Licence Appeal Tribunal File Number: 23-001954/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:
Jacquline Mansour
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Kateryna Vlada, Counsel
For the Respondent:
Simran Walia, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jacquline Mansour, the applicant, was involved in an automobile accident on October 28, 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, Allstate Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from November 26, 2020, to October 28, 2022?
ii. Is the applicant entitled to $3,157.39 for physiotherapy services proposed by Alma Rehab in a treatment plan dated July 5, 2021?
iii. Is the applicant entitled to $2,825.37 for physiotherapy services proposed by Alma Rehab in a treatment plan dated September 20, 2021?
iv. Is the applicant entitled to $2,493.35 for physiotherapy services proposed by Alma Rehab in a treatment plan dated January 5, 2022?
v. Is the applicant entitled to $2,288.31 for physiotherapy services proposed by Health Pro Wellness in a treatment plan dated May 20, 2021?
vi. Is the applicant entitled to $1,488.43 for physiotherapy services proposed by Health Pro Wellness in a treatment plan dated June 8, 2021?
vii. Is the applicant entitled to $2,200.00 for a chronic pain assessment proposed by Health Pro Wellness in a treatment plan dated March 1, 2023?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to $2,200.00 for a chronic pain assessment proposed in a treatment plan dated March 1, 2023, plus any applicable interest pursuant to s. 51.
4The applicant is not entitled to non-earner benefits.
5The applicant is not entitled to any of the remaining treatment plans in dispute.
ANALYSIS
Non-Earner Benefit
6I find that the applicant has not met her onus to demonstrate entitlement to NEBs.
7Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
8The applicant relies on an OCF-3 from Dr. Tarulli, chiropractor, dated November 4, 2020, which states that she suffers a complete inability to carry on a normal life. Dr. Tarulli also completed a questionnaire regarding the applicant’s entitlement to NEBs on January 20, 2021. He wrote that she had challenges with all physical tasks that required forward bending, cervical end ranges of motion, and standing or sitting for longer than 20 minutes. I am not compelled by either of these documents on their own, given the lack of detail as to the kinds of activities the applicant was restricted in completing, or the extent of the restriction.
9The applicant underwent an assessment with Fahimeh Aghamohseni, psychologist, on March 18, 2021. She indicated that the applicant’s symptoms had a negative effect on various aspects of her daily life, including potential employment, household chores, personal care, family relationships, and engagement in social and meaningful life activities. However, Ms. Aghamohseni did not comment on whether the applicant suffered from a complete inability to carry on a normal life.
10Ms. Aghamohseni provided psychological treatment to the applicant and prepared a progress report dated September 15, 2021. The applicant relies on Ms. Aghamohseni’s opinion that she continues to struggle with her ability to fully perform her normal daily activities (e.g. household tasks, mobility, selected care tasks for herself, outings with her family, and social and meaningful life activities). Again, Ms. Aghamohseni does not render an opinion on whether the applicant suffered a complete inability to carry on a normal life, and does not explain the extent to which she was struggling with her daily activities. I also find Ms. Aghamohseni’s description of the activities to lack meaningful detail. I accordingly find that this document does not assist the applicant in proving that she meets the test for an NEB.
11The applicant also relies on the s. 44 report of Dr. Monique El-Hage, dated April 26, 2021. Dr. El-Hage indicated that the applicant’s depression supported a limitation with respect to her engagement in social and recreational activities. However, Dr. El-Hage ultimately found that the applicant did not suffer a complete inability to carry on a normal life, as her engagement in her employment and most household and personal care activities were not impacted significantly by her psychological functioning. Without a compelling opinion to the contrary, or any submissions regarding whether Dr. El-Hage’s conclusion in this regard should be discounted, I find her opinion to be persuasive.
12The applicant relies on an activities of daily living checklist (“ADL checklist”) which she completed on January 29, 2021, where she reported a number of difficulties with her daily activities due to her pain. Most of the difficulties related to her housekeeping tasks or self care activities were indicated to be partial (e.g. difficulty cleaning heavy pots, needing help emptying the washing machine, taking short showers, hard time with putting on socks and pants). In my view, these partial difficulties do not amount to a continuous prevention from engaging in substantially all of the applicant’s pre-accident activities. Further, while she reported that she was unable to engage in her social and leisure activities, she does not mention her employment activities. I find that the ADL checklist corroborates the findings of Dr. El-Hage and does not assist the applicant in proving that she meets the test for an NEB.
