Licence Appeal Tribunal File Number: 23-003591/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:
Isabel Landrey
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Maciek Piekosz, Counsel
For the Respondent:
Stephen Whibbs, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Isabel Landrey (the “applicant”) was involved in an automobile accident on January 29, 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 Economical Insurance (the “respondent”) 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 attendant care benefits (“ACB”) in the amount of $732.62 per month from November 16, 2022 to date and ongoing?
ii. Is the applicant entitled to the following services and assessments proposed by Pursuit Health Management (“Pursuit”) in the following treatment plans (“OCF-18”):
(i) Physiotherapy in the amount of $2,633.50 dated January 12, 2023;
(ii) Massage therapy in the amount of $1,317.83 dated March 2, 2023;
(iii) Occupational therapy in the amount of $2,901.53 dated May 20, 2023; and
(iv) A cognitive ability functioning assessment in the amount of $2,200.00 dated August 18, 2023?
iii. Is the applicant entitled to the following services and assessments proposed by Amy Cooper Rehab (“Cooper”) in the following OCF18s:
(i) Rehabilitation therapy services in the amount of $2,384.12 dated May 24, 2023; and
(ii) A physiotherapy assessment in the amount of $499.25 dated August 10, 2023?
iv. Is the applicant entitled to physiotherapy services in the amount of $3,342.64, proposed by NeuPhysio North (“NeuPhysio”) in an OCF-18 dated April 15, 2022?
v. Is the applicant entitled to audiometric speech language services in the amount of $690.00 proposed by Barbara Taylor and Elizabeth Fox in an OCF-18 dated January 12, 2023?
vi. Is the applicant entitled to nurse case management services in the amount of $5,231.47, proposed by Jennifer Arthur in an OCF-18 dated October 27, 2023?
vii. Is the applicant entitled to a vision therapy assessment in the amount of $1,200.00, proposed by Dr. Khamis in an OCF-18 dated May 2, 2023?
viii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has shown that the following attendant care services are reasonable and necessary: (1) meal preparation assistance of 30 minutes, seven days per week; and (2) 20 minutes of assistance with sorting and hanging clean laundry three times per week. The benefits for these specific attendant care services will be payable when proven incurred. The applicant has not shown the remaining attendant care services to be reasonable and necessary.
4The applicant is entitled to the following OCF-18s:
i. All proposed goods and services plus interest at issue 2(iii) above (i.e., occupational therapy);
ii. All proposed services plus interest at issue 2(iv) above (i.e., cognitive ability functioning assessment);
iii. 16 sessions of vestibular physiotherapy and the form completion fee plus interest at issue 2(i) above (i.e. rehabilitation therapy services);
iv. All the proposed goods and services—save for exercise equipment—plus interest at issue 2 above (i.e., physiotherapy services); and
v. All proposed goods and services plus interest at issue 2 above (i.e., audiometric speech language services).
5The applicant is not entitled to any of the other disputed OCF-18s, whether in whole or part.
6The respondent is liable to pay an award in the amount of 10 per cent of the total benefits payable at the rate of two per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
PRELIMINARY ISSUE
Were the applicant’s injuries caused by the January 2022 accident?
7I find the accident was a necessary cause of the applicant’s physical injuries, but not her psychological complaints.
8The appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident, she would not have suffered the physical and psychological impairments which form the basis of her application for the disputed benefits. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability, and further, that the accident need only be a necessary cause, and not the only cause, of the impairment.
9The respondent raises the issue of causation in its submissions. The respondent asserts that the impairments giving rise to the applicant’s ACB claim were not caused by the accident, and relies on Salih v Aviva General Insurance Company, 2018 CanLII 154093 (ON LAT) (“Salih”) to show that evidence of treatments prescribed or recommended after a subsequent accident will break the chain of causation. The respondent contends that most of the treatment, assessments, and recommendations with respect to the applicant’s post-accident issues occurred after a separate and later accident on April 1, 2022, and should therefore be given little weight per Baird v Intact Insurance, 2023 CanLII 103799 ON LAT (“Baird”).
10The applicant’s reply says the medical record—including the reports by the respondent’s IE assessors that specifically address the January 29, 2022 crash—demonstrate the respondent’s causation argument is made in bad faith. The applicant explains that these IEs were required to assess the applicant’s post 104-week eligibility for an income replacement benefit (“IRB”), and that the respondent agreed to continue paying this benefit on the basis of the opinions expressed by the assessors. The applicant therefore reasons that the respondent’s position on causation is untenable, given that its IRB decision supports her position that her injuries resulted from the accident.
Physical injuries and cognitive functioning
11I find the applicant’s pre-accident medical history was unremarkable in physical and cognitive contexts because neither party pointed me to evidence of pain complaints, physical impairments, or cognitive difficulties that pre-existed the accident. In contrast, the post-accident medical evidence supports the applicant’s claim of suffering a concussion and related symptoms that resulted from the accident and continue to persist. While the ambulance call report indicates the applicant complained only of pain in the left side of her chest wall, the subsequent triage assessment at the hospital documents additional complaints of pain in her left shoulder and hip. More evidence of accident-related injuries is revealed several days later on February 3, 2022, when Dr. Robert Butchey (family physician) documents complaints of a headache since the accident, photophobia and phonophobia, neck pain, and intermittent discomfort in the applicant’s right jaw and ear. The emergency room report of Dr. Amit Shah (physician)—completed several weeks later on February 21, 2022—indicates that since the accident, the applicant reported experiencing generalized continuous headaches, phonophobia, dizziness and mood instability. Dr. Shah diagnoses the applicant with a concussion and muscle strain in her neck and shoulder region, remarking that the applicant’s “story and exam are consistent with a concussion and paracervical and trapezius strain.” In March of 2022, Dr. Butchey’s records indicate ongoing complaints of headaches and pain with the addition of mental fatigue and confusion (i.e., cognitive difficulties).
12Dr. Butchey’s records show that after the subsequent accident in April 2022, the applicant’s complaints of headaches and ongoing neck pain (i.e., spasms and stiffness) continued, as did her complaints of post-concussive symptoms, phonophobia, and difficulties with concentration and focus. Based on this continuity of symptomology, I find the intervening April 2022 accident does little to diminish the January 2022 accident as a necessary cause of the physical injuries and cognitive symptoms that form the basis of the applicant’s claim.
13It follows too, that I afford little weight to the thrust of the respondent’s argument, which is that the bulk of the applicant’s evidence that pertains to her physical injuries is not reliable because her assessors either failed to address causation owing to the April 2022 accident in their analyses, conflated the two accidents, or did not distinguish symptomology between the two accidents. In my view, these factors bear little on benefit entitlement because I have determined the January 2022 accident to be a necessary cause of the applicant’s physical injuries.
