Licence Appeal Tribunal File Number: 22-012405/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:
Koos Duali
Applicant
and
Travelers Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Ryan Naimark, Counsel
For the Respondent:
Jason Hepburn, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Koos Duali (the "applicant") was involved in an automobile accident on July 20, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule— Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by Travellers Insurance Company of Canada (the "respondent") and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2For context, the parties agree the applicant sustained a catastrophic impairment in her activities of daily living that is owing to a mental or behavioural disorder (i.e., Criterion 8) as a result of the accident.
PROCEDURAL CONTEXT
3The case conference report and order ("CCRO") for this matter identifies 27 issues in dispute. The applicant's submissions indicate that since the case conference, and prior to the written hearing, the parties were able to resolve issues 1 and 20 as listed in the CCRO. The applicant further indicated that she was withdrawing issues 2 to 8, 17, and 21 to 23 as listed in the CCRO. As such, the remaining issues in dispute as listed in the CCRO, and as I have included below, are issues 9 to 16, 18 to 19, and 24 to 27.
4In addition, the CCRO added a preliminary issue that sought to prevent multiple substantive issues (i.e., issues 1 to 8 as listed in the CCRO) from proceeding to the written hearing because the respondent claimed the applicant had failed to dispute the denial of these accident benefits within the two-year limitation period. Given that the respondent has not addressed the preliminary issue in its submissions, and that the applicant has indicated issues 1 to 8 were either resolved or withdrawn, I have not addressed the preliminary issue in these proceedings.
ISSUES
5The issues in dispute are:
i. Is the applicant entitled to the following goods and services proposed by Remik Zakrzewshi (occupational therapist) as follows:
(a) Various assistive devices in the amount of $11,363.66, proposed in a treatment plan ("OCF-18") submitted on February 1, 2021;
(b) Case management in the amount of $3,360.00 ($9,020.00 less $5,660.00 approved), proposed in an OCF-18 submitted on June 10, 2021; and
(c) Case management in the amount of $7,480.00, proposed in an OCF-18 submitted on July 13, 2021?
ii. Is the applicant entitled to the following MRI assessments proposed by Dr. Amir Owliaei (chiropractor) as follows:
(a) $2,000.00 in an OCF-18 submitted on June 9, 2021; and
(b) $3,700.00 in an OCF-18 submitted on May 2, 2021?
iii. Is the applicant entitled to chiropractic services in the amount of $1,301.70 ($5,816.00 less $4,514.30 approved), proposed by Dr. Wisam Nazy (chiropractor) in an OCF-18 submitted on November 16, 2020?
iv. Is the applicant entitled to physiotherapy and massage services in the amount of $226.00 ($3,981.29 less $3,755.29 approved), proposed by Nishaben Patel (physiotherapist) in an OCF-18 submitted on February 16, 2021?
v. Is the applicant entitled to single-photon emission computed tomography ("SPECT scan") in the amount of $2,000.00, proposed by Elmira Mammadova (social worker) in an OCF-18 submitted on May 2, 2021?
vi. Is the applicant entitled to a sleep assessment in the amount of $2,200.00, proposed by Dr. Leon Steiner (psychologist) in an OCF-18 submitted on April 21, 2021?
vii. Is the applicant entitled to chiropractic services in the amount of $450.00 ($4,710.80 less $4,260.80 approved), proposed by Dr. Shruti Datta-Ummat (chiropractor) in an OCF-18 submitted on July 27, 2021?
viii. Is the applicant entitled to attendant care benefit expenses in the amount of $48,893.81, proposed on a claim form ("OCF-6") submitted December 1, 2021?
ix. Is the applicant entitled to attendant care benefits in the amount of $6,984.83 per month from December 10, 2020, to date and ongoing?
x. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant is not entitled to an ACB or expenses. None of the medical benefits are payable. Interest does not apply, and the respondent is not liable to pay an award.
PROCEDURAL ISSUES
The applicant seeks relief from the written hearing format ordered by the Tribunal
7The applicant's submissions reiterate her request for an oral hearing to argue her ACB entitlement. For context, the applicant requested an oral hearing at the case conference for this matter. The Tribunal's case conference report and order ("CCRO"), released July 14, 2023, ordered a written hearing after considering the submissions of both parties.
8Section 5.1 of the Statutory Powers Procedure Act ("SPPA") establishes that the Tribunal may hold a written hearing in a proceeding unless a party satisfies the Tribunal that there is good reason for not doing so. Rule 12 of the Licence Appeal Tribunal Rules ("Rules") permits hearings to be held in written format in accordance with the SPPA.
9The applicant's written hearing submissions make no arguments as to why the Tribunal should vary its written hearing order or provide reasons for not proceeding in writing.
10The respondent argues that the applicant failed to file a motion to change the ordered hearing format. The respondent therefore reasons that the hearing format issue raised in the applicant's written submissions is improperly before the Tribunal and should be disregarded.
