Licence Appeal Tribunal File Number: 22-013132/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:
Dionne Austin
Applicant
and
Jevco Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Naman Nanda, Counsel
For the Respondent:
Elizabeth Harding, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Dionne Austin (the “applicant”) was involved in an automobile accident on November 17, 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 Jevco Insurance Company (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. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from November 17, 2020, to November 17, 2022?
iii. Is the applicant entitled to the following services proposed by Prime Health Care Inc., as follows:
Physiotherapy in the amount of $1,779.34 as proposed in a treatment plan (“OCF-18”) submitted on October 25, 2021, and denied on October 26, 2021; and
Psychological services in the amount of $3,491.49 as proposed in an OCF-18 submitted on November 23, 2021, and denied on November 24, 2021?
iv. Is the applicant entitled to an attendant care assessment in the amount of $2,000.00, proposed by Dr. Chad Hefford in an OCF-18 submitted on July 22, 2021, and denied that same day?
v. Is the applicant entitled to a chronic pain assessment in the amount of $2,000.00, proposed by Dr. Grigory Karmy in an OCF-18 submitted on July 21, 2021, and denied that same day?
vi. Is the applicant entitled to a psychology assessment in the amount of $2,200.00, proposed by Dr. Jacqueline Brunshaw in an OCF-18 submitted on August 13, 2021, and denied that same day?
vii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG and is not entitled to the disputed OCF-18s. The applicant is not entitled to an NEB. Neither interest nor an award is payable.
PRELIMINARY ISSUES
Are certain aspects of the applicant’s claim precluded from consideration by the Tribunal because she failed to attend an Insurer’s Examination (“IE”) required by the respondent?
4I find the respondent has not shown the applicant failed to attend an IE on November 25, 2021, to address her NEB and claims for psychological assessment and services.
5Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal to dispute entitlement to a statutory accident benefit if the insurer has provided notice that it requires an examination under section 44, but the insured person has not complied with that section. This should be read in conjunction with section 55(2) of the Schedule, which says the Tribunal may permit an insured person’s application despite section 55(1)2. Section 44 of the Schedule, in turn, provides that an insurer may require an insured person to be examined by a regulated health professional in order to determine benefit entitlement under the Schedule, but no more than is reasonably necessary.
6Given the serious consequences to an insured person of refusing to attend an IE for which proper notice has been given (i.e., barred from making an application to the Tribunal), the notice requirements set out in section 44(5) of the Schedule should be strictly construed and the insurer’s notice should be closely examined to ensure it complies. The requirements are mandatory and exist to balance the naturally intrusive nature of an IE and ensure fairness. The insured person is entitled to make an informed decision about whether they wish to pursue their claims and attend the IE, or not. Thus, sufficiency of notice is always at play whenever an insurer relies on section 55(1)2 of the Schedule, and the respondent bears the onus to show its notice was sufficient and that the applicant failed to attend.
7The respondent submits it gave a section 44 IE notice to the applicant that pertained to her NEB claim, as well as the disputed OCF-18s for psychological services and assessment (i.e., the issues stipulated at paragraphs 2(ii), 2(iii)(ii), and 2(vi) above). The respondent contends the applicant failed to attend the IE as required on November 25, 2021, and did not challenge the convenience or reasonableness of the IE.
8The applicant argues that the preliminary issue raised by the respondent is not properly before the Tribunal because it was not raised at the case conference when all the other issues were confirmed. The applicant explains that the respondent’s argument comes as a surprise to her, and that dispensing her NEB and psychological benefit claims on the grounds argued by the respondent would thereby prejudice her case.
9I find the respondent provided several notices to the applicant one dated August 19, 2021, and three dated October 29, 2021. I disagree with the respondent’s position that these notices, when taken together, intended to require an IE with Dr. Robert Woods (psychologist) on November 25, 2021, for the applicant’s NEB and psychological treatment and assessment claims. The respondent’s submissions are inconsistent with its evidence, and the notices it produced are disjointed, in that they lack a coherent sequence or connection.
10The August 2021 IE notice schedules an in-person examination for September 11, 2021 with Dr. Amena Syed (psychologist). This notice pertains specifically to the disputed OCF-18 for psychological assessment and the applicability of the MIG. The reason provided for the IE is consistent with this purpose:
”A review of the documentation on file suggests that the injuries suffered as a result of the motor vehicle accident appear to be minor in nature. Due to the lack of evidence supporting a psychological impairment, we feel it is appropriate to have a medical professional determine whether the proposed treatment plan for psychological treatment is reasonable or necessary.”