14I did not find Salih to assist my analysis of the “but for” test as it applies to the applicant’s physical injuries. In Salih, which is not binding on me, the Tribunal found that evidence of injury complaints and corresponding treatment recommendations after a subsequent accident severed the chain of causation. However, the Tribunal considered pain complaints in Salih that were made at first instance some two years after a January 2018 accident, during which time a subsequent accident had occurred in March 2019. This is distinguishable from this case where the applicant’s complaints are consistently documented by multiple health care practitioners throughout the claim period from the time of the first accident that forms the basis of the claim.
15Similarly, Baird offered me little guidance into determining causation. In Baird, the Tribunal grappled with whether the bulk of medical assessors and treatment providers—including the applicant’s family physician—were aware of an intervening accident at the time they offered diagnoses and treatment recommendations. In this case before me, however, Dr. Butchey is aware of the intervening accident. Moreover, the applicant’s physical complaints remain consistent after the subsequent accident.
Psychological injuries
16In contrast to her physical injuries, I find the applicant failed to demonstrate that the January 2022 accident was a necessary cause of her mental health complaints (depression, anxiety, and PTSD). This is because the applicant’s medical records document pre-accident psychological issues that I find are consistent with those she attributes to the January 2022 accident. Further, the applicant’s submissions do not point to evidence of post-accident psychological complaints until May 10, 2022, which is after her subsequent accident in April 2022.
17For example, between September 13, 2021, and January 17, 2022, the applicant had five visits with Dr. Butchey to address psychological difficulties. During this time, she repeatedly complained about significant work-related stress and interpersonal difficulties at home that disabled her from working for almost that entire period. Further, Dr. Butchey’s records up to the subsequent accident in April 2022 indicate that the applicant’s time off work after the January 2022 accident is attributable to her physical injuries.
18I am not persuaded that the respondent’s IE reports establish psychological impairment arising from the January 2022 accident. Two of the three medical opinions highlighted in the respondent’s August 2023 IRB notice do not address psychological injuries. While the third opinion, offered by Dr. Janet Clewes (psychologist), describes severe accident-related psychological symptoms, I find Dr. Clewes was either unaware of the applicant’s pre-accident medical history or failed to consider it. For example, it is unclear whether Dr. Clewes was provided with Dr. Butchey’s pre-accident records. Despite the applicant being off work for several months because of psychological difficulties before the accident, Dr. Clewes notes the applicant denied any pre-accident symptomology associated with mood, anxiety, trauma, and stress. Further, Dr. Clewes does not examine a nexus between the applicant’s psychological complaints and her April 2022 accident. I find these are significant gaps that diminish the reliability of Dr. Clewes’ findings as they relate to the impairments arising from the January 2022 accident.
19Taken together on a balance of probabilities, I am not satisfied that this evidence supports the applicant’s ACB claim because of accident-related psychological injuries.
ANALYSIS
The applicant’s ACB entitlement
Did the applicant incur expenses for attendant care services?
20I find the applicant has not demonstrated she incurred attendant care services, and that the expenses are not deemed incurred.
21Section 3(7)(e) of the Schedule says an expense in respect of goods or services, such as attendant care, is not incurred unless the applicant: (1) has received the attendant care to which the expense relates; (2) has paid, promised to pay, or is otherwise legally obligated to pay the expense; or (3) the person who provided the attendant care service did so in a professional capacity as part of their ordinary employment or as a non-professional who sustained an economic loss as a result of providing the service.
22Section 3(8) of the Schedule provides that the Tribunal, for the purpose of determining the applicant’s entitlement to a benefit such as an ACB, may deem her attendant care expenses to be incurred if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of attendant care service expenses.
23The applicant submits she could not afford to hire a personal support worker given that she has been unable to work since the accident. The applicant also submits that the respondent chose to ignore overwhelming medical evidence, including the opinions of its own assessors about the applicant’s struggle to complete her activities of daily living. As such, the applicant reasons that her attendant care expenses ought to be “deemed incurred” pursuant to section 3(8) of the Schedule because the respondent unreasonably withheld payment.
24The respondent argues there is no evidence that the claimant has submitted any attendant care expenses and adds that no retroactively owing expenses will be found regardless of the entitlement question. The respondent further submits that no evidence has been led with respect to financial inability or other difficulties that would prevent the applicant from obtaining these services, and that the Tribunal should give no weight to the submission that any such expenses have been “deemed incurred” because the applicant failed to prove the respondent unreasonably withheld or delayed payment of an ACB.
25Based on her submissions, the applicant is not arguing that she has met any of the criteria set out at section 3(7)(e) of the Schedule. As such, I find this dispute narrowly focuses on whether the Tribunal should deem the expenses incurred per section 3(8) of the Schedule. For the Tribunal to deem the expenses incurred, the applicant must show the respondent unreasonably withheld or delayed payment of the ACB. In my view, the applicant has failed to do so.
26At paragraph 77 of the applicant’s submissions, she says the respondent “elected to ignore the reports and recommendations of every medical professional except for its own assessors.” I find that the respondent’s reliance on the opinions of its own assessors does not inescapably lead to the conclusion that it ignored all the other evidence it was provided. The onus is on the applicant to support her argument by pointing me to evidence that shows the respondent ignored evidence, and I find the applicant has failed to do so here. While the applicant indicates at paragraph 44 of her submissions that the respondent chose to ignore “overwhelming medical evidence,” the applicant again does not specify what evidence the respondent ignored, and I find this hindered my analysis of her claim.
27Looking at the IE reports that pertain to the ACB, I find little evidence to support the applicant’s position that the assessors believed the applicant struggled to complete her activities of daily living. Dr. Mohamed Khaled (physician) performed an IE in January 2023 that determined the applicant’s headaches caused temporary impairment—with no evidence of ongoing permanent accident-related impairment—that did not preclude her from independently completing self-care tasks and light housekeeping activities. Mr. Demetrious Kostadopoulos (occupational therapist), who performed an in-home assessment of the applicant’s functionality on behalf of the respondent in December 2022, corroborated Dr. Khaled’s opinion by concluding the applicant had sufficient tolerances to manage her self-care without assistance.
28Given the applicant has not established that the respondent unreasonably withheld or delayed payment of attendant care services, I decline to deem them incurred pursuant to section 3(8) of the Schedule.
Are the proposed attendant care services reasonable and necessary?
29I find the applicant has demonstrated some, but not all the attendant care services proposed in the Form-1 completed by Ms. Vicki Shale (occupational therapist) on October 26, 2022, are reasonable and necessary.
30Section 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 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”).