11While the orders made in the CCRO are subject to the discretion of the hearing adjudicator, I am persuaded to maintain the written format of this hearing for all disputed issues, including the ACB and attendant care expenses. I rely on the duty of fairness principle established in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 SCC, 1999 2 SCR 817 ("Baker"), which provides that parties to a dispute must have a "meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered." The hearing format was debated by the parties at the case conference on June 23, 2023. Both parties were afforded and made submissions at that time. The Tribunal ordered a written hearing, and the applicant has since filed written submissions and produced evidence that pertain to an ACB and attendant care expenses. Those submissions do not address how proceeding in writing has deprived her of a "meaningful opportunity" to have her evidence fairly and fully considered; the applicant does not make arguments that satisfy me a "good reason" exists for not proceeding in writing as ordered by the Tribunal.
12Given that the applicant failed to support her request to proceed orally on the ACB and attendant care expenses issues—and has filed written submissions and evidence on these issues—I am satisfied that the written proceedings ordered by the Tribunal provide a meaningful opportunity for the applicant to present her case and have her evidence fully and fairly considered.
The applicant re-files her hearing brief after the Tribunal-ordered deadline
13I find this proceeding should rely on the applicant's original hearing brief as filed with the Tribunal in February 2024.
14The CCRO for this matter indicates the applicant's submissions, inclusive of evidence and authorities, were due 30 calendar days before the hearing. The Notice of Written Hearing issued to the parties on July 20, 2023, scheduled the written hearing for March 28, 2024. The applicant filed two written submissions on February 27, 2024, which I accept were within the ordered deadline. The applicant explained at the time of filing, that she relied on the second of the two submissions because the footnotes were corrected to reference the correct tabs in the hearing brief. The following day, the applicant filed her hearing brief, which consisted of 18 separate emails that encompassed some 71 tabs and amounted to what the applicant estimated as more than 10,000 pages of evidence.
15On March 20, 2024—eight days prior to the scheduled hearing date and after the respondent had filed its submissions in accordance with the CCRO—the applicant late-filed six PDFs that constituted a re-filed hearing brief. In doing so, the applicant explained: "I have sent the Applicant's hearing brief both bookmarked and numbered to the tribunal and counsel. I have removed the Accident Benefits file from the brief sent to the LAT (page 477-4935). Please note this is the same brief as submitted on February 27, 2024. Please confirm receipt." The applicant did not file a motion to request that the Tribunal accept her revised hearing brief after the deadline.
16I find it would be procedurally fair to the parties to rely on the applicant's original hearing brief (i.e., the one filed in February 2024). The parties were afforded plenty of time (i.e., eight months' notice) to prepare their respective submissions and hearing briefs. The applicant had earlier re-filed her submissions to correctly reference the tabs in her original hearing brief of February 2024. While the applicant was able to re-file her corrected written submissions before deadline, she did not address changes to her hearing brief in a timely manner, nor did she avail herself of proper procedure by filing a motion to seek relief for re-filing her hearing brief, which occurred well after her submissions' deadline and the filing of the respondent's submissions.
17Taking all this into consideration, I find the applicant may rely on her original hearing brief to ensure that the evidence before the Tribunal comes from the same brief that was relied upon by both parties at the time of their submissions, and that aligns with the applicant's revised submissions.
ANALYSIS
The applicant's case is significantly hampered by discrepancies between her written submissions and hearing brief
18I did not review the bulk of the applicant's evidence because the coordinates she provided in her written submissions cannot be reconciled with her hearing brief.
19For context, the CCRO for this matter orders the parties to file written submissions, document (a.k.a. hearing or evidence) briefs, and authority books that, among other things, are indexed, tabbed, and consecutively page numbered. The parties were also ordered to ensure their written submissions make specific reference to evidence and law by page number. The CCRO further indicated that the hearing adjudicator may choose not to review evidence not so referenced.
20While the applicant's written submissions cite tab and page numbers for evidence, she relies on to support her arguments, albeit inconsistently as noted throughout this decision, her hearing brief index does not provide page numbers for the tabs, nor are the tabs referenced in the applicant's submissions consecutively page numbered. This made it exceedingly difficult to locate evidence. For what it's worth, cross-referencing the applicant's submissions to the index of her re-filed hearing brief and using the PDF page number fields did not produce better results because the main hinderance pertains to tabs that are missing altogether from both of the applicant's hearing briefs and Tab 16(A) in particular.
21For example, pertaining to evidence of the applicant's physical injuries, treatments, and impairments at "Part II—Facts" of her submissions, I placed little weight on the diagnosis of myofascial pain resulting from soft tissue injuries by Dr. Gwardijan (physiatrist) in January 2014. This is because the applicant's submissions indicate this evidence is at page 316 of Tab 16(A)—identified as North Hamilton Community Health Centre records—which was not filed as part of the applicant's hearing brief. Similarly, I was unable to locate the diagnostic imaging (i.e., MRI) of the applicant's shoulders in April and November 2014, which reportedly shows a left-sided partial tear of her supraspinatus (i.e., "rotator cuff") and rim tear of her right rotator cuff. The applicant's submissions pinpoint this MRI evidence at pages 84 and 87 of Tab 16(A), which, again, is not included as part of the hearing brief.
