicates his opinion that the applicant’s fractures were solidly united and there was no sign of torn ligaments. Dr. Soon-Shiong diagnosed the applicant with mild supraspinatus tendinosis for which he recommended using anti-inflammatories, self-directed stretching exercises and, if she continued to be bothered by pain, a cortisone injection. The applicant confirmed during her testimony that she never sought or received a cortisone injection. I find that Dr. Soon-Shiong’s note was based on the results of an MRI. I give significant weight to Dr. Soon-Shiong’s note as it is based on the objective results of the MRI as well as Dr. Soon-Shiong’s observations of the applicant as the applicant’s treating orthopaedic surgeon from date of the accident until January 17, 2023. I find that Dr. Soon-Shiong’s note further confirms Dr. Platnick’s opinion that the applicant’s accident-related injuries had healed.
33For the foregoing reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that the ACBs she incurred was reasonable and necessary as a result of the accident.
Termination of ACBs
34Because I found that the applicant was not entitled to the ACBs, I do not need to consider the respondent’s claim respecting the termination of the ACBs.
Repayment of ACBs
35I find that the respondent is entitled to a repayment of $3,000.00 on account of the ACBs paid to the appellant.
36Section 52(1)(a) of the Schedule provides that a person is liable to repay to the insurer any benefit that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud. Section 52(2) of the Schedule provides the respondent must give the applicant notice of the amount that is required to be repaid. The respondent has the burden of proving, on a balance of probabilities, that the benefits were paid to the applicant as a result of an error, a wilful misrepresentation or fraud.
37The respondent sought a repayment of $3,000 paid to the applicant for ACBs pursuant to its letter of April 19, 2023. The respondent submits that it is entitled to the repayment because the applicant wilfully misrepresented the amount of time that the personal support workers (PSWs) attended at her home in order to obtain benefits to which she was not entitled. The respondent relies on the surveillance videos and reports, the records and invoices of Mercie Home Care, the applicant’s examination under oath (EUO) and testimony at the hearing, the testimony of Jelena Milidragovic, occupational therapist, and its denial letter of April 19, 2023.
38The applicant submits that Mercie Home Care supplied her with attendant care services for 55 hours per week from July 4, 2022 to approximately July 2023. She submitted invoices for the period of July 4, 2022 to April 7, 2023. In support of her claim, she relies on her testimony, the testimony of Benedicta Omezi and Oman Okor, the PSWs, the records and invoices of Mercie Home Care, the occupational therapy in-home assessment reports of Arash Sasani, occupational therapist, dated May 15, 2023 and September 7, 2022, and the testimony of Jordan Barrett-Grey, investigator.
39While the Mercie Home Care invoices and records indicated that the PSWs worked 11 hours per day (10:00 am to 9:00 pm) every weekday between July 4, 2022 and April 7, 2023, and this was confirmed by the testimony of the applicant during her EUO, the surveillance reports and video do not show either PSW entering or leaving the house. This is despite surveillance taking place on 14 days on which Mercie Home Care billed for its services between 10:00 am and 9:00 pm. While the surveillance frequently ended prior to 9:00 pm, it began between 7:30 and 9:15 am on 11 out of the 14 days. I find that, on a balance of probabilities, if the invoices were accurate, the surveillance should have captured a PSW entering the house on roughly 11 occasions.
40During her testimony, the applicant’s explanation for the absence of the PSWs on the surveillance video was that the PSWs frequently arrived earlier or later than 10:00 am, left earlier or later than 9:00 pm and often slept over at her house. I give little weight to the applicant’s testimony because I was not directed to any supporting documentary evidence. At her EUO, the applicant stated that her daughter kept a record of the times that the PSWs started and finished, so she was able to confirm that they did work the 11 hours per day for which they billed. However, I was directed to no such record.
41Ms. Omezi and Ms. Okor also testified that their arrival and departure times were inconsistent and that they often slept at the applicant’s house. When asked approximately how many nights they slept at the applicant’s house in the year they provided services for the applicant, both Ms. Omezi and Ms. Okor answered, “about two months.” I was directed to no documentary evidence to support this claim.
