Liabotis v. Wawanesa Mutual Insurance Company, 2025 CanLII 62720

Citation: Liabotis v. Wawanesa Mutual Insurance Company, 2025 ONLAT 23-003573/AABS

Licence Appeal Tribunal File Number: 23-003573/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:

James Liabotis

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Leo Demarce

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Morgan MacDonald, Counsel

HEARD: In Writing

OVERVIEW

1James Liabotis, the applicant, was involved in an automobile accident on January 8, 2021, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

[2] The issues in dispute are: i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from February 6, 2021 to January 7, 2023? ii. Is the applicant entitled to $4,387.20 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted May 24, 2022? iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan submitted July 6, 2022? iv. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant? v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to non-earner benefits.

4The applicant is entitled to $4,387.20 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted May 24, 2022.

5The applicant is not entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan submitted July 6, 2022.

6The applicant is entitled to an award of 50% of $4,837.20 which is $2,193.60, plus applicable interest as per section 10 of Regulation 664 because the insurer unreasonably withheld payment of this benefit to the applicant.

7The applicant is entitled to interest on overdue payment of benefits in accordance with s. 51 of the Schedule.

ANALYSIS

Non-Earner Benefits

8I find that the applicant is able to carry on a normal life and is not entitled to NEB.

9Section 12(1) 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, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

The Applicant’s Submissions Relating to Activities of Daily Living for NEB

10The applicant submits that he is unable to perform substantially all of the activities of daily living. The applicant refers to OCF-18s, clinical notes and records (“CNR”) and imaging such as x-rays, MRIs and ultrasounds which were completed after the accident.

11The imaging supported the existence of a full-thickness tear involving the supraspinatus tendon, fluid buildup, and degenerative joint disease.

12The CNRs from Scarborough Health Network and Albany Physiotherapy Network support findings of persistent shoulder pain, inability to do overhead activities and lifting, pain in back of neck radiating across his shoulder, headaches, night pain and sleeping difficulty due to constant pain.

13The CNRs from orthopaedic surgeon Dr. Caroline Scott reported that the applicant is right hand dominant and that his right shoulder pain was made worse by the accident. He reports that the pain in his shoulder causes difficulty sleeping and can only sleep upright on the couch. Physiotherapy provided improvement and he can now sleep horizontal in his bed. Dr. Scott also discussed rotator cuff repair surgery with the applicant.

14An OCF-18 dated May 24, 2022 prepared by Dr. Tavares identified that the applicant is suffering from difficulty with sustained postures, standing, walking, sitting, lifting, pushing/pulling, bending and overhead reaching.

15An OCF-18 dated July 6, 2022 prepared by psychologist Dr. Sharleen McDowall where a pre-screening report states that the applicant was suffering from a post-accident psychological impairment.

The Respondent’s Submissions Relating to Activities of Daily Living for NEB

[16] The respondent argues that the applicant is able to perform almost all of the activities of daily living that he enjoyed prior to the accident. The respondent provides a detailed timeline of the applicant’s pre-accident medical history starting on October 17, 2018 which include: i. X-rays ii. A bone mineral density exam iii. Ultrasounds of the left and right shoulders iv. CNRs from Albany Physiotherapy Clinic

17The respondent points to evidence that the applicant had pre-existing conditions that caused the complaints from the applicant that would have an impact on the applicant’s ability to enjoy the activities of daily living. This evidence includes x-rays and ultrasounds on the applicant’s shoulders showing that the applicant had already suffered from issues in both shoulders. The bone mineral density exam deemed the applicant to be high risk. The applicant had been attending physiotherapy on his shoulders prior to the accident.

18The respondent had the applicant attend three s. 44 assessments, a physiatry assessment, an in-home OT assessment, and a psychological assessment.

[19] The physiatry assessment dated November 4, 2022 was performed by Dr. Oshidari who concluded: i. Spine impairment is due to degenerative changes due to aging and not the accident. ii. The right shoulder issues are pre-existing and not caused by the accident. iii. The applicant stated that he was independent in all activities of daily living and is driving a car.