22I encountered the same issue with evidence concerning the applicant's October 2015, November 2015, January 2016, and April 2016 appointments with Dr. Chmiel (orthopaedic surgeon); the June 2015 EMG report; the May 2016 MRI report of the applicant's right knee; the January 2019 consultation with Dr. Dessouki and follow-up in May 2021; the August 2022, October 2022, and May 2023 visits with Dr. Shaban; the bilateral shoulder ultrasound obtained in August 2022; the ER visit for left shoulder pain in August 2022; the February 2023 case management note; the MRI scheduling confirmations for February and April 2023; the February 2023 MRI report of the applicant's cervical spine; declined neurosurgeon referrals from Drs. Kachur and Algrid; the left shoulder MRI completed in May 2023; the neurology consultations with Dr. Morillo; and the May 2010 lumbar spine x-ray.
23I would point out here too, that the applicant's reply submissions were also significantly hindered by pinpointing evidence in Tab 16(A) that was not included in the hearing brief.
24I therefore did not review any of this evidence because it was not included in the applicant's hearing brief. Similar issues arose while considering the applicant's submissions specific to each of the disputed issues, and I have addressed those separately below.
Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month?
25No. The applicant has not established she is entitled to an ACB.
26Section 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 ACB application must be in the form of, and contain the information required to be provided in, an Assessment of Attendant Care Needs ("Form 1").
27For context, the applicant's assessor, Mr. Remik Zakrzewski (occupational therapist) completed an assessment of attendant care needs ("Form 1") on December 10, 2020, and assessed a total monthly ACB of $6,984.83. Mr. Zakrzewski prepared an accompanying report, also dated December 10, 2020, to explain his Form 1 recommendations. The respondent's assessor, Mr. Nicholas Livadas (occupational therapist) completed a Form 1 on November 2, 2021, and assessed a total monthly ACB of $969.65. Mr. Livadas prepared an accompanying report to explain his Form 1 recommendations, dated November 11, 2021.
28Mr. Zakrzewski and Mr. Livadas agree on the applicant's need for coordination of care. While they also agree the applicant requires basic supervisory care seven days per week, Mr. Zakrzewski recommends the applicant receive double the amount of time recommended by Mr. Livadas. None of the other recommendations made by Mr. Zakrzewski are shared by Mr. Livadas. The chart below contrasts these two assessments:
| Mr. Zakrzewski | Mr. Livadas | |||||
|---|---|---|---|---|---|---|
| Number of minutes | Times per week | Total weekly minutes | Number of minutes | Times per week | Total weekly minutes | |
| Dress (lower and upper body) | 10 | 7 | 70 | 0 | 0 | 0 |
| Undress (lower and upper body) | 10 | 7 | 70 | 0 | 0 | 0 |
| Grooming (shaving) | 10 | 1 | 10 | 0 | 0 | 0 |
| Grooming (hair shampooing) | 30 | 3 | 90 | 0 | 0 | 0 |
| Grooming (hair styling) | 10 | 7 | 70 | 0 | 0 | 0 |
| Grooming (toenails) | 10 | 1 | 10 | 0 | 0 | 0 |
| Feeding (preparing, serving, and feeding) | 60 | 7 | 420 | 0 | 0 | 0 |
| Mobility (assist from sitting) | 1 | 70 | 70 | 0 | 0 | 0 |
| Mobility (walking assist) | 5 | 70 | 350 | 0 | 0 | 0 |
| Mobility (transfer tasks) | 3 | 70 | 210 | 0 | 0 | 0 |
| Extra laundering (incontinence) | 30 | 1 | 30 | 0 | 0 | 0 |
| Hygiene (bathroom) | 20 | 7 | 140 | 0 | 0 | 0 |
| Hygiene (bedroom cleaning) | 20 | 7 | 140 | 0 | 0 | 0 |
| Hygiene (bedroom safety) | 240 | 7 | 1,680 | 0 | 0 | 0 |
| Hygiene (clothing preparation) | 10 | 7 | 70 | 0 | 0 | 0 |
| Hygiene (clothing sorting) | 10 | 7 | 70 | 0 | 0 | 0 |
| Basic supervisory care | 360 | 7 | 2,520 | 180 | 7 | 1,260 |
| Coordination of care | 60 | 1 | 60 | 60 | 1 | 60 |
| Exercise | 30 | 7 | 210 | 0 | 0 | 0 |
| Skin care | 5 | 7 | 35 | 0 | 0 | 0 |
| Medication | 10 | 7 | 70 | 0 | 0 | 0 |
| Bathing (transfers) | 5 | 7 | 35 | 0 | 0 | 0 |
| Bathing (washing) | 10 | 7 | 70 | 0 | 0 | 0 |
| Bathing (applies lotions) | 5 | 7 | 35 | 0 | 0 | 0 |
| Maintenance of supplies | 10 | 7 | 70 | 0 | 0 | 0 |
29The applicant submits Mr. Zakrzewski assessed accident-related limitations that disable the applicant from completing certain pre-accident personal care activities. The applicant emphasizes that she has not been paid any invoice for incurred attendant care despite the respondent accepting her as catastrophically impaired with marked impairment of her activities of daily living (owing to a mental or behavioural disorder) as a result of the accident. The applicant relies on 17-001681 v Motor Vehicle Accident Claims Fund, 2018 CanLII 112134 (the "authority") to show the Form 1 completed by Mr. Livadas is unreasonable because his opinion conflicts with "all the medical documentation on file, including the insurer's own assessments."