31The applicant submits that she sustained a concussion, whiplash, depression, anxiety, post-traumatic stress disorder (“PTSD”) and chronic pain as a result of the accident. She says her attendant care needs consist of meal preparation, mobility supervision while walking, bathroom hygiene, changing her bed linens, and folding and sorting laundry as assessed by Ms. Shale on a Form-1 dated October 24, 2022. The applicant says that multiple health care practitioners have corroborated these attendant care needs in their medical records and relies on the evidence of Drs. Butchey, Steven Macaluso (physiatrist), Kamini Vasudev (psychiatrist), Andrew Kertesz (neurologist), Clews, and Khaled—as well as Ms. Jennifer Arthurs (nurse), Ms. Shale, Ms. Sarah Humphrey (social worker), and Ms. Joy Wicks-Nicholls (occupational therapist)—to support her position.
32The respondent argues that the applicant has failed to prove her accident-related complaints entitle her to an ACB, and that the applicant’s treatment records do not support the specific attendant care needs she is claiming.
33The Form-1, completed by Ms. Shale on October 26, 2022, recommends several attendant care services to address impairments arising from the accident, which include:
i. Preparing the applicant for meals (including transfer to the appropriate location) for 30 minutes, seven days per week;
ii. Supervising and assisting with walking for 60 minutes, twice per week;
iii. Cleaning bathroom facilities after use for 20 minutes, four times per week;
iv. Changing bed linens, making the bed, and cleaning the bedroom for 20 minutes, once per week;
v. Ensuring comfort and safety in the bedroom for 30 minutes, seven days per week; and
vi. Hanging and sorting clothes to be laundered for 20 minutes, three days per week.
Meal preparation
34I find this attendant care service is reasonable and necessary because of the functional difficulties associated with the applicant’s visual tracking issues and headaches.
35Ms. Shale attributes the applicant’s struggles with completing complex meal preparation and cooking to fatigue, headaches, prolonged standing intolerances, and difficulties with repetitive upper movements and visual tracking.
36I did not place much weight on standing intolerances and difficulties with repetitive upper movements when considering the reasonableness and necessity of the proposed meal preparation assistance. This is because Ms. Shale’s observations of the applicant’s independent functionality conveys that the applicant’s reaching difficulties were associated with below-waist movements—not upper body movements. Further, Ms. Shale determined that the applicant had functional range of motion in her neck, shoulder, elbow, and forearm despite the applicant’s complaints of neck and right shoulder soreness. The applicant’s functionality was similarly confirmed during the assessment performed several months later by Mr. Kostadopoulos in December 2022. The applicant was also observed by both occupational therapists to demonstrate full strength in all movements of her shoulder, elbow, and wrist. While Ms. Shale determined the applicant’s grip strength was below average, the applicant nevertheless demonstrated the ability to use both right and left hand for most functional activities. In my view, this evidence hinders the applicant’s claim for this attendant care service due to difficulties with repetitive upper movements.
37Similarly, I am not persuaded that Ms. Shale’s observation of the applicant standing for 15 consecutive minutes supports the need for meal assistance because, again, the applicant’s standing limitations appear to be largely related to her low back pain as she reported to both Ms. Shale and Ms. Arthurs.
38However, I agree there is evidence of visual dysfunction owing to the accident that supports the reasonableness and necessity of meal preparation assistance as proposed by Ms. Shale. Dr. Riyad Khamis (neuro-optometrist) and IE assessor Dr. Amanda Kim (optometrist) agreed—in February and March of 2024, respectively—that the applicant sustained a variety of vision impairments as a result of the accident that include convergence insufficiency and oculomotor dysfunction (i.e., eye tracking), as well as visual information processing issues, vergence dysfunction and poor depth perception. I agree these conditions would hinder the applicant’s ability to prepare meals because Dr. Khamis’ opinion was that the applicant’s vision impairments caused the headaches and difficulty concentrating that she experienced while performing “near work,” which I take to include meal preparation. While Mr. Kostadopoulos maintains that the applicant does not require meal preparation assistance, I find the extent to which he tested the applicant’s ability to prepare meals is unclear and not documented in his report, which causes me to afford less weight to his opinion. Similarly, Ms. Shale’s report is equally vague as to whether she independently observed the applicant’s ability to prepare meals as part of her assessment. However, I am persuaded to give more weight to Ms. Shale’s recommendation for assistance because it is supported by Dr. Khamis’ medical opinion, and further, by the guarded prognosis offered by IE assessor Dr. Amanda Sim (optometrist), who noted that the applicant’s symptoms have persisted since the accident with a low level of recovery.
39Taken together, I find this evidence demonstrates that 30 minutes of assistance seven days per week is reasonable and necessary for the meal preparation proposed in the Form-1.
Walking supervision and assistance
40I am not persuaded that this attendant care service is reasonable and necessary.
41Ms. Shale’s report says that “[d]ue to obtaining headaches, fatigue, experiencing noise sensitivity and cognitive limitations,” the applicant requires assistance with accessing the community, work, and attending appointments. However, I find Ms. Shale does not substantiate that these impairments hinder the applicant’s mobility and access to the community. In fact, Ms. Shale’s analysis of the applicant’s functional independence in the community access section of her report does not identify cognitive difficulties or fatigue as factors that impair the applicant’s ability to be mobile in the community or run errands. I therefore do not accept that the applicant’s cognitive difficulties or fatigue contribute to the need for walking supervision and assistance as proposed by Ms. Shale.
42While I accept that the applicant’s headaches are likely aggravated by increased noise in community environments such as grocery stores, I afforded little weight to Ms. Shale’s recommendation for walking supervision and assistance because she relied fully on the applicant’s self-report and did not independently assess the applicant’s noise tolerance in the community to inform her recommendation. Ms. Shale’s report also reveals that her file review of the applicant’s medical history did not identify noise sensitivity as a concern. While the applicant’s submissions point to subsequent complaints about noise sensitivity to other health care practitioners, such as Drs. Barbara Taylor (audiologist) and Macaluso, as well as Ms. Wicks-Nicholls, I find the applicant failed to direct me to an opinion voiced by any of these professionals that corroborated Ms. Shale’s recommendation. For example, Dr. Macaluso’s report identifies noise intolerances and headaches as an ongoing limitation and restriction, but his treatment recommendations are focused on medication and do not contemplate the attendant care proposed by Ms. Shale. In my view, the lack of corroborating evidence diminishes the weight of Ms. Shale’s opinion that walking supervision and assistance in the community is reasonable and necessary.
Bathroom and bedroom hygiene
43I find that the applicant had not proven this attendant care service is reasonable and necessary.