13The evidence before me is that prior to the accident, the applicant was not employed. She began working as a part-time salesperson in fashion shortly after the accident, working two days per week, six hours per day. I acknowledge that the Court of Appeal in Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508, determined that an individual who is able to work may nonetheless suffer a complete inability to carry on a normal life, although the Court acknowledged that this is unlikely. However, in this instance, there is no compelling evidence before me as to the nature of the applicant’s work, whether she was unable to engage in any of her work activities, the importance of this job to her life, or the degree of pain experienced while working. One of the doctors at the applicant’s family physician’s clinic, Dr. Iman Nesseem, recommended a leave of absence from work on October 14, 2021, and his note indicated that she had the option to have one month off. However, there is no evidence before me as to when she returned to work, and none of the physicians at Dr. Nesseem’s clinic mentioned her ability to work before or after that date. Due to the lack of information before me, I am not convinced that this would be the type of rare scenario as contemplated by the Court in Galdamez where the applicant’s ability to work did not impact her claim that she sustained a complete inability to carry on a normal life.
14There is also compelling evidence before me that the applicant’s impairments were not continuous. Heath explains that “continuously prevented” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is an remains uninterrupted”. In the applicant’s ADL checklist, she indicated that a number of activities were dependent on whether she was experiencing pain, although she did not explain how often the pain occurred or at what level the pain limited her activities. According to a number of entries in the records of her family physician’s office, she experienced flare-ups of pain, which does not indicate to me that her pain, or any limitation as a result of the pain, was continuous. In her report of September 15, 2021, Ms. Aghamohseni indicated that as a result of psychotherapeutic intervention, the applicant was able to sleep better and had fewer days when her pain was intolerable and unmanageable. She also had techniques in place to help manage her depression. Dr. Nesseem only recommended time off work one time in October 2021, almost a year after the accident. Further, on January 3, 2022, there is a note from the office of the applicant’s family physician which states: “able to pursue activities of daily living without difficulty in general”. All of this evidence indicates to me that the applicant’s pain and psychological difficulties were not continuously impacting her ability to complete her pre-accident activities.
15I note that the applicant relies on a number of Tribunal decisions where an insured was found to be entitled to a NEB (16-003772 v. Gore Mutual Insurance Company, 2017 CanLII 69448, 16-003195 v. State Farm Insurance Company, 2017 CanLII 99136, 17-001627 v. Certas Direct Insurance Company, 2017 CanLII 99139, and 18-001560 v. Allstate Insurance, 2019 CanLII 22201). Not only am I not bound by those cases, but this analysis is highly fact-specific, and the fact scenarios in the cases relied upon by the applicant are not analogous to her situation. I am accordingly not persuaded by them.
16While I accept that the applicant may have had challenges with certain activities, I find that, on a balance of probabilities, the applicant has not met her burden in proving that she was continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident. As such, I find that she did not suffer from a complete inability to carry on a normal life, and she is not entitled to an NEB.
17I find that the applicant is not entitled to the treatment plans for facility-based treatment or orthotics.
18To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
19Although the treatment plans were described as proposing “physiotherapy services” in the Case Conference Report and Order of November 2, 2023, they include other forms of treatment, and can be summarized as follows:
i. $3,157.39 proposed by Alma Rehab in a treatment plan dated July 5, 2021, comprised of 18 sessions of chiropractic treatment, physiotherapy, and exercise, and 9 sessions massage therapy, as well as $56.40 for unidentified “exercise equipment”. The treatment goals were pain reduction, increased range of motion, increase in strength, and a return to activities of normal living, pre-accident work activities, and modified work activities.
ii. $2,825.37 proposed by Alma Rehab in a treatment plan dated September 20, 2021, comprised of 16 sessions of chiropractic treatment, physiotherapy, and exercise, and 8 sessions of massage therapy, as well as $56.40 for unidentified “exercise equipment”. The treatment goals were the same as the treatment plan above.
iii. $2,493.35 proposed by Alma Rehab in a treatment plan dated January 5, 2022, comprised of 14 sessions of chiropractic treatment, physiotherapy, and exercise, and 7 sessions of massage therapy, as well as $56.40 for unidentified “exercise equipment”. The treatment goals were the same as the treatment plan above.
iv. $2,288.31 proposed by Health Pro Wellness in a treatment plan dated May 20, 2021, comprised of orthotic devices, an assessment, documentation, and education. The treatment goals were pain reduction, restoring the applicant’s foot function and biomechanical balance of her lower body, and a return to activities of normal living.
v. $1,488.43 proposed by Health Pro Wellness in a treatment plan dated June 8, 2021, comprised of 14 sessions of chiropractic manipulation and exercise, and 7 sessions of therapy with a chiropractor and massage therapy. The treatment goals were increased range of motion, increase in strength, and return to activities of normal living.
