Licence Appeal Tribunal File Number: 23-011985/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:
Annunziata Cosentino-Amato
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Matthew Hyland, Counsel
For the Respondent: Katherine Dempsey, Counsel
HEARD: By way of written submissions
OVERVIEW
1Annunziata Cosentino-Amato, the applicant, was involved in an automobile accident on October 21, 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, TD General 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:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $99.76 per week from October 28, 2020 to date and ongoing?
ii. Is the applicant entitled to $2,460.00 for an orthopedic assessment proposed by All Health Medical Centre in a treatment plan dated December 7, 2021?
iii. Is the applicant entitled to the treatment and assessments proposed by Pain Rehabilitation Clinic Inc., as follows:
(i) $2,000.48 for physical rehabilitation sessions, in a treatment plan, dated January 3, 2022; and
(ii) $2,200.00 for a general practitioner’s assessment, in a treatment plan, dated February 16, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order (“CCRO”) lists issue #1 as, “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 (“MIG”) limit?”. Both parties have submitted that the applicant has been removed from the MIG. Therefore, I have not included it in the issues in dispute.
4The CCRO lists issue #5 as, “Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?”. The applicant advised in her submissions that this issue is withdrawn. Therefore, I have not included it in the issues in dispute.
5The CCRO lists issue iii(i), as “Is the applicant entitled to $2,000.48 for a physiotherapy services assessment in a treatment plan submitted January 2, 2022?”. Upon review of the treatment plan in dispute, the plan recommends 12 sessions of physical rehabilitation and is dated January 3, 2022. I have amended the issue above to reflect this.
6The CCRO lists issue iii(ii), as “Is the applicant entitled to $2,200.00 for a chiropractic assessment, in a treatment plan dated February 16, 2022?” Upon review of the treatment plan in dispute, the plan recommends a general practitioner assessment. I have amended the issue above to reflect this.
RESULT
7I find that the applicant is entitled to an IRB from February 4, 2023 to date, at the following rates:
February 4, 2023 to December 31, 2023: $101.63 per week
January 1, 2024 to December 31, 2024: $88.91 per week
January 1, 2025 to date: to be calculated
8I find that the applicant is not entitled to the three treatment plans in dispute.
9I find that the applicant is entitled to interest on any overdue payment of IRBs.
PROCEDURAL ISSUES
Failure to meet the document exchange deadline
10The respondent filed a Notice of Motion on October 28, 2024. The Tribunal ordered that the motion would be heard at this written hearing. The Orders sought by the respondent are as follows:
An Order to strike the applicant’s reply submissions in their entirety
In the alternative, an Order that the productions served on October 10, 2024, be excluded at the hearing.
In the further alternative, an Order to allow the respondent to file a sur-reply.
11The respondent submits that the applicant has contravened the CCRO, dated March 15, 2024, by failing to produce documents within the deadlines, ordered in the CCRO. The final production deadline in the CCRO was on June 4, 2024, 90 days after the case conference. On October 10, 2024, the applicant provided a letter prepared by Dr. Judith Pilowsky dated October 9, 2024, which had not previously been produced to the respondent. The applicant relies upon this document at paragraph 16 and Tab 9 of her reply submissions. The respondent submits that the applicant failed to include this document in her initial submissions filed on October 2, 2024 and she failed to bring a motion to admit this late served production. The respondent opposes the admission of this evidence. The respondent submits that the right of reply is limited to a response to the other party’s submissions that could not have been reasonably raised in the initial submissions, and further, that a reply is not an opportunity to introduce new evidence that should have been included in the initial submissions.
12The applicant acknowledges that the letter from Dr. Pilowsky was submitted outside of the production deadline. The applicant submits that the letter prepared by Dr. Pilowsky does not have any new information that was not previously discussed in her reports. The letter simply provides additional details related to the connection between the applicant’s psychological and physical condition, and the need for physical treatment to address both. The applicant submits that the letter does not constitute new information, factually misleading information or an unfair surprise.
13Rule 9.3 of the Licence Appeal Tribunal Rules, 2023, states that if a party fails to comply with any Rule or Order with respect to disclosure, that party may not rely on the document as evidence, without the permission of the Tribunal. When making its determination, the Tribunal may consider any relevant factor, including:
a. the reasons for non-compliance;
b. whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order;
c. the extent to which the substance of the information or testimony lies within the knowledge of the other party;
d. whether the other party opposes the testimony; and
e. the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.