11The respondent subsequently provided three “re-scheduling” notices in October 2021. I disagree with the respondent’s assertion that its covering letter for these notices makes it clear that the original examination which sought to address the disputed OCF-18 for psychological assessment and MIG applicability was being re-scheduled to November 25, 2021. The covering letter is silent on the type of examination and does not refer to the original appointment or the re-scheduled IE date. Only one of the three notices re-schedules an examination to November 25, 2021, and this is for Dr. Woods to assess the applicant’s NEB claim—there is no mention of addressing the disputed OCF-18 for psychological assessment or MIG applicability. The reason provided for this IE is consistent with an NEB examination:
“We currently do not have sufficient medical documentation on file to suggest you are unable to carry on a normal life due to your accident of November 17, 2020 related injuries. The Disability Certificate (OCF-3) states you currently suffer a complete inability to carry on a normal life, given that it has been 10 months since accident, and with no clinical notes and records on file at this (sic) we feel its appropriate to have independent medical assessments completed to determine if (sic) suffer a complete inability to carry on a normal life.”
12To add to the confusion, the second of the three October 2021 notices also ”re-schedules” an IE to address the applicant’s NEB claim. In my view, this is a misnomer because the respondent has not established an NEB was scheduled prior to its October 2021 notice. Further, this notice identifies Dr. Riaz Moolla (general practitioner) as the examiner and indicates the examination is to occur on November 18, 2021 one week before the NEB IE with Dr. Woods. The respondent did not direct me to a rationale that was provided to the applicant to explain why two IEs would be reasonably necessary to assess the applicant’s NEB claim. The reasons provided in both NEB IE notices are the same and make no distinction between the two examinations to show they are both reasonably necessary.
13The third notice provided by the respondent in October 2021 re-schedules the September 2021 IE to address the disputed OCF-18 for psychological assessment and MIG applicability. However, contrary to the respondent’s submissions, it was re-scheduled to November 18, 2021 with Dr. Moolla and not November 25, 2021 with Dr. Woods. While the respondent’s submissions refer to yet another IE notice this one dated November 24, 2021, to address the disputed OCF-18 for psychological services on one day’s notice as part of her NEB IE on November 25 with Dr. Woods I could not locate this evidence in the respondent’s brief. It is referenced in submissions at Tab H, where only duplicates of the two October 2021 NEB IE notices appear. I therefore gave little weight to the November 24 notice as referenced in the respondent’s submissions.
14Taken together on balance, I find this evidence does not support the respondent’s position. The respondent fell short of proving that the applicant failed to show for the assessment with Dr. Woods on November 25, 2021. This is because the respondent did not produce evidence of a notice that required the applicant’s attendance at an IE on November 25 to address the disputed OCF-18s for psychological assessment and services. While I accept a notice was produced to require an NEB examination on November 25, I find the notice did not comply with section 44(1) of the Schedule because the respondent failed to establish it was reasonably necessary in concert with a second NEB IE scheduled a week earlier. Further, the notice does not, in my view, comply with section 44(5)(a) of the Schedule because it offers little clarity on its reasons for re-scheduling an IE that apparently was never initially scheduled to begin with. I therefore decline to make the order requested by the respondent and allow the applicant’s claim to proceed in whole and be considered on the merits.
15Given that the respondent has failed to meet it onus, I find it unnecessary to address the applicant’s arguments on this preliminary issue.
PROCEDURAL ISSUES
The applicant files a motion to vary the Tribunal-ordered deadlines for written submissions and the respondent seeks dismissal of the applicant’s claim without a hearing
16I find the applicant’s claim may proceed and rely on her late-filed submissions.
17The applicant’s motion of March 22, 2024, requests an order to extend her written hearing submissions deadline. The applicant explains that she missed the March 13, 2024 deadline ordered by the Tribunal because of a technical issue that removed calendar events from her scheduling system. The applicant asks that the Tribunal accept her late filed submissions, which were filed with her motion, and consents to an extension for the respondent’s submissions up to April 9, 2024, to maintain continuity with the ordered timelines. The applicant consents to leave the hearing date as scheduled and commits to filing her reply by April 10, 2024, to ensure the hearing can proceed as scheduled on April 12, 2024.