44In the homemaking section of her report, Ms. Shale assessed the functionality of the applicant as needing moderate assistance with vacuuming, mopping, and bending to clean lower objects such as bathtubs and toilets. Ms. Shale bases her proposal on the applicant’s difficulties with sustained or repetitive reaching, lifting, and carrying owing to pain, headaches, and fatigue.
45I find Ms. Shale attributes the applicant’s bending limitations to partial range of motion in her lumbar spine, and the applicant’s own reports to Ms. Shale and other health care practitioners corroborate lower back pain as the cause of her bending and reaching difficulties. The functional abilities evaluation later performed by IE assessor Mr. Vincent Yip (physiotherapist) in July 2023 also identified restrictions in the degree that the applicant could bend forward at the waist. However, I diminished the weight of the applicant’s back pain as a supporting feature of her claim because her submissions do not point me to evidence of low back pain prior to October 2022, which is six months after the April 2022 accident. As such, and in contrast to her other physical injuries, I find the January 2022 accident is not a necessary cause of the applicant’s low back pain. It follows that impairments arising from the applicant’s low back pain cannot support the reasonableness and necessity of Ms. Shale’s recommendation.
46I further find that the probative value of Ms. Shale’s recommendation is diminished overall because it is unclear to me whether Ms. Shale independently assessed the applicant’s functionality while vacuuming or mopping to inform her opinion that assistance with these activities is required in light of the applicant’s sensitivity to noise and visual tracking issues.
47Pertaining specifically to linen changes and bed making, Ms. Shale notes that the applicant requires assistance from her family due to fatigue and headaches. However, it does not appear that Ms. Shale assessed the applicant’s functionality in this context as I could not locate evidence of this in her report. Given that Ms. Shale appears to rely solely on the applicant’s self report to inform this recommendation, I find the discrepancies in the applicant’s account of her abilities to be a hinderance to her claim. For example, the applicant told Ms. Shale that she was able to make her bed, albeit at a slow and controlled pace. I therefore find that the applicant has not shown this part of the ACB claim to be reasonable and necessary.
Bedroom safety
48I am not persuaded that this attendant care service is reasonable and necessary.
49While I accept the applicant’s own reports to Ms. Shale of relying heavily on the emotional support of family members to cope with her psychosocial limitations, my finding that the January 2022 accident is not a necessary cause of the applicant’s psychological symptomology weighs heavily here because Ms. Shale relies exclusively on the applicant’s psychological difficulties to inform her recommendation. In my view, Ms. Shale’s report corroborates the absence of psychological difficulties until after the April 2022 accident. Her own review of the applicant’s medical history, while sparse, highlights two entries in Dr. Butchey’s clinical notes and records—one on March 11, 2022 (i.e., prior to the subsequent accident) that she describes as pertaining to the applicant’s physical health conditions and the second on April 12, 2022 (i.e., after the subsequent accident) that she describes as pertaining to the applicant’s mental health conditions.
Clothes sorting and hanging
50I find that Ms. Shales’ recommendation to provide assistance with hanging and sorting laundry for 20 minutes thrice weekly is reasonable and necessary.
51Ms. Shale offers that the applicant has not been able to tend to laundry without assistance since the accident. The applicant reported to Ms. Shale that while she can load her washer with laundry and transfer it to the dryer on her own, she becomes overwhelmed and fatigued when sorting and folding the clean laundry. In my view, the applicant’s account of her function is reasonably supported by the cognitive testing performed by both Ms. Shale and Mr. Kostadopoulos, which indicates performance consistent with a mild cognitive impairment. The applicant made subsequent complaints (i.e., memory loss, being easily distracted, and difficulty with pacing and planning) to Ms. Humphrey in November 2022 that I find to be consistent with these test findings. It appears too, that the applicant’s cognitive struggles persisted at the time she was assessed by Ms. Wicks-Nicholls in September 2023. Ms. Wicks-Nicholls performed testing that measured frequency of symptoms often associated with executive dysfunction. The results identified issues with thinking ahead and planning, confusing details, distraction, and trouble with decision making that, in my view, are consistent with the applicant’s cognitive testing results.
52Taken together, I find this evidence demonstrates that 20 minutes of attendant care services three times per week to assist with sorting and folding her clean laundry is reasonable and necessary.
The applicant’s entitlement to the disputed OCF-18s
53I find the applicant is entitled to some, but not all of the goods and services proposed in the OCF-18s disputed by the parties.
54To receive payment for an OCF-18 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.
55The applicant’s submissions are individually related below for each of the disputed OCF-18s. In contrast, the respondent’s submissions articulate a position that globally applies to all the disputed OCF-18s. The respondent’s position is that all the OCF-18s were reasonably adjusted in conjunction with the available medical records and expert assessments, which include the IE reports by Drs. Khaled and Kertesz as well as Mr. Kostadopoulos.
Physiotherapy in the amount of $2,633.50
56I am not persuaded that the applicant has shown this OCF-18 to be reasonable and necessary.
57The applicant submits that this OCF-18 aims to reduce her pain, improve her range of motion and strength, and increase her participation in activities of normal living with concussion-targeted physiotherapy. The applicant explains that the respondent ostensibly denied this OCF-18 because the physical examination performed by Dr. Khaled could not identify any valid indicators to support residual or ongoing permanent accident-related injuries or impairments despite offering a contradictory opinion that the applicant continued to suffer from severe, ongoing daily headaches.
58I find the applicant points to the respondent’s denial notice of January 26, 2023, to support her claim. However, this notice does not pertain to the disputed OCF-18. Rather, it advises the applicant that she no longer qualifies for an ACB and that this benefit will be discontinued as of February 3, 2023. Further, the applicant does not point to the OCF-18 in her submissions, and I could not locate it in her document index. To prove the reasonableness and necessity of an OCF-18, the applicant must, at minimum, produce the OCF-18 as evidence. Given that the applicant has not done so, her claim must fail.
Massage therapy in the amount of $1,317.83
59I find this OCF-18 is not reasonable and necessary. For context, this OCF-18 was completed by Ms. Jennifer Saunders (massage therapist) on March 2, 2023. The OCF-18 proposes to reduce pain, increase range of motion, and decrease the severity of the applicant’s headaches and migraines through 17 one-hour sessions of massage therapy at a cost of $58.19 per hour. There is also a $200.00 fee for completing the OCF-18.
60The applicant submits this OCF-18 is reasonable and necessary because it aims to help return her to activities of daily living by alleviating pain in her back and neck, as well as her post-concussion symptoms. The applicant says that Dr. Khaled’s report does not support the respondent’s decision to deny this OCF-18 because Dr. Khaled determined that the applicant has headaches and migraines—as well as nausea, dizziness, photophobia, and phonophobia—that constitute an impairment. The applicant relies on the repeated recommendations for massage therapy offered by Drs. Shah and Butchey as well as Ms. Shale to support her claim.