42The respondent pointed to a number of inconsistencies in the Mercie Home Care records, which included reports that they assisted with applying make-up, which the applicant denied during her EUO, reports that they assisted with flossing, which Ms. Okor denied during her testimony, and specific notes that indicated they arrived at the house and went home each day.
43The Mercie Home Care records indicate that the PSWs would take the applicant for a walk each day. The surveillance did not capture the applicant leaving the house to walk with or without the help of a PSW. Ms. Omezi and Ms. Okor each testified that they would take the applicant out the back door and help her to walk in the back yard because it was safer. This was inconsistent with the applicant’s evidence at her EUO, when she stated that the PSWs would help her walk around the neighbourhood. During her testimony at the hearing, the applicant changed her evidence and agreed that the PSWs took her for walks in the back yard. Both Ms. Omezi and Ms. Okor explained the various inconsistencies between their testimony and their records by stating that the records were “just a template.” I accept the explanation provided by Ms. Omezi and Ms. Okor that they did not take contemporaneous notes all day and that tasks they performed daily would look the same on each record. However, I find that their explanation of the use of a template for their records does not explain the extensive inconsistencies between their records, their own testimony and the testimony of the applicant. For these reasons, I give little weight to the testimony of Ms. Omezi or Ms. Okor or the records of Mercie Home Care.
44In addition, I find that the applicant’s occupational therapist, Ms. Milidragovic’s records confirm that she provided treatment or assessed the applicant in the applicant’s home on August 11, 2022, September 28, 2022, October 20, 2022, November 23, 2022 and March 8, 2023. I find that each of these dates corresponds with a date on which Mercie Home Care billed for PSW services between 10:00 am and 9:00 pm. Ms. Milidragovic testified that she never saw a PSW in the applicant’s home. Ms. Omezi and Ms. Okor confirmed that they never met Ms. Milidragovic. The applicant explained this discrepancy by stating that sometimes the PSWs went out to get groceries for her. I find that this explanation is not supported by the records of Mercie Home Care, which mention a PSW going for groceries on one occasion, or by the testimony of Ms. Omezi, who testified that she thought she may have gone grocery shopping one time for the applicant, or the testimony of Ms. Okor, who testified that she did not do any grocery shopping for the applicant.
45I find that the reports of Mr. Asani, the respondent’s occupational therapist, confirm that he saw a PSW on each of the two occasions he attended at the applicant’s home to perform an assessment. However, I find that this evidence does not conflict with the respondent’s claims because the respondent does not claim that the PSWs never attended the applicant’s home, merely that they did not attend to the extent specified on the invoices.
46During his testimony, Mr. Barrett-Grey agreed that the PSWs may have entered or left the house during the times when he was not watching. I find that this does not change the fact that Mr. Barrett-Grey’s surveillance has disproven the veracity of the Mercie Home Care invoices. The respondent is not required to demonstrate with absolute certainty that the PSWs never attended at the applicant’s home. I find that the surveillance video and reports demonstrate, on a balance of probabilities, that the PSWs did not attend at the applicant’s home to the extent claimed on the invoices.
47Based on the above, I find, on a balance of probabilities, that the applicant wilfully misrepresented the amount of services she received from Mercie Home Care by submitting inaccurate invoices and records, in order to obtain benefits to which she was not entitled. As the $3,000.00 ACB that was paid to the applicant was paid based on the invoices of Mercie Home Care, I find that the respondent has demonstrated that it is entitled to a repayment of $3,000.00.
Entitlement to treatment plans
48To 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 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 not entitled to the treatment plans for chiropractic services submitted October 7, 2022, November 16, 2022, January 20, 2023 or February 17, 2023
49I find that the applicant is not entitled to the treatment plans for chiropractic services submitted October 7, 2022, November 16, 2022, January 20, 2023 or February 17, 2023.
50The treatment plan submitted October 7, 2022 was proposed by Dr. Reza Babaloui, chiropractor, of Malton Spine Clinic and sought funding of $2,672.10 for chiropractic services. The treatment plan submitted November 16, 2022 was proposed by Dr. Babaloui and sought funding of $3,209.72 for chiropractic services. The treatment plan submitted January 20, 2023 was completed by Dr. Babaloui and sought funding of $3,209.72 for chiropractic services. The treatment plan submitted February 17, 2023 was completed by Dr. Babaloui and sought funding for $2,776.10 for chiropractic services.