14I agree with the submissions of the respondent and grant the respondent’s request to exclude the letter from Dr. Pilowsky, dated October 9, 2024, and paragraph 16 of the applicant’s reply submissions, from the hearing. I find that the applicant is expected to make the entirety of her case in her initial main submissions, and new evidence as part of a reply is not permitted because the respondent does not have the opportunity to respond to new evidence tendered as part of a reply. While I accept that the letter from Dr. Pilowsky did not exist until after the applicant filed her submissions on October 2, 2024, had the applicant wanted to rely on this document, a motion to admit the late production should have been brought.
15For the above reasons, the respondent’s request to exclude the letter of Dr. Pilowsky, dated October 9, 2024 and paragraph 16 of the reply submissions, is granted.
ANALYSIS
Quantum of IRBs
16I find that the applicant is entitled to payment of an IRB from February 4, 2023 to date.
17The parties are not disputing the entitlement of the applicant to IRBs. The only issue in dispute is quantum.
18Section 4(1) of the Schedule provides that “gross weekly employment income” means, in respect of an insured person, the amount of the person’s gross annual employment income, as determined under subsection (2), divided by 52.
19Section 4(2) of the Schedule provides that the gross annual employment income of an insured person who was not self-employed is whichever of the following amounts the person designates: (i) the person’s gross employment income for the four weeks before the accident, multiplied by 13; or (ii) the person’s gross employment income for the 52 weeks before the accident.
20There is no dispute between the parties that the applicant’s Long-Term Disability (“LTD”) and Canadian Pension Plan (“CPP”) benefits should be deducted from 70% of her pre-accident gross weekly employment income. Instead, the crux of the dispute is what the correct amount is for her pre-accident gross weekly employment income, and by extension, the quantum of the IRB payable to the applicant.
21The applicant claims entitlement to IRBs at the rate of $99.76 per week from October 28, 2020 to present and ongoing. The respondent submits that the quantum payable to the applicant for IRBs is nil.
22At the time of the accident, the applicant was employed as an Office Administrator at a school. She submitted an Employer’s Confirmation Form (“OCF-2”), dated September 15, 2022, which states that her pre-accident gross income in the last four weeks before the accident was $1,131.20 per week.
23Following the accident, the applicant used six sick days, from October 23, 2020 to October 30, 2020. She then returned to work after the accident until May 24, 2022. She subsequently applied to Sun Life for LTD benefits, and it was determined that her deemed disability date was May 25, 2022. The applicant submits that her LTD benefits with Sun Life were approved on January 17, 2023, and her payments began on February 4, 2023. Based on a $4,284.00 monthly wage, LTD was paying her 70%, or $2,999.00 per month, less CPP offset and EI deductions. On October 11, 2023, the applicant was approved for CPP benefits. Her entitlement was $317.69 per week for 2022 and $338.34 per week for 2023. This amount offsets what is paid by the LTD carrier.
24The applicant submits that on March 21, 2024, ADS Forensic Accountants (“ADS”) prepared an IRB Calculation report. The report indicates that the applicant’s pre-accident income was calculated based on her gross employment income in the four weeks prior to the accident and the pay statements provided. The report determined that her gross employment income in the four weeks pre-accident was $58,822.00 or $1,131.20 per week, with 70% being $791.84. The applicant submits that for the period from February 4, 2023 to December 31, 2023, ADS determined that her CPP and LTD income was $690.21 weekly. During this period, her IRB is $101.63 per week. For the period from January 1, 2024 and ongoing, ADS determined that her CPP and LTD income was $702.93 weekly. During this period, her IRB is $88.91. The applicant submits that, from February 4, 2023 to March 31, 2024, ADS calculated that the total outstanding, inclusive of interest, was $6,257.91. The applicant submits that as the respondent has not provided its own report in response to the report of ADS, it is not in a position to challenge the applicant’s IRB report.
25The respondent submits that ADS improperly relied on the salary information contained in the OCF-2 and they failed to reference the LTD policy and the LTD calculations as determined by Sun Life, resulting in inaccurate findings. The respondent submits that Sun Life, in their letter dated January 17, 2023, determined that the applicant’s gross annual income was $51,408.00, and her monthly gross earnings was $4,332.00 (or $1,083.00 per week). Sun Life determined that her monthly benefit is $3,033.00 gross (or $758.25 per week). 70% of the applicant’s gross income of $1,083.00 per week is $758.10. Her weekly LTD/CPPD entitlement is $758.25. As the respondent is entitled to deductions for such benefits, there is no shortfall for which the respondent is responsible. Once again, the respondent submits that the quantum payable to the applicant for IRBs is nil.