18The respondent contends that the applicant, by failing to file her submissions by the Tribunal-ordered deadline, abandoned her application. The respondent also asserts the applicant has produced no evidence to substantiate her scheduling system had a technical issue that removed calendared events. The respondent does not consent to the applicant’s motion and asks that the Tribunal dismiss the application on the grounds of abandonment. Alternatively, the respondent asks the Tribunal to dismiss the applicant’s motion and remand the issues of abandonment and late-filed submissions admissibility to the hearing adjudicator.
19The respondent goes on to say it is prejudiced by the applicant’s late filing because it only has six days to meet its ordered submission deadline, which amounts to a 10-day deficit. The respondent adds that the applicant’s motion, if granted, would further prejudice the respondent because the revised timetable would not allow sufficient time (i.e., just one day between the applicant’s reply and the hearing date) for sur-reply and any subsequent motions. The respondent also maintains that the Tribunal “impacted the respondent’s ability to argue abandonment” as part of its written submissions by pre-emptively alerting the applicant to her missed submissions deadline.
20The parties agree that the applicant’s written submissions are late-filed, and I concur. However, I disagree that late-filed submissions constitute abandonment. In any event, Rule 3.5 of the Licence Appeal Tribunal Rules (the “Rules”) requires the Tribunal to provide notice before dismissing an application without a hearing, which, in this case, would serve no practical purpose considering the applicant has established that she remains engaged in her claim by filing her motion and submissions.
21Given that the hearing is now underway and both parties have made their submissions, I allow the applicant’s request for more time to file her written submissions. In terms of admissibility, I find the applicant’s submissions and evidence should be admitted to the hearing. When weighing procedural fairness and any potential prejudice brought, the scales tip in favour of the applicant in this case. While the applicant’s untimely submissions likely inconvenienced the respondent, I find the prejudice caused to the respondent is minimal, given that it was nevertheless able to file its submissions in compliance with the case conference report and order (“CCRO”) for this matter. The applicant, however, would be severely prejudiced and unable to pursue her case if her written submissions were excluded. As such, I order that the applicant’s submissions be admitted to the hearing and considered on their merits.
ANALYSIS
The applicability of the MIG
22The applicant remains in the MIG.
23Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “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.”
24The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
25For this matter, the applicant maintains the pre-existing condition provision applies. The applicant also claims she suffered an accident-related psychological impairment and chronic pain syndrome that resulted from the accident.
Does the pre-existing condition provision apply to this case?
26No. The applicant remains in the MIG when her pre-existing medical conditions are considered.
27The applicant submits her injuries cannot be treated within the MIG because she has extensive history of pre-existing conditions (i.e., chronic hypertension and left wrist pain) that would impact her recovery. The applicant relies on the clinical notes and records of the Family Care Medical Centre (“FCMC”) and the November 2021 report by Dr. Moolla. The applicant cites C.S. v. Unifund Insurance Company, 2016 CanLII 104570 ON LAT (“C.S.”) to show that well-documented pre-existing medical conditions in a family physician’s records satisfy the section 18(2) requirements for MIG removal.
28The respondent argues that hypertension is the applicant’s only pre-existing condition, which was resolved by surgery. The respondent also contends that the applicant has not explained how her pre-existing left wrist pain will prevent maximal recovery from accident-related pain in her lower back and neck.
29I agree the applicant has shown she was diagnosed with hypertension and wrist pain before the accident. While I placed little weight on Dr. Moolla’s evidence--his examination occurred post-accident and he did not offer a medical opinion on the applicant’s hypertension—I find Dr. Naheed Mirebrahimi (family physician) diagnosed hypertension in his FCMC entry dated January 14, 2019. The FCMC records also show that Dr. Steven Dawood (family physician) assessed wrist pain on June 3, 2019.
30The applicant’s submissions, however, do not point to evidence of Drs. Mirebrahimi, Dawood, Moolla, or any other health practitioner determining that hypertension or left wrist pain will prevent the applicant from achieving maximal recovery from her accident-related injuries if subjected to the MIG limits. The applicant does not direct me to a medical explanation of how her pre-existing medical conditions would affect the treatment of accident-related strain and strain injuries to her shoulders, lumbar spine, and left ankle. I do not find C.S. to be of much assistance because the health practitioner’s analysis of the insured’s pre-existing condition does not extend to contemplating whether that condition precludes recovery of accident-related injuries in the MIG.
31Given that the applicant has only partially satisfied the test set out at section 18(2) of the Schedule, I disagree that she should be removed from the MIG because of pre-existing medical conditions.
Did the applicant suffer an accident-related psychological impairment?
32No. I find the applicant has not demonstrated an accident-related psychological impairment.