30The respondent submits that the applicant's Form 1 did not benefit from a thorough assessment and is not reasonable and necessary because it exceeds her needs. The respondent says the applicant failed to adequately participate in the section 44 Insurer's Examinations ("IE") for catastrophic impairment determination conducted by Dr. Seyed Hossein Hosseini (physiatrist) and Vinita Tandon (occupational therapist) in July 2020. The respondent also asserts the applicant made inconsistent efforts to participate in subsequent ACB IE'S conducted in October and November 2021 by Mr. Livadas. The respondent maintains that in November 2021, it agreed to pay for all incurred attendant care expenses up to $969.65 monthly as of December 10, 2021, and as indicated in the Form 1 completed by Mr. Livadas in November 2021.
31In my view, the bearing of the applicant's psychological functioning on her attendant care needs is an important consideration because she emphasizes a relationship between the catastrophic impairment of her activities of daily living under Criterion 8 and her entitlement to an ACB. The applicant asserts she has not been paid incurred attendant care despite her catastrophic impairment determination by Dr. Anil Joseph (psychiatrist) in September 2020, whose report offers diagnoses of somatic symptom disorder with predominant pain and persistent depressive disorder. But while the applicant's ACB submissions refer to several psychological impairments (i.e., cognitive issues relating to poor memory, worrying thoughts, and depressed mood) that she says are documented in Mr. Zakrzewski's attendant care report, I find the bulk of the evidence the applicant relies on to support her ACB entitlement relates to her physical injuries and impairments.
32For example, the applicant argues that Mr. Zakrzewski's report documents restricted use of both arms due to bilateral shoulder pain and mobility limitations as well as arm pain and weakness. The applicant's submissions go on to detail other physical impairments considered by Mr. Zakrzewski, including range of motion deficits in her cervical and thoracic spine and hips, limited standing and walking tolerances, and difficulties with bending, lifting, carrying, pushing, pulling, reaching overhead, kneeling and squatting, gripping, and balance. While the applicant submits that Dr. Joseph attributed many of these physical impairments to her somatic symptom disorder with predominant pain, I find the applicant failed to substantiate this with evidence or demonstrate that any of Mr. Zakrzewski's Form 1 recommendations relied on Dr. Joseph's medical opinion. The applicant points to Tab 32A as supporting evidence for Dr. Joseph's diagnoses but fails to specify page numbers in the 130 pages of material that comprise Tab 32(A). I therefore was unable to consider this evidence because I could not efficiently locate the aspects of Dr. Joseph's report on which the applicant relies.
33I did not afford much weight to Mr. Zakrzewski's attendant care assessment report for similar reasons. In my view, it is procedurally improper to expect the Tribunal to search page-by-page for the evidence the parties rely on to make their case. As well, the applicant cannot expect the Tribunal, as a matter of procedural fairness, to undertake its own analysis of the evidence (i.e., tying together Mr. Zakrzewski's attendant care recommendations to functional testing and impairment observations as well as the medical records of other practitioners) to make the case on the applicant's behalf.
34The applicant's submissions fail to pinpoint evidence (i.e., make specific reference to evidence by tab and page number) in this 14-page document as required by the CCRO for this matter. Further, the applicant's submissions do not provide arguments that show how Mr. Zakrzewski's attendant care assessment report informs the more than two-dozen attendant care recommendations that appear on the Form 1. The applicant's submissions simply reiterate the recommendations made on the Form 1 and provide uncited descriptions of the applicant's injuries and impairments as documented by Mr. Zakrzewski. While Mr. Zakrzewski reportedly relates that the applicant relies on family to manage her medication, assist with stair use and transfers, operate kitchen appliances, and provide a sense of safety and security in her home, the applicant's submissions do not pinpoint this evidence in his report.
35The balance of the applicant's ACB submissions are dedicated to showing why Mr. Livadas' recommendations merit less weight, which is not helpful considering the applicant's own evidence falls short of her onus. In any event, the applicant did not pinpoint evidence in Mr. Livadas' report for consideration, and submissions are not evidence.