[20] The OT In-Home Assessment dated November 14, 2022 was performed by OT Shaynee Mehta who concluded: i. Applicant is able to change his clothes and shower and is independent with grooming. ii. Applicant is driving. iii. He is able to perform the same housekeeping tasks as he did prior to the accident. iv. The applicant reported going to Greece for four months in 2022.

[21] March 6, 2023 – s. 44 Psychological Assessment performed by Psychologist Dr. Godwin Lau who concluded i. The applicant stated that he was able to drive and able to look after his self-care tasks and able to carry light weight in his left hand. And that he can still do all of the household activities he did prior to the accident. ii. The applicant continues to see his kids and grandchildren. iii. Psychological testing scores put the applicant in the normal range.

NEB is Denied

22In reviewing the evidence provided to me by the parties I find that the applicant has not met his burden of proving that he is unable to carry on a normal life; instead, he is able to substantially enjoy the activities of daily living as he did prior to the accident. I am persuaded by the evidence that the respondent pointed to regarding the applicant’s pre-accident medical history because it demonstrated that the applicant had pre-existing conditions that the applicant argued were as a result of the accident.

[23] The history includes: i. The applicant was attending physiotherapy for his shoulders at the time of the accident. ii. The applicant had X-rays and ultrasounds on his shoulders before and after the accident that were comparable and not worse over time. iii. In the s. 44 assessments the applicant states that he is able to perform the activities of daily living including self care, household chores, change clothes, shower. iv. The applicant drives a car. v. The applicant was able to take a trip to Greece for 4 months.

24I find that on a balance of probabilities that the evidence produced by the respondent carries more weight than the applicant’s with regards to the applicant’s ability to carry on a normal life, as compared to his pre-accident activities. The respondent’s evidence included pre-accident medical evidence, as well as s. 44 assessments. The applicant’s evidence did not include pre-accident medical evidence and relied on OCF-18s as opposed to medical assessments. Based on the weight given to the respondent’s arguments the Non-Earner Benefits are denied.

Chiropractic Services

25I find that the applicant is entitled to $2,004.96 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted May 24, 2022 because the chiropractic services component of the treatment plan and the preparation of the OCF-18 are both reasonable and necessary.

26To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant must prove that the treatment plan addresses an injury that is a result of the accident, that it will benefit the applicant, and that the cost of the treatment plan is reasonable.

27I find that the applicant has met the burden of proof that the chiropractic services, are reasonable and necessary. The goals of this OCF-18 are to reduce pain, increase strength and range of motion, and return to pre-accident activities of normal living.

[28] The OCF-18 recommends 16 visits over 8 weeks for the following. The approved activities fall into the Professional Services Guidelines (“PSG”) and total $2,004.96: i. Preparation for the OCF-18 for $200.00 – approved ii. Documentation for $360.00 - denied iii. Chiropractic at $112.81 per session for a total of $1,804.96 - approved iv. Targeted exercise at $65.41 per session for a total of $902.56 - denied v. Acupuncture at $49.98 per session for a total of $799.68 - denied vi. Travel time at $320.00 – denied

29The CNR of orthopaedic surgeon Dr. Scott dated May 26, 2021 states that the applicant has been going to physiotherapy and doing massage, and that these treatments have been helping with his motion and is improving. The respondent noted in the discharge report from Albany Physiotherapy Clinic dated February 5, 2021 that the applicant’s shoulders improved overall and that he can manage his activities of daily living. The CNR from Don Valley Health, where he is receiving therapy at home, state that the applicant has also proven to be an enthusiastic participant and that while his improvement has been slow, it is very consistent.

30Based on the medical evidence above, the applicant has demonstrated that he responds well to modalities like what the OCF-18 is recommending, and that the applicant would benefit from the chiropractic treatment recommended. It is also demonstrated that the applicant, who is not confined by the minor injury guideline (“MIG”), continues to require therapy of this nature. The cost of these services is also reasonable, and therefore I find the applicant is entitled to the treatment plan in the total of $2,004.96 for the chiropractic services and the preparation of the OCF-18 as stated above in paragraph 28.