26The applicant in her reply submissions submits that the respondent is improperly using Sun Life’s determination of her gross annual income for the purposes of calculating her IRBs. She submits that ADS relied on her pay stubs that were provided by her employer in calculating her total gross employment income for the four weeks prior to the accident. As per the Statement of Earnings and Deductions from her employer, the applicant was earning $2,262.40 bi-weekly. The applicant provided a copy of her Statement of Earnings and Deductions for the pay dates of September 17, 2020, October 1, 2020, October 15, 2020, October 29, 2020, and November 12, 2020.
27Upon review of the report by ADS, I find that they properly relied upon the applicant’s Statement of Earnings and Deductions for the pay dates of September 17, 2020, October 1, 2020, October 15, 2020, October 29, 2020, and November 12, 2020, provided by the applicant’s employer. These Statements confirm that the applicant’s bi-weekly pre-accident gross income was $2,262.40. I find that this is the correct amount that should be used to calculate the applicant’s IRB quantum. I do not accept the respondent’s submission that ADS should have relied upon the amounts listed by Sun Life in their letter dated January 17, 2023. I find that neither party provided me with a copy of the complete Sun Life file to support how it calculated the applicant’s pre-accident income. Therefore, there is no way to determine how Sun Life made this calculation or what documentation they relied on.
28In addition, I note that both the applicant and the respondent submitted a copy of a letter from Sun Life, dated January 17, 2023. Both letters state that the applicant was approved for LTD benefits, and that her payments began on February 4, 2023. However, the amounts indicated in the two letters are different. In the applicant’s version of the letter, it advises that the applicant’s benefit plan pays 70% of her monthly salary of $4,284.00. Her monthly benefit payment amount is $2,999.00, less CPP offset and EI deductions. In the respondent’s version, it advises that the applicant’s benefit plan pays 70% of her monthly salary of $4,332.00. Her monthly benefit payment amount is $3,033.00, less CPP offset and EI deductions. Neither party has addressed the different amounts indicated in the letters. This discrepancy further supports my finding that the calculations made by Sun Life should not be relied upon when calculating the quantum of IRBs payable.
29I find that with respect to the period in which the applicant is claiming IRBs, the report of ADS confirms that there is no IRB payable prior to February 3, 2023, as the applicant was either working or receiving sick pay and short-term disability benefits up to this date. Therefore, the time period in dispute in this hearing is from February 4, 2023 to date, as the applicant has not met her onus of proving entitlement prior to this date.
30With respect to the amount claimed by the applicant in her application, I find that the amount of $99.76 per week is not supported in the applicant’s submissions. I accept the findings in the report by ADS, that the following IRB quantum is payable:
February 4, 2023 to December 31, 2023: $101.63 per week
January 1, 2024 to December 31, 2024: $88.91 per week
I then find, for the period from January 1, 2025 to date, that as the CPP is indexed each January, the IRB for this period will have to be recalculated to determine the weekly IRB amount owing. I cannot conduct an analysis of the amount payable based on the ADS report dated March 21, 2024.
31For the reasons stated above, I find that the applicant has proved on a balance of probabilities that she is entitled to payment of an IRB from February 4, 2023 to present, at the quantum set out above.
Entitlement to Medical and Rehabilitation Benefits
32To receive payment for medical and rehabilitation benefits under sections 15 and 16 of the Schedule, the applicant has the onus of proving 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.
a. The applicant is not entitled to the treatment plan for an orthopedic assessment
33I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for an orthopedic assessment.
34The applicant claims entitlement to $2,460.00 for an orthopedic assessment, proposed by All Health Medical Centre, in a treatment plan, dated December 7, 2021. The goals of the treatment plan are to identify impairments and help achieve maximum recovery.
35The applicant submits that she is entitled to the treatment plan due to the objective impairments to her hip, shoulder, neck and back. The applicant submits that as her physical injuries have not resolved and she has developed a chronic pain syndrome, the treatment plan in dispute is reasonable and necessary. She relies on the clinical notes and records (“CNRs”) of her family physician, Dr. Jennifer Black; the report of Dr. D.J. Ogilvie-Harris, orthopedic surgeon, dated January 21, 2022, which diagnosed her with chronic pain syndrome; the report of Dr. Rodrigo Castro, general practitioner, dated April 30, 2022 and the report of Dr. Beverley Chow, physiatrist, dated April 20, 2021. The applicant further submits that the Insurer’s Examination (“IE”) reports of Dr. Jennifer Gordon, physiatrist, dated August 27, 2021 and Dr. David Berbrayer, physiatrist, dated October 20, 2022, should be given little weight because they are vague, minimize her impairments and do not address chronic pain or chronic pain syndrome.