33The applicant submits she suffered psychological impairments (i.e., persistent symptom disorder, adjustment disorder with anxiety, major depressive disorder, and specific phobia) arising from the accident. The applicant relies on the assessments prepared by Dr. Jacqueline Brunshaw (psychologist), the treatment records of Dr. Shelia Moeck from April 2022 to August 2023, the November 2021 report completed by Dr. Moolla, and the records of the Family Care Medical Centre from November 2020 to December 2022.
34The respondent argues that the applicant underwent treatment for mental health issues (i.e., receiving counselling for depression) from 2009 to 2013. The respondent adds that because the applicant failed to produce the clinical notes and records of her 2022-23 psychotherapy sessions, it is unclear whether the applicant pursued this counselling to continue treating her pre-existing depression or address accident-related concerns (i.e., driving-related anxiety). The respondent says Dr. Brunshaw did not provide test scores to substantiate her medical opinions on the severity of the applicant’s symptomology, and further offers that Dr. Brunshaw’s opinions are not supported by family physician records.
35I accept that Dr. Brunshaw’s report of September 9, 2021, offers diagnoses of adjustment disorder with anxiety, recurrent episodes of major depressive disorder, and a vehicular phobia. However, I did not place full weight on these diagnoses because the applicant failed to direct me to contemporaneous evidence of psychological symptomology that corroborates her consultation with Dr. Brunshaw.
36In my view, the applicant’s case is hindered by the lack of contemporaneous psychological evidence from the time of the accident to Dr. Brunshaw’s assessment performed some 10 months later in the context of litigation. The applicant did not establish she was referred to Dr. Brunshaw by her FCMC health team, and while the applicant’s submissions refer to complaints of psychological symptomology in the FCMC records, I find these entries merit diminished weight because they all occurred after her consultation with Dr. Brunshaw.
37For example, at paragraph 7 of the applicant’s submissions, a reference is made to the applicant’s complaints of driving anxiety to an FCMC physician on November 18, 2022. This is where Dr. Munir Nathoo (family physician) documents the applicant’s complaints of “a lot of anxiety” pertaining to driving and assesses a driving phobia. Dr. Nathoo also appears to recommend psychotherapy as a follow-up measure to address the applicant’s phobia. A month later on December 17, 2022, Dr. Nathoo diagnosis the applicant with anxiety and depression based on two tests he administered (i.e., a GAD-7 value of 19 and a PHQ score of 22). The 2022-2023 treatment records of Dr. Moeck are of little help because the applicant’s submissions do not direct me to aspects of this evidence that support her case (i.e., did the sessions treat accident-related symptomology?). While the applicant also relies on Dr. Moolla’s report of November 24, 2021, I placed less weight here because she points only to her own complaints of driving anxiety and reduced socialization and does not direct me to a corroborating medical opinion voiced by Dr. Moolla.
38The only pre-Brunshaw complaint of psychological issues voiced in the applicant’s submissions is at paragraph 20, where the applicant references a referral for psychotherapy in FCMC records dated November 18, 2020. However, the applicant’s submissions do not pinpoint this entry in Tab 3 of her documents brief as required by the CCRO for this matter, and I was unable to efficiently locate it in the 65 pages that comprise the clinical notes and records of the FCMC. Given that Dr. Nathoo appears to recommend psychotherapy on November 18, 2022 and in the absence of evidence that confirms a referral note in November 18, 2020—I find the applicant’s reference to 2020 in her submissions is likely a typo and I placed little weight on this entry.
39Taken together on balance, this evidence persuades me that the applicant did not suffer a psychological impairment as a result of the accident. I therefore decline to remove the applicant from the MIG on this basis.
Does the applicant have chronic pain syndrome or suffer functional impairments arising from chronic pain that resulted from the accident?
40No. I find the applicant has not demonstrated that MIG removal is warranted by accident-related chronic pain.
41To demonstrate she should be removed from the MIG, the applicant must show she sustained chronic pain with functional impairment that is more than sequalae from her accident-related injuries. The Tribunal has held that chronic pain syndrome, or pain that is a severe, debilitating condition distinct from ongoing or recurring pain, qualifies as chronic pain.
42The applicant submits her family doctor diagnosed chronic pain in November 2022 after she complained of pain in her lower back, shoulders, left ankle, and forearms. The applicant also says she was subsequently referred to a rheumatologist in January 2023 for a consultation on this pain. The applicant relies on the chronic pain criteria as set out in the sixth edition of the American Medical Association’s Guide to the Evaluation of Permanent Impairment (the “Guides”) to show she has chronic pain syndrome. While the applicant submits her evidence demonstrates, on balance, that she suffers from chronic pain syndrome, she goes on to cite C.G. v The Guarantee Company of North America, 2020 CanLII 40333 ON LAT (“C.G.”) to show a diagnosis of chronic pain syndrome is not strictly required to warrant MIG removal.