36While the applicant also failed to pinpoint evidence in Dr. Shaban's May 2023 letter, it was not a sizeable document, and I was able to locate where Dr. Shaban recommended the applicant not perform repetitive motions or lifting with her left shoulder in May 2023. However, this does not do much to support the applicant's ACB claim because the applicant does not show, in Mr. Zakrzewski's report, how Dr. Shaban's medical opinion supports any particular attendant care service recommended in the Form 1. Rather, the applicant presents this evidence to diminish the credibility of Mr. Livadas' opinion that the applicant has the physical, cognitive, and functional capability to perform dressing and undressing of the upper body, which does not assist in proving that this aspect of attendant care is reasonable and necessary.
37The applicant's submissions pertaining to a referral acceptance with Dr. Alexander Rabinovich (orthopaedic surgeon) did not support the applicant's ACB claim. This is because that document is not a referral to Dr. Rabinovich. It indicates that the referral was made to Dr. Colby Oitment to expedite the applicant's consult. More importantly, the referral confirmation does not mention a "left shoulder chronic rotator cuff tear." In fact, no reason for the referral is documented.
38Given that the applicant's evidence fails to demonstrate entitlement to an ACB, I find it unnecessary to consider the respondent's arguments and evidence in my analysis.
Is the applicant entitled to incurred attendant care expenses?
39No. The applicant has not shown the expenses listed on the disputed OCF-6 are incurred. For context, the OCF-6 signed by the applicant on December 1, 2021, lists seven expenses that total $48,893.81, and breakdown as follows:
i. $6,984.83 for services provided between October 20, 2020, and November 18, 2020;
ii. $6,984.83 for services provided between November 19, 2020, and December 18, 2020;
iii. $6,984.83 for services provided between December 19, 2020, and January 17, 2021;
iv. $6,984.83 for services provided between January 18, 2021, and February 16, 2021;
v. $6,984.83 for services provided between February 17, 2021, and March 18, 2021;
vi. $6,984.83 for services provided between March 19, 2021, and April 17, 2021; and
vii. $6,984.83 for services provided between April 18, 2021, and May 17, 2021.
40Section 3(7)(e) of the Schedule provides that an expense is not incurred unless: (1) the insured person has received the goods or services to which the expense relates; (2) the insured person has paid, promised to pay, or is otherwise legally obligated to pay the expense; and (3) the person who provided the goods or services did so in the course of their employment or sustained an economic loss providing those goods or services. This is to be interpreted in concert with sections 3(8) and 42(5) of the Schedule. The former says the Tribunal may deem an expense incurred if it finds the expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit to which the expense relates. The latter says the insurer is not obligated to pay an expense incurred before a compliant assessment of attendant care needs is submitted to the insurer.
41The applicant submits she has proven her attendant care expenses were incurred. She says she produced invoices that outline the services she received, and the time spent providing those services. The applicant also maintains that in addition to undergoing an examination under oath in June 2023, she provided all the other documentation requested by the respondent, such as service logs, the credentials of service providers, and a statutory declaration. The applicant requests that, should the Tribunal find her attendant care expenses were not incurred, that it deems them incurred under section 3(8) of the Schedule because it was unreasonable for the respondent to withhold payment in light of all the supporting information provided by the applicant.
42The respondent relies on section 42(5) of the Schedule to argue it is not obligated to pay for any of the disputed expenses prior to January 19, 2021, when the applicant submitted her Form 1. The respondent also submits the applicant has failed to prove she incurred attendant care expenses because the daily time logs: (1) provide inconsistent start and end time details of weekly services; (2) fail to identify what service was provided on each day of the week and how much time was spent providing each service; and (3) do not coincide with the explanation of services provided to the applicant's case manager by the service provider. The respondent also maintains that the applicant has not produced evidence of services in her hearing brief that is consistent with the daily time logs. The respondent says the applicant has failed to show she received attendant care services that relate to her claimed expenses and relies on two authorities: (1) R.O. v. Aviva Insurance Company of Canada, 2019 CanLII 94029 ON LAT ("R.O.") to show that proving receipt of services requires documentation that specify what services were provided on what dates and how long the services were provided on those dates; and (2) Pucci v. Wawanesa Mutual Insurance Company, 2020 ONCA 265 ("Pucci") to show the criteria the applicant must prove to persuade the Tribunal to deem her expenses incurred under section 3(8) of the Schedule.
43I do not accept the respondent's position that expenses listed on the OCF-6 prior to January 19, 2021, are not payable pursuant to section 42(5) of the Schedule. This is because the respondent's submissions do not point to evidence that establishes January 19, 2021, as the date the Form 1 was submitted. In fact, the Form 1 in evidence indicates that Kelly Green (adjuster) denied the claim on January 1, 2021. That said, I find the Form 1 could not have been submitted prior to it being completed by Mr. Zakrzewski on December 10, 2020, and I accept this as the date of submission. As such, section 42(5) applies accordingly, and the respondent is not liable to pay expenses on the OCF-6 dated prior to December 10, 2020.