61I find that Dr. Butchey’s entry of October 2023 does not recommend massage therapy as indicated in the applicant’s submissions. Rather, Dr. Butchey indicates the applicant’s husband feels the applicant would benefit from massage therapy.
62While I accept that several health care practitioners have, in fact, recommended massage therapy as recently as April 2023, I find the applicant told Mr. Yip in July 2023 that she had tried massage therapy once earlier that year, but it had aggravated her symptoms, and she has not returned. Similarly, Ms. Humphrey’s October 2022 report corroborates the applicant’s complaints of massage therapy exacerbating her headaches. Given that the goal of this OCF-18 is to reduce pain—and specifically the headaches and migraines the applicant experiences—I disagree it would be reasonable and necessary for the applicant to undergo treatment that she credits with exacerbating her pain symptoms.
63On balance, I am persuaded the applicant has derived no benefit from massage therapy that she has undertaken to date, and that further treatment of this nature as proposed in this OCF-18 is therefore not reasonable and necessary.
Occupational therapy in the amount of $2,901.53
64I find the applicant is entitled to this OCF-18.
65For context, this OCF-18 was completed by Ms. Brina Puspoky (occupational therapist) on May 20, 2023. The OCF-18 aims to reduce pain through occupational therapy services that provide education, strategies, and device recommendations as appropriate to address the applicant’s physical, cognitive, and emotional symptoms. The proposed services include half-a-dozen, two-hour in-home sessions of occupational therapy at a cost of $199.50 each. The OCF-18 also contemplates an hour of travel time per session at a cost of $99.75 per hour; mileage of 30 kilometres per trip at a cost of $18.00 per session; 30 minutes of planning time at a cost of $49.88 per session; two hours to research and develop educational materials and resources at a cost of $199.50; three hours to prepare a progress report at a cost of $299.25; and a $200.00 fee for completing the OCF-18.
66The applicant submits that this OCF-18 aims to reduce pain, provide education and strategies to accommodate symptoms, and facilitate independence and re-engagement in daily living and leisure activities. The applicant relies on the records of Drs. Alexander Melinyshyn (neurologist), Vasudev, and Macaluso, as well as Ms. Shale, Ms. Humphrey, and Ms. Wicks-Nicholls to corroborate her need for occupational therapy owing to physical pain, cognitive impairments, and depression symptoms.
67In my view, the bulk of the evidence presented by the applicant corroborates the reasonableness and necessity of this OCF-18. I find there is a clear nexus between the injuries reported at Part 6, and the goals and treatment proposed at Parts 9 and 12, respectively, that is supported by the medical evidence in this case.
68Ms. Shale’s October 2022 report is persuasive because it assesses and recommends occupational therapy services that corroborate those proposed in the OCF-18, including the provision of equipment and education in its use; education regarding pacing, energy conservation, body mechanics, sleep hygiene, pain management strategies, and relaxation skills; and setting goals to promote increased activation and resumption of daily living activities within tolerances. Similarly, Ms. Humphrey’s November 2022 social work assessment report makes a referral to an occupational therapist to support the applicant’s planning and pacing appropriate to energy levels. Dr. Macaluso’s report recommends occupational therapy to support the applicant’s neurocognitive rehabilitation, and specifically to reiterate pacing activities and education about limitations posed by the applicant’s concussion. I find this supports the reasonableness and necessity of the OCF-18 because: (1) the applicant has a diagnosed concussion; (2) a concussion is listed at Part 6 of the OCF-18; and (3) the proposed treatment aims to address the applicant’s cognitive impairment, which Dr. Melinyshyn related to her concussion in his May 2022 report.
69I gave little weight to the respondent’s omnibus argument when considering this OCF-18 because it did not pinpoint the specific evidence it relies on to show that the OCF-18 was reasonably adjusted against the medical records and expert assessments available to it.
70Taken together, I agree this evidence establishes, on a balance of probabilities, the reasonableness and necessity of this OCF-18. I therefore find the applicant is entitled to goods and services as proposed.
Cognitive ability functioning assessment in the amount of $2,200.00
71I find the applicant has demonstrated entitlement to the cognitive assessment proposed in this OCF-18. For context, this OCF-18 was completed by Ms. Wicks-Nicholls on August 18, 2023. The OCF-18 proposes to identify current functional and cognitive tolerances to assist with future rehabilitation planning by conducting an occupational therapy cognitive functional abilities evaluation at a cost of $2,000.00. The OCF-18 also proposes a $200.00 form completion fee.
72The applicant submits she incurred this OCF-18 and contends that the reasonableness and necessity of the proposed assessment is underscored by the respondent’s repeated insistence that there was a lack of medical evidence to corroborate her ongoing symptoms and need for treatment.
73I am persuaded that the applicant’s medical evidence demonstrates that the cognitive assessment proposed by Ms. Wicks-Nicholls is reasonable and necessary. The applicant’s cognitive difficulties—which Dr. Melinyshyn attributes to her concussion—were first documented by Dr. Butchey in March 2022 (i.e., “issues with confusion and doing things she doesn’t realize she is doing”) and as recently as February 2024 when he reported the applicant admits to significant issues with her memory and has to re-read and think a lot because she has trouble making sense of things and retaining information. In fact, I find the medical evidence establishes that the applicant’s cognitive difficulties have persisted throughout the duration of her claim. For example, the applicant reported cognitive impairments to Ms. Humphrey in November 2022 that consisted of memory loss, being easily distracted, and difficulties with pacing and planning. Dr. Macaluso documented complaints of ongoing memory concerns in November 2023 that included cognition and problem-solving difficulties. Occupational therapy assessments conducted by Ms. Shale and Mr. Kostadopoulos, indicated mild cognitive impairment.
74Given the sustained prevalence of cognitive symptoms from the time of the accident, I find that an assessment of the applicant’s cognitive functioning is reasonable and necessary on a balance of probabilities, and agree she is entitled to this OCF-18.
Rehabilitation therapy services in the amount of $2,384.12 and physiotherapy services in the amount of $3,342.64
75I find the applicant is entitled to certain aspects of these OCF-18s. I have analysed the two OCF-18s together because they propose near identical treatment for her accident-related injuries.
76For context, the rehabilitative services OCF-18 was completed by Ms. Elizabeth Fox (physiotherapist) on May 21, 2023. The OCF-18 proposes to reduce pain, increase range of motion and strength, and improve balance through 16 one-hour sessions of musculoskeletal and vestibular physiotherapy at a cost of $99.75 per hour. As well, the OCF-18 proposes eight 20-minute blocks for education and communication outside of treatment sessions and contact with other service providers at a cost of $32.92 each; therapeutic and home exercise equipment at a cost of $200.00; three blocks of 20 minutes for Ms. Fox to do equipment research and contact vendors at a cost of $32.92 each; and a $200.00 fee for completing the OCF-18.