43The respondent argues that the applicant made no accident-related complaints to her family physician until November 2022, nearly two years after the accident. The respondent also says the applicant’s family physician did not document the diagnostic criteria for chronic pain in his chart. The respondent relies on the analysis of the Guides’ chronic pain criteria by Dr. Moolla in November 2021.
44I accept the applicant was diagnosed with chronic pain approximately two years after the accident. FCMC records indicate that Dr. Nathoo assessed chronic pain during a consultation with the applicant on November 18,.2022. However, I am persuaded the applicant’s pain, while chronic, does not constitute a severe or debilitating condition. This is because the applicant did not refer me to any contemporaneous complaints or medical opinions that support disability arising from pain up to November 2022 a period that spans two years since the accident occurred. This feature is distinguishable from C.G., where the Tribunal found the insured had visited her family doctor and other medical practitioners with respect to her pain repeatedly since the accident. While the applicant noted that the disability certificate (“OCF-3”) completed by Dr. Chad Hefford (chiropractor) on August 11, 2021, indicates a period of disability for more than 12 weeks, I find Dr. Hefford does not attribute this disability to chronic pain, but rather to sprains and strains to the applicant’s shoulders, lumbar spine, and left ankle. I further diminished the weight of Dr. Hefford’s disability finding because, at Part 6 of the OCF-3, he explains that the applicant self-reported her disability; Dr. Hefford does not refer to any testing he either performed or relied on to qualify the applicant’s self-report and inform his medical opinion.
45Similarly, the applicant does not point to observations of impairment documented by Dr. Nathoo during her November 2022 consultation. I make the same finding for the January 14, 2023 entry in FCMC records, which references a referral to Dr. Jha Mayank (rheumatologist). While Dr. Nathoo assesses myalgia (muscle aches and pains) and arthralgia (i.e., joint stiffness) consisting of pain in the applicant’s lower back, shoulder, forearm, and left ankle, Dr. Nathoo’s records are silent on any disability arising from this pain. The applicant’s submissions also fail to direct me to evidence of functional impairment arising from accident-related chronic pain in any of her treatment records.
46Given I have not been shown evidence of pain-related complaints for two years after the accident nor evidence to substantiate impairment arising from the applicant’s chronic pain I disagree the applicant’s pain amounts to more than sequalae from her accident-related injuries, or is a severe, debilitating condition distinct from ongoing or recurring pain.
47I now turn to the applicant’s arguments concerning the Guides. While there is no legislative requirement to meet the test for chronic pain syndrome as set out by the Guides, I find the applicant relies on the Guides to show she has chronic pain syndrome. The Guides list six criteria, of which three must be met to establish chronic pain syndrome:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substance: The applicant argues she was prescribed Cymbalta two years after the accident in November 2022 to treat accident-related symptoms. While I accept the applicant was prescribed Cymbalta by Dr. Nathoo in November 2022, I find the applicant has not pointed to evidence that substantiates the recommended duration of Cymbalta, nor that she has used it beyond this duration. Similarly, the applicant did not point to a medical opinion that shows she is abusing or dependent on Cymbalta. Therefore, the applicant does not meet this criterion.
ii. Excessive dependence on health care providers, spouse, or family: The applicant submits she was dependant on her health care providers as well as various clinics to manage her pain. However, the applicant has not referenced evidence in her submissions that persuades me this dependence is excessive. Therefore, the applicant does not meet this criterion.
iii. Secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain: The applicant contends that Dr. Brunshaw determined the applicant was unable to perform her basic housekeeping chores and home maintenance tasks due to the severity of her condition. I placed little weight on Dr. Brunshaw’s opinion because I was unable to locate this evidence as referenced in the applicant’s submissions. Page 16 of Tab 9 the coordinates for this evidence as provided by the applicant is the final page of Dr. Brunshaw’s report, which includes only the signature blocks of the assessors. But even if I were to consider Dr. Brunshaw’s opinion, I would find it fails to show the applicant meets this criterion because the applicant did not persuade me that Dr. Brunshaw’s scope of psychological practice includes diagnosing or assessing physical deconditioning.
iv. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs: The applicant asserts that Dr. Brunshaw reported complaints of physical limitations and psychological difficulties that rendered the applicant incapable of deriving pleasure from previously enjoyed activities. In my view, this is not persuasive evidence. I am not pointed to an objective measurement of the applicant’s physical capacity to show she is unable to go to the park or for long walks as she claims. I further find that physical capacity is outside the scope of practice for psychologists. And the applicant has not directed me to medical evidence that supports she ever experienced a period of disability. Therefore, the applicant does not meet this criterion.