44The applicant has not demonstrated that she incurred the balance of the OCF-6 (i.e., expenses from December 10, 2020, and onwards). While I accept the accompanying invoice from the service provider outlines the attendant care services listed in the Form 1 completed by Mr. Zakrzewski, I find this falls short of proving whether any of these services were provided. The entries made in the column for service description say "Mon-Sun" and thus provide little insight into which services she received on the corresponding service dates. The hours listed on the invoice are a function of weekly values that are not allocated to any specific attendant care service such that the billable hours can be cross-referenced to the Form 1. As such, the applicant has not shown which expenses relates to which services, and therefore cannot meet the first test required at section 3(7)(e) of the Schedule.
45While the applicant also relies on daily time logs, daily detailed log sheets and a variety of other documents from the service provider to support her expense claim, her submissions do not extend past saying that she provided this information to the respondent. Put differently, the applicant does not point to aspects of this evidence to support her claim and, in failing to do so, cannot meet her onus. I would point out here too, that the applicant's submissions do not point to evidence that establishes she paid, promised to pay, or is legally obligated to pay any portion of the expenses listed on the OCF-6.
46I placed little weight on the applicant's submissions that pertain to her statutory declaration and examination under oath. The applicant does not direct me to aspects of the statutory declaration she relies on to show she incurred the attendant care expenses listed in the OCF-6. While the applicant's submissions convey the testimony she provided during her examination under oath, she failed to point me to evidence that substantiates this testimony (i.e., the transcript of the proceedings). While the applicant's reply argues that it is essentially the respondent's obligation to produce this transcript as part of its hearing brief, I find the onus is rightly on the applicant should she wish to rely on this evidence.
47Given that the applicant's own evidence falls short of meeting her onus, I reject her argument that the respondent was unreasonable to withhold payment of the OCF-6 because it had all of the invoices and records created by the service provider, as well as the statutory declaration and applicant's EUO testimony. As such, I am persuaded against deeming her expenses incurred under section 3(8) of the Schedule. Further, the applicant's failure to show the OCF-6 expenses were incurred, or should be deemed incurred, makes it unnecessary to address the respondent's arguments or evidence in my analysis, beyond those pertaining to the applicability of section 42(5) of the Schedule.
Are the recommended assistive devices reasonable and necessary?
48No. The applicant's evidence falls short of persuading me that she is entitled to the assistive devices proposed in the OCF-18.
49For context, the applicant's submissions indicate the items on the OCF-18—which were recommended by Mr. Zakrzewski in his December 2020 assessment of attendant care needs report—total $11,363.66 and include a variety of devices to assist with personal care activities as well as a mattress with adjustable frame, a water-based cervical pillow, a lumbar support cushion, an electric heating pad, an electric personal massager, a Thera-band roll, adjustable dumbbells, an electric-lift sofa recliner, an adjustable height tray table, a lightweight upright vacuum, and a wet-jet mop. The applicant says only the body massager and electric heating pad were approved for a total of up to $510.00, leaving $10,853.66 worth of devices in dispute.
50To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment (or, in this case, the assistive devices), how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
51The applicant submits that Dr. Shaban's August 2023 letter indicates the mattress and pillow are necessary. Otherwise, the applicant indicates only that she relies on the reasons she identified in her ACB submissions to show Mr. Zakrzewski's assessment is more reasonable than that of Mr. Livadas.
52The respondent argues the applicant's level of mobility and physical functioning are sufficiently high that the disputed devices are not reasonable and necessary. The respondent relies on the November 2021 occupational therapy assessment by Mr. Livadas.
53The thrust of the applicant's position is that showing Mr. Zakrzewski produced a more reasonable assessment than Mr. Livadas necessarily demonstrates that the OCF-18 is reasonable and necessary. I disagree. The applicant did not point to the OCF-18 in her submissions to establish that the treatment goals—whatever they may be—pertain to the applicant's accident-related injuries or impairments. She also failed to direct me to evidence that persuades me the devices proposed in the OCF-18 can meet those goals to a reasonable degree. While I accept that Dr. Shaban recommended a supportive pillow and mattress, I disagree this evidence is sufficient to establish these items are reasonable and necessary because the applicant failed to tie these items to the treatment goal(s) of the OCF-18.
54Taken together on balance, I find the applicant's submissions and evidence do not meet her onus to establish this OCF-18 as reasonable and necessary.
Is the proposed sleep assessment reasonable and necessary?
55No. The applicant has not demonstrated entitlement to this OCF-18.
56To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable. In the context of an assessment, while the applicant does not need to prove the condition exists, they must prove with persuasive evidence that there is some accident-related condition to be investigated via the proposed assessment.
57The applicant submits that her sleep difficulties are well-documented in Dr. Shaban's records, and that the OCF-18 was reasonable and necessary at the time it was submitted.