36The respondent submits that the treatment plan in dispute is not reasonable and necessary. The respondent submits that the applicant has provided little medical evidence to support any ongoing medical issues or a need for further physical treatment as a result of her injuries. The respondent submits that the applicant’s physical issues are musculoskeletal pain which are defined as a minor injury. These injuries are described in the Disability Certificate dated August 30, 2022, and the treatment plan in dispute. The respondent relies on the Physiatry IE reports of Dr. Gordon, dated August 27, 2021 and January 31, 2022, and Dr. Berbrayer, dated October 20, 2022, who both found the applicant’s musculoskeletal injuries were sprain/strains suitable for a minor injury designation. In response to the orthopaedic assessment report completed by Dr. Ogilvie-Harris, the respondent submits that this report is less persuasive than the IE reports, as Dr. Ogilvie-Harris’s assessment was virtual. In addition, the respondent notes he explores several diagnoses, but fails to assign such impairments to the applicant; he did not review the applicant’s medication needs; and he suggested numerous treatment options, none of which the applicant has followed. The respondent further submits that the applicant has not reported any physical complaints to her family physician, Dr. Black, since February 2022. With respect to Dr. Castro’s report, the respondent submits that Dr. Castro excluded a diagnosis of chronic pain syndrome in the listed diagnoses, and instead suggests that the applicant consult with a chronic pain specialist.
37I find that the applicant has not established that the treatment plan in dispute is reasonable and necessary for the following reasons.
38Firstly, I find there is insufficient evidence in the medical file that supports the need for an orthopedic assessment. I find, upon review of the records of Dr. Black, that she referred the applicant to Dr. Chow for a physiatry assessment, with respect to her hip complaints. As the applicant’s treating practitioner, had she opined that an orthopedic assessment was required, she would have made a referral for such an assessment. The applicant was under the care of Dr. Chow at the time this treatment plan was submitted, and she made no recommendations for an orthopedic assessment. I find that the applicant has not pointed me to any other evidence that a medical practitioner recommended an orthopedic assessment contemporaneously with the treatment plan being submitted.
39Secondly, I find that the applicant has not dealt with the key elements to establishing entitlement to the disputed treatment plan in her submissions. She has not provided any submissions on the treatment plan’s therapeutic goals, whether they are being met, or the proposed costs of the plan. The applicant has not established whether and how the assessment proposed in the disputed treatment plan is reasonable, other than providing a copy of Dr. Ogilvie-Harris’s report. I do not find that the applicant can use the resulting report from a treatment plan to support the reasonable and necessary nature of the said treatment plan.
40Thirdly, I give little weight to Dr. Ogilvie-Harris’ report, dated January 21, 2022. I find that Dr. Ogilvie-Harris did not complete a physical examination of the applicant, as he conducted his assessment virtually. I find that his report is based on the self-reporting of the applicant, and he has not relied on sufficient medical evidence to support his conclusions. His conclusion is that the applicant sustained soft tissue injuries and that she has the characteristics of a chronic pain syndrome because her injuries had not resolved over the appropriate time frame. While he provides a description of several diagnoses in his report, he does not specifically assign such impairments to the applicant.
41Fourthly, I find upon review of the Disability Certificate, prepared by Dr. Black, dated August 30, 2022, it lists “MSK pain – especially right hip pain”. It further notes that “patient has been seeking active treatment since the accident in Oct. 2021. Minimal progress since then.” There is no indication that the applicant suffers chronic pain or that an orthopedic assessment is recommended.
42Finally, I find the Physiatry IE reports prepared by Dr. Gordon, and Dr. Berbrayer, to be persuasive. I put weight on their findings as to the nature of the applicant’s injuries, which are soft tissue. There was no indication that a condition exists that warrants an orthopedic assessment.