77The physiotherapy OCF-18 was completed by Mr. Arpan Shah (physiotherapist) on April 14, 2022. The OCF-18 proposes to reduce pain and increase range of motion and strength through 24 one-hour sessions of physiotherapy at a cost of $99.75 per hour. As well, the OCF-18 proposes a one-hour re-assessment at a cost of $99.75; three hours to prepare a physiotherapy report at a cost of $299.25; six 15-minute blocks of planning and communication with the applicant to include clinical note reviews and consultations with team members at a cost of $24.94 each; exercise equipment at a cost of $200.00; and a $200.00 fee for completing the OCF-18.
78The applicant submits that the purpose of the rehabilitation OCF-18 is to support community access and increase her participation in activities of daily living by minimizing the impact of her symptoms on her function. She says Ms. Shale, Ms. Fox, Ms. Wicks-Nicholls, and Dr. Macaluso support this OCF-18 to facilitate community-based rehabilitation. The applicant says the physiotherapy OCF-18 is reasonable and necessary because it addresses her concussion symptoms to improve her function, concentration, and relaxation.
79I agree that the physiotherapy sessions are reasonable and necessary. I find the applicant suffers from dizziness relating to the concussion sustained in the accident. The applicant complained of dizziness as early as February 2022 during her consultation with Dr. Shah, who proposed physiotherapy to treat her physical injuries and concussion-related symptoms. Since that time, the medical evidence has included repeated complaints of dizziness to multiple health care practitioners, including Ms. Shale, Dr. Khaled, and Dr. Taylor. Dizziness was also identified as a lifting limitation during the functional abilities evaluation conducted by Mr. Yip. I was further persuaded by the vestibular testing conducted by Ms. Fox, whose September 2023 report indicates she used the Balance Error Scoring System as an objective measure of statis postural stability (i.e., ability to maintain balance). Ms. Fox indicated that the test results placed the applicant in the “very poor category.”
80While Ms. Humphrey noted in October 2022 that physiotherapy would often exacerbate the applicant’s headaches, the applicant told Dr. Khaled two months later in December 2022 that she found physiotherapy to be “slightly helpful” in alleviating her symptoms. In August 2023, Dr. Khaled reported that the applicant’s neck pain symptoms and headaches were better when doing physiotherapy. In my view, the evolution in the applicant’s response to physiotherapy is explained by Ms. Fox, who notes the applicant had increased her tolerance and improved the range of motion in her neck after earlier receiving 17 sessions. Given that the applicant is reportedly deriving some therapeutic benefit from physiotherapy, and that her vestibular symptoms and pain endure, I find continued treatment of this nature as proposed in the OCF-18s is reasonable and necessary.
81While I also agree the applicant is entitled to the OCF-18 completion fee in both OCF-18s, I do not accept that the remaining services and goods proposed by Ms. Fox are reasonable and necessary. No explanation is provided for why communication outside of treatment sessions and contact with other service providers is required to achieve the treatment goals specified in the OCF-18. I find the applicant has not substantiated that she needs equipment because particulars are not specified in the OCF-18 and Ms. Fox indicates that equipment will not be invoiced if it is not needed. It follows that vendor contact and equipment research is also not reasonable and necessary, given Ms. Fox’s apparent uncertainty as to whether home or therapeutic exercise equipment will be required to support the applicant’s recovery.
82For similar reasons, I do not agree that the exercise equipment proposed by Mr. Shah is reasonable and necessary. The applicant’s submissions do not address equipment and the additional comments regarding these goods provide no detail as to what equipment is contemplated.
83I gave little weight to the respondent’s omnibus argument when considering this OCF-18 because it did not pinpoint the specific evidence it relies on to show that the OCF-18 was reasonably adjusted against the medical records and expert assessments available to it.
84Pertaining to the OCF-18 completed by Ms. Fox, I am persuaded that the applicant is entitled to 16 sessions of vestibular physiotherapy and the OCF-18 form completion fee. I find the applicant is not entitled to the remaining goods and services proposed in the OCF-18 because the applicant has not established that they are reasonable and necessary. Pertaining to the OCF-18 proposed by Mr. Shah, I find the applicant is entitled to the whole save for the exercise equipment.
Physiotherapy assessment in the amount of $499.25
85I find the applicant has not demonstrated this OCF-18 is reasonable and necessary.
86The applicant submits that this OCF-18 is reasonable and necessary to investigate her treatment progress and provide insight into her needs by determining how well physiotherapy is addressing her conditions. The applicant contends that the respondent’s denial of this plan was improper because its grounds (i.e., that the respondent had not provided approval for ongoing physiotherapy services) do not constitute medical reasons.
87While I generally accept that progress reports serve a useful purpose during the course of treatment, I find the goal of this OCF-18 to be vague and unsupported. Part 9 indicates only that funding is sought for a progress report and the additional comments provided by Ms. Fox indicate physiotherapy progress for the period of March 24, 2023, to present. While the applicant is not strictly required to point to the treatment plan that this progress report relates to, I find that her failure to do so leaves little basis to establish the reasonableness and necessity of the proposed progress report. The applicant, at minimum, would need to establish a nexus between the progress report and physiotherapy treatment that was approved by the respondent. Given that the respondent’s reason for denying this plan is that it had not provided approval for funding ongoing physiotherapy services, it is unclear to me as to whether a nexus exists. I therefore disagree that the applicant is entitled to this OCF-18.
88Speaking further to the respondent’s reasons for denying this OCF-18, I find the requirement set out at section 38(8) of the Schedule is met, which, in this case, requires the respondent to provide the medical reasons and all of the other reasons why it considers the progress report not to be reasonable and necessary. The Tribunal and Courts have held that an insurer’s reasons should allow an unsophisticated person to understand why a benefit claim was denied and make an informed decision in response [see, for example: 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT); and M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT)].
89I am satisfied that the reasons provided by the respondent contextually meet this standard. While I agree that the respondent did not provide a medical reason for denying the OCF-18, I find the OCF-18 did not propose treatment of a medical condition. It proposed only a progress report. The notice clearly conveys the respondent was denying the OCF-18 because it had not approved ongoing treatment that would require a progress report. The respondent further invited the applicant to submit an OCF-18 for treatment if she wished to obtain further physiotherapy services. In my view, this is a valid reason for denying the OCF-18 that leaves no ambiguity as to the applicant’s options to respond.
Audiometric speech language services in the amount of $690.00
90I find the applicant has demonstrated this OCF-18 is reasonable and necessary.