51The goals of the treatment plans were pain reduction, increase in strength, increased range of motion and a return to activities of normal living. The applicant submits that the treatment plans are reasonable and necessary as a result of the accident because she suffered injuries in the accident, specifically a broken clavicle, a broken cuboid bone in her foot, soft tissue injuries to her neck and back and a head injury. The applicant submits that she continued to suffer from headaches and pain in her neck, back, chest, shoulder and ankle as a result of the accident. The applicant relies on the treatment plans, the clinical notes and records (CNRs) and testimony of Dr. Babaloui, the CNRs of her family doctor, Dr. Ajisafe, the May 30, 2022, March 10, 2023 and May 8, 2023 Occupational Therapy Reports of Jelena Milidragovic and the testimony of Ms. Milidragovic.
52The respondent submits that the treatment plans are not reasonable and necessary as a result of the accident. The respondent relies on the reports of Dr. Howard Platnick, physician, dated September 7, 2022 and June 7, 2023, Dr. Platnick’s testimony, the January 17, 2023 progress note of Dr. Gregory Soon-Shiong, the applicant’s orthopaedic surgeon, and the surveillance video and reports.
53The CNRs of Dr. Ajisafe show that the applicant reported pain in her shoulders, knees and lower back several times between August and December 2022. The applicant continued to report bilateral shoulder pain to Dr. Ajisafe until August 2, 2023. The CNRs show that Dr. Ajisafe advised the applicant that she should “continue to do the therapy” on November 28, 2022 and that she would “need therapy again” on August 2, 2023. However, based on his CNRs, I find that Dr. Ajisafe did not express an opinion as to whether the applicant’s pain or need for therapy was as a result of the accident.
54I find that the CNRs of Dr. Babaloui show that the applicant, as of September 19, 2022, complained of headache, back and neck pain, shoulder, wrist and elbow pain. Dr. Babaloui testified that he recommended each subsequent treatment plan because, while the applicant improved somewhat during her treatment, she did not improve as much as expected.
55I find that the progress note of Dr. Soon-Shiong dated January 17, 2023, indicates his opinion that the applicant’s fractures were solidly united and there was no sign of torn ligaments. Dr. Soon-Shiong diagnosed the applicant with mild supraspinatus tendinosis for which he recommended using anti-inflammatories, self-directed stretching exercises and, if she continued to be bothered by pain, a cortisone injection. The applicant confirmed during her testimony that she never sought or received a cortisone injection. I find that Dr. Soon-Shiong’s note was based on the results of an MRI that Dr. Soon-Shiong ordered in response to the applicant’s complaints of shoulder pain in November 2022, which was close to the time the earliest treatment plan was submitted, on October 7, 2022. I give significant weight to Dr. Soon-Shiong’s note as it is based on the objective results of the MRI as well as Dr. Soon-Shiong’s observations of the applicant as the applicant’s treating orthopaedic surgeon from date of the accident until January 17, 2023. Dr. Soon-Shiong did not recommend chiropractic therapy.
56I give significant weight to the reports of Dr. Platnick, who opined that the applicant’s fractures and soft tissue injuries caused by the accident had healed and that there was no objective evidence of ongoing accident-related physical impairments as of his initial assessment on July 14, 2022, because Dr. Platnick reported and testified at the hearing that he found the applicant’s presentation to be dramatic, inconsistent, exaggerated and pain-focused. He therefore did not depend on the applicant’s subjective reports in forming his opinion. I accept Dr. Platnick’s testimony respecting his use of certain tests to measure the sincerity and effort put forth by the applicant during his testing and Dr. Platnick’s opinion that the applicant’s presentation was inconsistent and exaggerated as his opinion generally fits with the evidence presented at the hearing as a whole. In particular, I find that the surveillance report of July 8, 2022 and the corresponding videos, which were filmed between June 16, 2022 and June 24, 2022, support Dr. Platnick’s opinion as they show the applicant driving a vehicle, turning her head to look over her shoulder while driving, getting in and out of a vehicle, going up and down stairs, walking without a cane, and not using her walking boot or sling approximately two to three weeks prior to Dr. Platnick’s first assessment. I therefore find that the applicant’s use of a walking boot, sling and cane and the dramatic presentation described by Dr. Platnick, were likely an exaggeration.