58The respondent argues that the applicant's sleep concerns could be addressed by the social worker and psychotherapist she was being treated by at the time this OCF-18 was submitted. The respondent adds there was no documentation about sleep concerns from Dr. Shaban at that time, and that the applicant did not provide evidence from a treating professional that establishes a sleep study as reasonable and necessary. In reply, the applicant submits it is unreasonable for the respondent to expect her counselling sessions to be devoted to sleep improvements.
59The applicant has not met her onus. I make the same finding here as I did for her submissions on the OCF-18 for assistive devices, which is that the applicant failed to point to evidence of her treatment goals. This significantly hampers her claim. While the applicant says the sleep study was reasonable and necessary at the time it was submitted, she fails to point to contemporaneous complaints or medical opinions about sleep difficulties and this also diminishes the merit of her claim. The applicant's submissions reference sleep in Dr. Shaban's notes twice—both entries dated more than two years after the OCF-18 was submitted. I put no weight on the first entry (i.e., a May 2023 entry that says Dr. Shaban recommended a sleep aid and prescribed nortriptyline) because this does not appear in evidence. The second entry, made in August 2023, was of little assistance because Dr. Shaban does not recommend a sleep study. Rather, he recommends proper sleep posture.
60As such, I am persuaded on balance that this OCF-18 is not reasonable and necessary.
Are the proposed diagnostic imaging tests (i.e., MRIs) reasonable and necessary?
61No. The applicant has failed to persuade me of her entitlement to this OCF-18.
62For context, there are two OCF-18s for MRIs. The first is a total body scan and the second is to obtain imaging of the applicant's cervical and lumbar spine.
63To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment (in this case, the assessment or test), how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable. I repeat my earlier recital about the applicant's burden of proof in the context of assessments.
64The applicant submits these OCF-18s were reasonable and necessary at the time they were submitted. She says she established the need for urgent imaging of her left spine and cervical spine in the "Injuries and Treatment" section of her submissions. The applicant goes on to assert that the respondent's denial of these OCF-18s caused her to wait six months to obtain imaging of her left shoulder and more than seven months for her cervical spine. The applicant adds this contributed to a delay in her treatment.
65The respondent argues that the MRIs are not reasonable and necessary because the applicant did not produce evidence of radiculopathy. The respondent adds that the applicant is entitled to payment for MRIs under her Ontario Health Insurance Program ("OHIP") coverage.
66I find the applicant's claim is hindered because, similar to her submissions on the assistive devices and sleep study I have already addressed, she fails to point to aspects of the OCF-18s that are essential to proving a treatment plan is reasonable and necessary. I also reject the applicant's approach to making her case on this OCF-18, as it improperly puts the onus on the Tribunal to search through an omnibus section of her submissions to determine for itself what evidence is relevant and what evidence is not. In any event, all of the applicant's references to MRIs in her submissions are not supported by the evidence in her hearing brief as Tab 16(A) does not appear.
67Given that the applicant has not directed me to evidence that establishes the reasonableness and necessity of this OCF-18, I disagree she is entitled to the MRIs she claims.
Is the proposed SPECT scan reasonable and necessary?
68No. The applicant's submissions and evidence do not support entitlement to this OCF-18.
69For context, the applicant's submissions seemingly refer to an OCF-18 that is not in dispute. The applicant says the dispute involves a $2,000.00 electrophysiological measurement ("EP study") proposed by Amir Owliaei (chiropractor) that was submitted on June 9, 2021. However, the corresponding issue (no. 14 as listed in the CCRO) that was agreed to by the parties at the case conference speaks to single-photon emission computed tomography ("SPECT scan") in the amount of $2,000.00, proposed by Elmira Mammadova (social worker) and submitted on May 2, 2021.
70To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment (in this case, the assessment or test), how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable. I repeat my earlier recital about the applicant's burden of proof in the context of assessments.
71The applicant submits that her worsening symptoms substantiate the need for an updated EP study. She says Dr. Guha (neurosurgeon) recommended a nerve conduction study ("NCS") and electromyography ("EMG") in April 2023 to rule out a "peripheral entrapment neuropathy." The applicant maintains that she would have received more timely treatment if an updated EMG would have been approved by the respondent at the time the OCF-18 was submitted, such that it would have been available for Dr. Guha to review at his initial consultation.
72The respondent argues that the applicant provided no evidence of a traumatic brain injury that would make an EP study or SPECT scan reasonable and necessary. The respondent adds that the applicant underwent EP studies in 2014 and 2019, and that she provided no evidence that another EP measurement was recommended by Dr. Shaban or any other treating professional.
73In my view, the applicant is arguing an OCF-18 that is different from the one the parties identified at the case conference. Aside from the cost, the OCF-18s share no commonalities. According to the CCRO and applicant's submissions, they were proposed by different practitioners and submitted to the respondent on different dates. The applicant's submissions do not point to evidence that establishes a SPECT scan and an EP study are one and the same, nor that the OCF-18s described in her submission and the CCRO are the same. The applicant's submissions do not mention a SPECT scan; do not point to evidence of a medical recommendation to undergo an EP study; and do not direct me to the OCF-18 she describes in her submissions, nor the OCF-18 identified in the CCRO, to clarify her position.