48Given the applicant has failed to demonstrate she meets at least four of the six Guides’ criteria and that she must meet three of six criteria to reach the threshold of chronic pain I find it unnecessary to analyze the remaining two criteria. I therefore decline to remove the applicant from the MIG because she failed to show she experiences accident-related chronic pain with functional limitations, or that she experiences chronic pain syndrome.
The disputed OCF-18s
49I find the applicant has failed to show entitlement to the disputed OCF-18s for assessments relating to attendant care, psychology, and chronic pain, as well as services relating to physiotherapy and psychology.
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, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
51The respondent’s submissions indicate it has approved $3,461.65 toward medical and rehabilitation benefits, of which $2,959.35 has been incurred and paid. As such, I find the MIG is essentially exhausted. Given that the applicant remains in the MIG, it is not necessary to determine whether the disputed OCF-18s are reasonable and necessary.
The applicant’s NEB entitlement
52I find the applicant has not established entitlement to an NEB.
53Section 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) of the Schedule 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.
54The applicant submits that the disputed period for the NEB actually starts on August 11, 2021, and not on November 17, 2020, as the parties agreed at the time of the case conference. She maintains Dr. Chad Hefford (chiropractor) completed an OCF-3 in August 2021 that indicated she met the test for an NEB. The applicant also says Dr. Brunshaw indicated the applicant was unable to engage in many of her pre-accident activities.
55The respondent argues that the applicant has not met the Heath test, and that the June 2022 IE performed by Dr. Moolla revealed no evidence of ongoing impairment, as the applicant had excellent range of motion as well as normal sensation, reflexes, and strength.
56I place less weight on Dr. Hefford’s opinion that the applicant meets the NEB test because the applicant’s submissions do not direct me to any testing performed by Dr. Hefford, or medical records he may have reviewed, to corroborate the applicant’s self-report of being “continuously prevented from engaging in substantially all their (sic) pre-MVA ADLs (activities of daily living).” As such, it appears Dr. Hefford relied solely on the applicant’s own claims of disability, which is not sufficient, in and of itself, to show a complete inability to carry on a normal life. Further, Dr Brunshaw’s opinion is that the applicant is unable to engage in many of her pre-accident activities, which, in my view, falls short of the complete inability that the Schedule requires the applicant to show. The lack of comparison between the applicant’s pre and post-accident normal life activities in her NEB submissions is an omission that significantly hampers her claim. Sprain and strain-type injuries as documented in the OCF-3 do not inescapably lead to a conclusion that the applicant is disabled. She should undertake the guiding principles in Heath to show her accident-related impairments result in a complete inability to carry on a normal life, which she has failed to do here.
57Taken together on balance, this evidence persuades me that the applicant has failed to demonstrate entitlement to an NEB.
Interest
58Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Given there are no overdue benefits in this matter, interest is not payable.
Award
59I find the respondent is not liable to pay an award.
60The applicant sought 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.
61The applicant submits the respondent has unreasonably withheld payment of the NEB and disputed OCF-18s without giving due consideration to medical records in its possession, including family doctor’s records. The applicant therefore reasons she has been prejudiced by the respondent because she endured undue hardship (i.e., her recovery was affected by being denied treatment) owing to the respondent’s conduct.
62The respondent argues that the applicant has not made any specific arguments based on the log notes it produced in accordance with the CCRO, or relied on any other evidence from the accident benefits file that would warrant an award. The respondent reasons that an award ought not to be granted absent evidence or arguments alleging how it unreasonably withheld or delayed payments in the circumstances.
63The applicant is not entitled to the benefits disputed in this matter, so payment of these benefits cannot have been unreasonably withheld or delayed. The applicant is not pursuing an award for any other benefits that may have been earlier paid under her claim. As such, the applicant has not shown the respondent’s conduct merits an award.
ORDER
64The applicant remains in the MIG and is no entitled to the disputed OCF-18s. The applicant is not entitled to an NEB. Neither interest nor an award is payable.
Released: January 24, 2025
Michael Beauchesne
Adjudicator