57I give less weight to Ms. Milidragovic’s recommendations that the applicant continue to receive physiotherapy and chiropractic treatment because her recommendation is not consistent with the preponderance of medical evidence before me.
58I acknowledge that the surveillance report dated September 12, 2022 confirms that the applicant was observed walking with a cane and walking with a pronounced limp. However, I find, based on the testimony of Ms. Milidragovic, that the applicant had a cane prior to the accident. I also find that the CNRs of Dr. Ajisafe show that she complained of back pain and right leg pain on June 22, 2020 and was prescribed Tylenol with codeine for osteoarthritis on August 31, 2021, both of which notes pre-date the accident. The applicant acknowledged that she was receiving support from the Ontario Disability Support Program for several years prior to the accident.
59For the above reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plans submitted October 7, 2022, November 16, 2022, January 20, 2023 and February 17, 2023 are reasonable and necessary as a result of the accident.
Entitlement to partially approved treatment plan for occupational therapy services submitted June 8, 2022
60I find that the applicant is not entitled to the outstanding amount of the partially approved treatment plan for occupational therapy services submitted June 8, 2022.
61The treatment plan was completed by Ms. Milidragovic and submitted on June 8, 2022. It initially sought funding for $2,971.90 for occupational therapy services and was partially approved in the amount of $2,372.59. The amount in dispute of $598.50 is in respect of communication with client team and treatment providers. The goals of the treatment plans are pain reduction, return to activities of normal living, return to modified work activities, and return to pre-accident work activities.
62The applicant submits that she is entitled to this amount because the remainder of the treatment plan was approved based on the opinion of the insurer’s examination assessor, Arash Sasani, occupational therapist, who provided an opinion that the treatment plan was reasonable and necessary.
63The respondent made no submissions on this issue.
64I give little weight to the September 9, 2022 report of Mr. Sasani because while he opined that the treatment plan in general was reasonable and necessary, he did not comment directly on the $598.50 for communication.
65Ms. Milidragovic testified that this amount was in respect of the time she spent communicating with the applicant outside of treatment sessions and communicating with others regarding the applicant. Ms. Milidragovic testified that she called the applicant’s family doctor.
66I find that the applicant has not proven on a balance of probabilities that she is entitled to the remainder of the treatment plan because she has not proven that Ms. Milidragovic’s ability to communicate with others or communicate with the applicant outside of treatment sessions, as described, was reasonable and necessary in order to meet the goals proposed in the treatment plan.
Entitlement to the partially approved treatment plan for assistive devices submitted June 8, 2022
67I find that the applicant is entitled to the outstanding amount of the partially approved treatment plan for assistive devices submitted June 8, 2022.
68The treatment plan was completed by Ms. Milidragovic and submitted on June 8, 2022. It initially sought funding for $1,919.84 for assistive devices and was partially approved in the amount of $1,839.84. The amount in dispute of $80.00 is in respect of “contact and file management.” The goals of the treatment plans are pain reduction, education in how to use the recommended assistive devices, return to activities of normal living, return to modified work activities, and return to pre-accident work activities.
69The applicant submits that she is entitled to this treatment plan in its entirety because the remainder of the treatment plan was approved based on the opinion of the insurer’s examination assessor, Arash Sasani, occupational therapist, who provided an opinion that the treatment plan was reasonable and necessary.
70The respondent made no submissions on this issue.
71I find that the applicant is entitled to the remainder of the partially approved treatment plan. Ms. Milidragovic explained during her testimony that the amount in dispute was to pay for her administrative staff to obtain quotes for the assistive devices proposed in the treatment plan, purchase the items and arrange for their delivery to the applicant’s home. I find that the tasks described by Ms. Milidragovic are an integral part of the remainder of the treatment plan, which the respondent approved. I therefore find, on a balance of probabilities, that the disputed amount of the treatment plan is reasonable and necessary.
The applicant is not entitled to the treatment plan for occupational therapy services submitted May 9, 2023
72I find that the applicant is not entitled to the treatment plan for occupational therapy services submitted May 9, 2023.