43Dr. Gordon concluded in her IE report, dated August 27, 2021, that the applicant suffered lumbar spine sprain and strain – resolving and right hip sprain and strain, myofascial pain. Dr. Gordon stated that, from a musculoskeletal perspective, the applicant’s injuries meet the criteria of a minor injury. Dr. Gordon completed an Addendum report, dated January 31, 2022, where she reviewed the treatment plan, prepared by Dr. Ogilvie-Harris, dated December 7, 2021, as well as the updated CNRs of Dr. Black, which included the records of Dr. Chow, physiatrist, dated April 20, 2021 and July 15, 2021. She maintained her opinion that the applicant suffered minor injuries.
44Dr. Berbrayer, concluded in his IE report, dated October 20, 2022, that the applicant sustained myofascial pain in the cervical spine with reported occasional numbness and tingling involving the right fifth digit and mechanical low back pain, primarily right-sided, with associated right hip pain and strain – resolving. He concluded that these injuries are minor. He also concluded that the treatment plan dated December 7, 2021 is not reasonable or necessary.
45For the reasons set out above, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that the treatment plan for an orthopedic assessment, is reasonable and necessary.
b. The applicant is not entitled to the treatment plan for physical rehabilitation sessions
46I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for physical rehabilitation sessions.
47The applicant claims entitlement to $2,000.48 for 12 sessions of physical rehabilitation, proposed by Pain Rehabilitation Clinic Inc., in a treatment plan, dated January 3, 2022. The goals of the treatment plan are to return to activities of normal living, to return to pre-accident work activities, pain reduction, increase in strength, and increase in range of motion.
48In her submissions, the applicant claims entitlement to $2,000.48 for a physiotherapy services assessment. Upon review of the treatment plan in dispute, this plan is recommending 12 sessions of physical rehabilitation. I find the applicant has not properly listed the issue in dispute, and, by extension, I find she has not provided submissions on what is at issue before the Tribunal.
49I further find that the submissions made by the applicant do not address the key elements to establishing entitlement to the disputed treatment plan. I find that the applicant has not provided any submissions on the disputed treatment plan’s therapeutic goals, whether they are being met or the proposed costs. The applicant has not established whether and how the services proposed are reasonable and necessary.
50For the reasons set out above, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that the treatment plan, recommending physical and rehabilitation sessions, is reasonable and necessary.
c. The applicant is not entitled to the treatment plan for a general practitioner assessment
51I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for a general practitioner assessment.
52The applicant claims entitlement to $2,200.00 for a general practitioner assessment, proposed by Dr. Castro of Pain Rehabilitation Clinic Inc, in a treatment plan dated February 16, 2022. The goals of the treatment plan are to identify any medical condition that might have generalized due to the accident and to restore functional tolerance and endurance.
53The applicant submits that she is entitled to this assessment because it was essential to evaluating her disability and its impact on her functioning. She further submits that on the basis of sustaining physical injuries that have not resolved and have developed into a chronic pain syndrome, the treatment plan is reasonable and necessary.
54The respondent submits that the treatment plan in dispute is not reasonable and necessary. The respondent submits that the applicant has provided little medical evidence to support any ongoing medical issues or a need for further physical treatment as a result of her injuries.
55I find that the applicant has provided limited submissions and evidence in support of the reasonableness and necessity of the treatment plan in dispute. I find that the applicant has not dealt with the key elements to establishing entitlement to the disputed treatment plan in her submissions. She has not provided any submissions on the treatment plan’s therapeutic goals, whether they are being met, or the proposed costs. The applicant has not established whether and how the services proposed in the disputed treatment plan are reasonable, other than to state that it is necessary because her physical injuries have not resolved and have developed into a chronic pain syndrome.
56I find that while the applicant has attached a number of records to her submissions, she has not directed the Tribunal to the records or excerpts from any reports that support the necessity and reasonableness of the general practitioner’s assessment proposed in the treatment plan in dispute.
57For the reasons outline above, I find that the applicant has not met her onus of proving on a balance of probabilities that the treatment plan recommending a general practitioner’s assessment is reasonable and necessary.
Interest
58Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on any overdue payment of IRBs.
ORDER
59For the reasons outlined above, I find:
i. The applicant is entitled to an IRB from February 4, 2023 to date, at the following rates:
February 4, 2023 to December 31, 2023: $101.63 per week
January 1, 2024 to December 31, 2024: $88.91 per week
January 1, 2025 to date: to be calculated
ii. The applicant is not entitled to the three treatment plans in dispute; and
iii. The applicant is entitled to interest on the overdue payment of IRBs.
Released: May 12, 2025
Melanie Malach
Adjudicator