74The unexplained discrepancies between the applicant's submissions and the CCRO—combined with her failure to show evidence that supports her arguments—are fatal to her case. I am therefore persuaded that the applicant has not met her onus to establish the reasonableness and necessity of the SPECT scan OCF-18 disputed at the time of the case conference. I also find she is not entitled to an EP study because she did not avail herself of the procedural avenues required to properly put this issue before the Tribunal.
Are the three OCF-18s that propose physical therapies (i.e., chiropractic services, physiotherapy, and massage therapy) reasonable and necessary?
75No. I disagree as to the applicant's entitlement to these OCF-18s because she has not met her onus to show they are reasonable and necessary.
76To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
77The applicant submits that the denied aspects of these three treatment plans consist of an orthotic device, a personal massager, and a brace. The applicant contends these items are reasonable and necessary because there are "numerous reports" of bilateral knee pain in her medical records. The applicant relies on a May 2016 MRI of her right knee and a referral to Dr. Dessouki (orthopedic surgeon) to support her entitlement.
78The respondent argues that the applicant produced no evidence to support the requests for orthotic devices or the brace, nor that she had problems with her gait. The respondent says a personal massager was already approved (per the earlier addressed OCF-18 for assistive devices in the amount of $11,363.66).
79The applicant has not met her onus here because she did not establish that the devices proposed in these OCF-18s will reasonably meet her treatment goals. This is because, like her submissions on the other OCF-18s in dispute, she does not point to the treatment goals set out in the OCF-18, and therefore cannot establish that the recommended devices are reasonable and necessary. While I was able to locate references to knee injuries in the applicant's omnibus submissions on her injuries and treatments, I placed little weight on them because she either did not point to evidence to substantiate those submissions or she relied on Tab 16(A), which does not appear in her hearing brief.
80Taken together on balance, I am persuaded that the applicant has failed to show she is entitled to this OCF-18 because the proposed devices are not reasonable and necessary.
Are the proposed case management services reasonable and necessary?
81No. The applicant has not demonstrated her entitlement to case management services.
82To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
83The applicant submits that the OCF-18 in the amount of $3,360.00 proposed case management services for a 12-week period, and that some aspects of this treatment plan were approved by the respondent. The applicant further submits that the OCF-18 in the amount of $7,480.00 was denied in its entirety. The applicant explains that services provided under the first OCF-18 did not last 12 weeks as anticipated because it was only partially approved. This prompted the second OCF-18 to be submitted earlier than expected, thereby causing the respondent to deny it in full on the incorrect basis that it duplicated services provided under the first OCF-18. The applicant contends that she provided progress reports and notes associated with the first OCF-18 to the respondent.
84The respondent argues that the denied aspects of the first OCF-18 were deemed duplicative and therefore are not reasonable and necessary. The respondent asserts that the second OCF-18 is not reasonable and necessary because it was submitted just two weeks after partially approving the first OCF-18 for 12 weeks' worth of services.
85To demonstrate her entitlement to the first OCF-18, the applicant needed to prove that its denied aspects are reasonable and necessary. However, I find she did not identify what aspects of the OCF-18 were deemed duplicative and excessive in her submissions and failed to point to these goods or services in evidence. Similarly, the applicant's submissions provide little insight into what the case management services proposed in the second OCF-18 consist of, or how they relate to her treatment goals, because she does not direct me to this evidence in her hearing brief either. I placed little weight on the 290 pages of clinical notes and records from Novo Medical Services because the applicant did not pinpoint the evidence she relied on in these records to show progress that supported the reasonableness and necessity of ether OCF-18.
86Given the insufficiency of the applicant's arguments and evidence, I am persuaded that the applicant has failed to demonstrate these OCF-18s are reasonable and necessary.
Interest
87Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no overdue payments in this matter, so interest does not apply here.
Award
88The respondent is not liable to pay an award in this matter.
89The 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.
90The applicant submits her ACB, and incurred expenses were unreasonably withheld. Her position on all the disputed OCF-18s is that they were all reasonable and necessary at the time they were submitted, so the respondent's denial of these medical benefits constitutes withheld payments that merit an award. In all cases, the applicant requests 50 per cent of the benefit value.
91The respondent argues there is no basis for an award because the applicant produced no evidence that shows it unreasonably withheld or delayed payments through its denial of the benefits. The respondent adds that the applicant failed to provide particulars of her claim.
92The applicant's submissions point to little evidence of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate conduct by the respondent. There are no benefits payable in this case. I am therefore persuaded that the applicant has not demonstrated her award claim has merit.
ORDER
93The applicant is not entitled to an ACB or expenses. None of the medical benefits are payable. Interest does not apply, and the respondent is not liable to pay an award. The application is dismissed.
Released: January 27, 2025
__________________________
Michael Beauchesne
Adjudicator