20The applicant received treatment at Pro Health Wellness from October 2020 to June 2021, and subsequently at Alma Rehab from July 2021 to February 2022. The applicant submits that the treatment she received provided her with short-term pain relief and increased her ability to participate in activities of daily living.
21The applicant is correct that pain relief is itself a legitimate goal for treatment. However, there is a lack of compelling evidence before me as to the level of pain relief that she was receiving from physical treatment such that the cost of additional treatment would be reasonable and necessary. The records from the office of the applicant’s family physician do not indicate the level of pain relief that she experienced from therapy. Similarly, the records from Pro Health Wellness and Alma Rehab do not indicate how much each treatment session was helping the applicant, or for how long any benefit lasted.
22The applicant notes that Dr. Nesseem referred her for physiotherapy for neck and back pain on July 27, 2021. I have reviewed Dr. Nesseem’s record from that date and while he indicated that the applicant requested that he sign a form to receive treatment for her injuries, the form he completed is not before me, and I am therefore in the dark as to what he recommended.
23There is a lack of compelling evidence before me relating the proposed orthotics to an injury sustained in the accident. Orthotics were recommended by Dr. Maheen Diwan, sports medicine physician, on February 26, 2021, but he stated that this was due to high arches. There is no further discussion in his notes as to whether the orthotics were recommended as a result of the accident or why that would have been the case.
24Dr. Alborz Oshidari, s. 44 physiatrist, assessed the applicant on March 16, 2021, and noted that the applicant had a poor response to the treatments she had received and that no further physical intervention was recommended. Dr. Oshidari also opined in a paper review report dated July 30, 2021, that he did not notice any structural or physiological abnormality in her lower extremity that would require orthotics. He also reiterated his position that further facility-based physical therapy would not bring about any significant symptomatic, physical or functional improvement. The applicant has not made any submissions disputing Dr. Oshidari’s findings, has not provided me with a compelling contrary opinion that further physical therapy or orthotics are warranted. In the absence of this information, I accept Dr. Oshidari’s opinions with respect to treatment and orthotics.
25Further, there is no explanation as to why $56.40 was recommended for unidentified “exercise equipment” in three treatment plans, or what type of equipment was being recommended. Without an explanation as to what this item is and what its benefit would be, I find that the applicant has not discharged her onus in proving that it is reasonable and necessary.
26For the reasons above, I find that the applicant has not proven on a balance of probabilities that the abovementioned treatment plans are reasonable and necessary.
Chronic Pain Assessment
27I find that the applicant is entitled to a chronic pain assessment.
28The treatment plan proposed an assessment by Dr. Tajedin Getahun, orthopaedic surgeon. The goals of the treatment plan were to determine the exact nature of the applicant’s syndrome and to arrange an appropriate pain management program to assist in her recovery.
29Despite the respondent’s submission that the applicant was not diagnosed with chronic pain by any specialist, she was in fact diagnosed with “non-specific chronic pain from head to toe, more pronounced on the right side” by Dr. Oshidari. Although a diagnosis of chronic pain is not required for a chronic pain assessment to be reasonable and necessary, I find this evidence persuasive that a further investigation into the nature of the applicant’s pain and possible treatment options is warranted.
30I do not agree with the respondent’s assertion that all aspects of the applicant’s condition were pre-existing and not worsened by the accident. While the applicant was diagnosed with fibromyalgia in the past, she advised Dr. Diwan that her pain was intermittent before and worsened after the accident. Further, it was only after the accident that she was prescribed and began taking Lyrica for her pain. I find this evidence compelling that the applicant’s pain was worsened by the accident and was not strictly a result of a pre-existing condition.
31As indicated above, the records from the office of the applicant’s family physician, Dr. Peter Stevanovski, show that she experienced flare-ups of pain after the accident. The treatment plan, dated March 1, 2023, is contemporaneous with a record from Dr. Stevanovski on March 5, 2023, where the applicant reported another episode of low back pain. Dr. Stevanovski indicated that the applicant had a history of a motor vehicle collision. No other explanation was provided for her pain, and I accordingly do not accept the respondent’s suggestion that this complaint was not accident-related. I find that, around the time the treatment plan was submitted, it was reasonable for the applicant to explore how to manage her flare-ups of pain.
32I accordingly find that the applicant has proven, on a balance of probabilities, that the proposed chronic pain assessment is reasonable and necessary.
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest is applicable on the cost of the chronic pain assessment.
ORDER
34The applicant is entitled to $2,200.00 for a chronic pain assessment proposed in a treatment plan dated March 1, 2023, plus any applicable interest pursuant to s. 51.
35The applicant is not entitled to a non-earner benefit.
36The applicant is not entitled to any of the remaining treatment plans in dispute.
Released: January 29, 2025
__________________________
Rachel Levitsky
Adjudicator