73The treatment plan submitted May 9, 2023, was proposed by Ms. Milidragovic and sought funding of $2,971.09 for occupational therapy services. The goals of the treatment plan are pain reduction, increased range of motion, increase in strength and return to activities of normal living. The applicant submits that the treatment plan is reasonable and necessary and relies as a result of not only her physical accident-related injuries but also as a result of cognitive injuries sustained in the accident. She relies on the March 10, 2023 and May 8, 2023 reports of Ms. Milidragovic and the testimony of Ms. Milidragovic.
74The respondent submits that the treatment plans are not reasonable and necessary as a result of the accident. The respondent relies on the reports of Dr. Howard Platnick, physician, dated September 7, 2022 and June 7, 2023, Dr. Platnick’s testimony, the January 17, 2023 progress note of Dr. Soon-Shiong.
75The CNRs of Dr. Ajisafe show that the applicant continued to report bilateral shoulder pain to Dr. Ajisafe until August 2, 2023. However, as stated above, based on his CNRs, I find that Dr. Ajisafe did not express an opinion as to whether the applicant’s pain was as a result of the accident.
76The progress note of Dr. Soon-Shiong dated January 17, 2023, indicates his opinion that the applicant’s fractures were solidly united and there was no sign of torn ligaments. I give significant weight to Dr. Soon-Shiong’s note as it is based on the objective results of an MRI as well as Dr. Soon-Shiong’s observations of the applicant as the applicant’s treating orthopaedic surgeon from date of the accident until January 17, 2023. Dr. Soon-Shiong did not recommend occupational therapy.
77For the reasons expressed above, I give significant weight to the reports of Dr. Platnick, who opined that the applicant’s fractures and soft tissue injuries caused by the accident had healed and that there was no objective evidence of ongoing accident-related physical impairments as of his initial assessment on July 14, 2022. Dr. Platnick’s opinion is confirmed by the letter of Dr. Soon-Shiong and by the surveillance reports and video.
78Ms. Milidragovic testified that the applicant continued to demonstrate physical and cognitive difficulties and difficulty navigating the health care environment. and that the proposed occupational therapy sessions could help her with that. I find that while Ms. Milidragovic conducted a cognitive screening test of the applicant, which indicated that the applicant had sustained cognitive injuries, I was not directed to any other evidence of the applicant’s cognitive injuries. I give less weight to Ms. Milidragovic’s recommendations that the applicant receive occupational treatment because her recommendation is not consistent with the preponderance of medical evidence before me.
79For the foregoing reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan is reasonable and necessary.
Interest
80Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the one partially approved treatment plan to which she is entitled.
Award
81The 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 criteria.
82The applicant submits that the respondent is liable to pay an award in respect of the treatment plan that I have found she is entitled to because the respondent partially denied the treatment plan despite its own expert, Mr. Sasani, opining that the treatment plan was reasonable and necessary. The respondent made no submissions on this issue.
83I find that the applicant has not proven, on a balance of probabilities, that she is entitled to an award because the respondent did follow the recommendations of Mr. Sasani, with respect to the majority of the two occupational therapy treatment plans that were submitted on June 8, 2022. I find that the applicant has not demonstrated that the respondent’s partial denial of $80.00 for “contact and file management” amounted to unreasonable conduct.
ORDER
PRELIMINARY ISSUE
84I find that:
i. The applicant is barred from proceeding for her claim for an NEB.
SUBSTANTIVE ISSUES
85I find:
i. The applicant is not entitled to proceed with her claim for an NEB and so is not entitled to an NEB;
ii. The applicant is not entitled to the treatment plans for chiropractic services dated October 7, 2022, January 20, 2023, February 17, 2023 or November 16, 2022;
iii. The applicant is not entitled to the treatment plans for occupational therapy services dated June 8, 2022 or May 9, 2023;
iv. The applicant is entitled to the treatment plan for assistive devices, dated June 8, 2022, which was partially approved and had a remaining amount in dispute of $80.00, plus interest;
v. The applicant is not entitled to an ACB;
vi. the respondent is entitled to a repayment of $3,000.00 on account of the ACBs paid to the appellant; and
vii. The respondent is not liable to pay an award under s. 10 or Reg. 664.
Released: May 7, 2025
Caley Howard
Adjudicator