91For context, this OCF-18 was completed by Dr. Taylor on February 24, 2023. The OCF-18 proposes a 90-minute hearing and auditory processing skills assessment that costs $225.00; a 30-minute counselling session on the test results at a cost of $50.00; one hour to prepare a written report of test results and interpretation with treatment recommendations at a cost of $75.00; two custom-fitted earplugs at a cost of $240.00 for the pair; and a $100.00 fee to complete the OCF-18.
92The applicant submits that this OCF-18 is reasonable and necessary because it aims to investigate and propose treatment to address her “debilitating” sensitivity to sound since the accident. The applicant asserts that the respondent’s reliance on Dr. Khaled’s opinion to deny this OCF-18 is improper because Dr. Khaled performed a musculoskeletal assessment that does not inform the applicant’s hearing function. The applicant adds that Dr. Khaled is neither qualified to comment on an audiology assessment, nor had been asked by the respondent to voice an opinion on this OCF-18.
93As well, the applicant asserts that the respondent’s notice was not given to her within 10 days of receiving the OCF-18.
94I do not accept the applicant’s assertion that the respondent failed to comply with the 10-day requirement at section 38(8) of the Schedule. The applicant’s submissions do not point to the respondent’s denial notice in evidence to confirm it was indeed provided on March 22, 2023. And while I agree the OCF-18 was completed by Ms. Fox on February 28, 2023, I find the date it was actually submitted to the respondent is unclear. Looking at the OCF-18 in evidence, I discern more than one fax transmission date. There is a header on one page that indicates the OCF-18 was transmitted on March 3, 2023, and a second header that appears on each page of the OCF-18 that indicates a transmission on March 14, 2023. In any event, I am not satisfied that either of these headers confirm the fax was received at the intended destination(s), and the applicant’s submissions do not point me to persuasive evidence (i.e., a fax confirmation report) that proves the OCF-18 was, in fact, submitted to the respondent on February 28, 2023 as alleged.
95I do, however, agree that this OCF-18 is reasonable and necessary on its merits. The concussion specified at Part 6 is corroborated by the emergency room report of Dr. Shah, who additionally noted related symptoms of sound sensitivity (i.e. “phonophobia”), dizziness, and headaches at that time. The February 2022 records of Dr. Butchey also document complaints of phonophobia. I find the goal of helping the applicant to cope in busy and noisy situations at Part 9 is reasonable, considering her complaints of noise aversion have persisted since the accident and appear in clinical notes and records of various treating and assessing professionals subsequent to Dr. Shah’s diagnosis. In my view, the goods and services proposed appear relevant to the treatment goal.
96I gave little weight to the respondent’s omnibus argument when considering this OCF-18 because it did not pinpoint the specific evidence it relies on to show that the OCF-18 was reasonably adjusted against the medical records and expert assessments available to it.
Nurse case management services in the amount of $5,231.47
97I find this OCF-18 is not reasonable and necessary.
98For context, this OCF-18 was completed by Ms. Shale on October 28, 2022. The OCF-18 proposes “ongoing identification and coordination/organization of goods, services, and providers” through eight, two-hour sessions involving file review and contact with the applicant’s health care team at a cost of $182.86 per session. As well, the OCF-18 proposes eight 90-minute trips for Ms. Arthur to meet with the applicant at her home at a cost of $137.15 per trip; $86.52 in mileage costs for each 144.2-kilometre round-trip to the applicant’s home; eight one-hour sessions for Ms. Arthur to do research, medical coordination, and make contact with providers at a cost of $91.43 per session; two three-hour blocks to produce reports, faxes, and letters at a cost of $274.29 per block; and a $200.00 fee to complete the OCF-18.
99The applicant submits that case management is reasonable and necessary because of her cognitive difficulties, pain, and depressive symptoms. The applicant says the respondent has received “copious” medical and rehabilitation records that show these symptoms persisted after the OCF-18 was denied, and that the respondent failed to execute its duty to adjust her claim in good faith. The applicant relies on the October 2022 nurse case management report by Ms. Arthur to support her claim.
100I placed little weight on the applicant’s depression when considering the reasonableness and necessity of this OCF-18 because her depression is not attributable to the accident and because the applicant’s submissions did not point to evidence that stablished a nexus with her cognitive struggles.
101I find that Ms. Arthurs’ October 2022 report does not support the reasonableness and necessity of this OCF-18. She did not assess the applicant’s cognitive functioning to determine the extent of her difficulties and the degree to which they merit the case management services proposed in the OCF-18. Her file review is sparse and includes just two entries in Dr. Butchey’s records—neither of which speak to cognitive testing or suggest that the applicant requires the case management services proposed in the OCF-18.
102Further, I find the case management services in this OCF-18 are duplicative, as assistance with “coordination of attendant care and other health services as needed” is already contemplated in the OCF-18 for occupational therapy services, which I have determined is reasonable and necessary. As well, the medical evidence filed with the Tribunal for this hearing persuades me that the applicant is already receiving service coordination support her family physician (i.e., to manage her condition and coordinate referrals to specialists as needed), and I was not pointed to evidence in Dr. Butchey’s notes that suggests the applicant is struggling to obtain medical referrals or keep her appointments with specialists.
Vision therapy assessment proposed by Dr. Khamis in the amount of $1,200.00
103I am not persuaded that this OCF-18 is reasonable and necessary.
104The applicant submits that she incurred the cost of this OCF-18 and received a report dated February 24, 2024 by Dr. Riyad Kharmis. She contends that the respondent’s decision to require a section 44 IE proves the OCF-18’s reasonableness and necessity, and adds that the respondent’s IE assessor (i.e., Dr. Sim) agreed with Dr. Kharmis’ opinion. The applicant asserts that the respondent’s reliance on the opinions of Drs. Khaled and Kertesz is inappropriate as neither health practitioner is qualified to comment on neuro-optometry issues, nor were they asked to by the respondent.
105I find the applicant’s submissions on this OCF-18 are unclear. The CCRO and the applicant’s submissions confirm she is disputing a May 2023 OCF-18 completed by Dr. Khamis in the amount of $1,200.00 for a vision assessment. However, her submissions direct me to the respondent’s denial notice for a completely different OCF-18 completed by Ms. Shale in November 2023 for $2,108.75. The applicant does not point me to Dr. Kharmis’ OCF-18 in evidence and the document index that the applicant provided with her submissions does not list the disputed OCF-18, nor could I locate it in evidence. Looking at Dr. Sim’s IE report, I see her examination addresses the OCF-18 completed by Ms. Shale, and not Dr. Kharmis.
106Given that the applicant has not produced the OCF-18 in dispute, which is the minimum requirement to prove its reasonableness and necessity, I find the applicant has not demonstrated entitlement to this OCF-18.
Award
107I find the respondent is liable to pay an award in the amount of 10 per cent of the total benefits payable.
108The applicant seeks an award under section 10 of Regulation 664. Under section 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.” [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
109The applicant submits that the respondent unreasonably denied her access to physiotherapy by keeping her in the MIG despite sustaining a concussion, and then failing to reconsider her treatment upon removing her from the MIG. The applicant goes on to say the respondent ignored medical records indicating consistent reports of injury and impairment. The applicant maintains that the respondent relied on incomplete or “defective” IEs and failed to apply the medical information in those reports when considering benefit entitlement. The applicant specifies that Dr. Khaled’s musculoskeletal examination of the applicant was inappropriately applied to deny concussion-based physiotherapy, attendant care, occupational therapy, vision therapy, and audiological assessments.
110In her reply, the applicant reiterates that the respondent’s bad faith causation argument supports the need for a special award to discourage this kind of imprudent, stubborn, inflexible, and unyielding behaviour.
111The respondent argues that the applicant has failed to show her award claim has merit and maintains that it did not act unreasonably or delay benefit payments to the applicant. The respondent says that, in light of the applicant’s subsequent accident in April 2022, it was entirely reasonable to consider whether the concussion diagnosis was attributable to the January 2022 accident. The respondent adds that its reliance on its IE evidence does not prove its conduct attracts an award.
112I agree the respondent acted unreasonably by maintaining its MIG position in August 2022 despite knowing at the time that the applicant had sustained a concussion as a result of the January 2022 accident. This is made out in an email from the respondent, dated August 11, 2022, that answers a legal letter from Ms. Victoria Edwards (associate lawyer for SISKINDS law firm) dated several days earlier on August 2, 2022. The email, sent by Ms. Kiera Salmon (claims advisor), acknowledges that an Attending Physician’s Statement of Disability (“APSD”) completed in June 2022 by Dr. Butchey indicates the applicant suffered a concussion. Ms. Edwards’ letter draws attention to the fact that Dr. Butchey attributed the concussion to the January 2022 accident.
113I find that Ms. Salmon erroneously qualifies the applicant’s concussion as a minor injury and offers a medical opinion outside her the scope of her role as an insurance adjuster. In her email, Ms. Salmon writes: “A concussion is not enough to remove a client from MIG without supporting testing, as most concussion resolve within 12 weeks.” In my view, this interpretation, at best, is inconsistent with section 3(1) of the Schedule, which defines a minor injury as meaning: “…one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
114I further find that Ms. Salmon does not challenge what accident caused the concussion in her email, which renders untenable the respondent’s position that it was “entirely reasonable” to take time to consider whether the concussion diagnosis was attributable to the subject accident and whether MIG applied. It is plain to me that causation was not raised by the respondent as a reason for maintaining its MIG position in August 2022.
115The respondent did not re-address the applicant’s entitlement to the April 2022 OCF-18 completed by Mr. Shah until nine months later on May 1, 2023 when Dr. Khaled completed an IE paper review. I agree that this review was deficient insofar as the goods and services recommended by Mr. Shah. Dr. Khaled determined that the OCF-18 was not reasonable and necessary. I find the bulk of Dr. Khaled’s analysis serves only to recite a series of findings from studies that offer little insight because he does not apply them to applicant’s medical conditions. Further, I find his conclusion that the applicant had appropriate and adequate facility-based soft tissue rehabilitation therapy is unsupported. His analysis does not contemplate treatment the applicant had undertaken, or her response to that treatment. Similarly, the findings he relies on from the in-person examination he conducted in December 2022 do not address physiotherapy or any treatment for that matter.
116Similar deficiencies appear in Dr. Khaled’s assessment of the OCF-18 completed by Ms. Taylor. Dr. Khaled bases his assessment on the understanding that this OCF-18 proposes physiotherapy services and assessment. I find this is incorrect because the OCF-18 clearly indicates the proposed services are an assessment of hearing and auditory processing skills and counselling on test results. Further, Dr. Khaled’s opinion that custom earplugs are not reasonable and necessary is unsupported. While Dr. Khaled says his earlier conducted in-person examination did not identify any objective evidence of ongoing accident-related impairment, I find his paper review does not establish a clear nexus between the applicant’s noise sensitivity complaints and the result of the musculoskeletal examination and range of motion testing he performed.
117I am unclear as to the extent that the respondent relied on Dr. Khaled’s paper review to deny these OCF-18s because the parties did not point to the corresponding denial notices in evidence. However, the position of the respondent is that the OCF-18s were reasonably adjusted in conjunction with the medical records and expert assessments available to it, inclusive of the IEs it obtained. Given my analysis of Dr. Khaled’s assessment of at least two of the disputed OCF-18s, I find the respondent’s adjustment of the applicant’s claim could not have been reasonable.
118The applicant seeks an award of 50 per cent of all benefits payable on the basis of blameworthiness, the applicant’s vulnerability, the impact of her delayed treatment on her recovery, the need for deterrence, and the financial advantage accrued by the respondent’s withholding of payment. I agree most of these factors merit consideration but disagree that the severity of the respondent’s conduct in this case rises to the maximum threshold permitted by law. Further, while I am satisfied the respondent relied to some extent on Dr. Khaled’s IE to adjust the applicant’s claim and maintain its OCF-18 denials, the degree to which Dr. Khaled’s assessment informed its denials is unclear. In my view, an award of 10 per cent is proportional for this case.
ORDER
119The applicant has shown that the following attendant care services are reasonable and necessary: (1) meal preparation assistance of 30 minutes, seven days per week; and (2) 20 minutes of assistance with sorting and hanging clean laundry three times per week. The benefits for these specific attendant care services will be payable when proven incurred. The applicant has not shown the remaining attendant care services to be reasonable and necessary.
120The applicant is entitled to the following OCF-18s:
i. All proposed goods and services plus interest at issue 2(iii) above (i.e., occupational therapy);
ii. All proposed services plus interest at issue 2(iv) above (i.e., cognitive ability functioning assessment);
iii. 16 sessions of vestibular physiotherapy and the form completion fee plus interest at issue 2(i) above (i.e. rehabilitation therapy services);
iv. All the proposed goods and services—save for exercise equipment—plus interest at issue 2 above (i.e., physiotherapy services); and
v. All proposed goods and services plus interest at issue 2 above (i.e., audiometric speech language services).
121The applicant is not entitled to any of the other disputed OCF-18s, whether in whole or part.
122The respondent is liable to pay an award in the amount of 10 per cent of the total benefits payable at the rate of two per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
Released: May 28, 2025
Michael Beauchesne
Adjudicator