Psychological Assessment

31I find that the applicant is not entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan submitted July 6, 2022.

32The applicant’s submissions relied on a pre-screening report from psychologist Dr. Sharleen McDowall which was part of the OCF-18 dated July 6, 2022. I do not provide this report with as much weight as the s. 44 assessment produced by Dr. Lau because it did not contain the level of diagnostic detail that the assessment provided.

[33] I am persuaded by the s. 44 assessment dated March 6, 2023 performed by Psychologist Dr. Godwin Lau because he demonstrated that the applicant did not suffer from a psychological impairment due to the accident. Dr. Lau’s findings included: i. The applicant stated that he was able to drive and able to look after his self-care tasks and able to carry light weight in his left hand. ii. The applicant can walk, sit, stand. iii. The applicant stated he can still do all of the household activities he did prior to the accident. iv. The applicant continues to see his kids and grandchildren. v. Psychological testing scores put the applicant in the normal range.

34I find that on a balance of probabilities that a psychological assessment is not reasonable or necessary because of the findings of Dr. Lau, and that the applicant’s evidence did not provide the level of diagnostic detail that the s. 44 assessment provided. The request for a psychological assessment is denied.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest applies to the chiropractic services treatment plan.

Award

36The applicant sought an award under s. 10 of Reg. 664. Under s. 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.

37I find that the applicant is entitled to an award as the insurer unreasonably withheld or delayed payment of the chiropractic benefits. I find that the applicant has provided significant evidence that his injuries have been treatable through physical modalities such as physiotherapy, massage and in-home therapy treatments. The applicant is not held within the MIG which indicates that the applicant requires treatment that is greater than what a minor injury would require for full recovery.

[38] The respondent denied the treatment plan and requested a s. 44 assessment to determine if the treatment plan is reasonable and necessary. In the denial letter dated June 6, 2022, the insurer states that this decision is based on their review of: i. the submitted treatment plan, ii. medical information, iii. and from the conversation with the applicant dated January 26, 2022, where the applicant states that he feels better and doesn’t feel like he needs to continue with treatment.

39In the s. 44 assessment dated January 5, 2023, Dr. Oshidari found that the applicant’s injuries were not caused by the accident because he would have experienced pain immediately after the accident, and not two days later. Furthermore, the assessment requests that Dr. Oshidari make a finding on the injuries falling within the MIG, which he concluded that they did.

40I find that the insurer used the applicant’s opinion as to his condition as conclusive rather than conversational. The applicant is not a medical doctor, and his opinion on his current condition is not conclusive, and yet the insurer treated it as such. The insurer also stated that they reviewed the medical information in order to come to the conclusion that an assessment was required.

41From that a s. 44 assessment was produced that focused on the viability of a treatment plan and potential for a full recovery. The assessment also focused on the question of the injuries falling within the MIG. Based on this assessment the insurer denied the applicant the treatment plan.

[42] I find that the insurer did not consider this treatment plan with the insight that is inspired by the term of utmost trust. The insurer was aware that the applicant had been receiving other treatment plans such as physiotherapy and other modalities similar to those proposed in this treatment plan. The insurer was also aware that the respondent was an enthusiastic participant in these treatment plans and was receiving slow but steady improvement as a result. For example, the respondent provided in their submissions the following: i. In the discharge report from Albany Physiotherapy Clinic dated February 5, 2021 that the applicant’s shoulders improved overall and manage his activities of daily living.

43The respondent acknowledges the benefits of therapy for this hearing but denies them for the purposes of ongoing treatment. I find that the insurer knew that the findings of this s. 44 assessment would be a denial, and that the assessor would argue that the injuries were minor, and yet the applicant is not held within the MIG. The insurer knew that the barriers to recovery for the applicant would be pre-existing conditions and his age, and that the prognosis would be fair. The assessment had to have these conclusions as long as the cause of the injury was in question.

44I find that the insurer pursued a denial of this treatment plan through the assessment process because they knew that the assessor would come to the conclusions cited above. The applicant was not confined to the MIG, so his injuries are already considered to require treatment over the MIG standards. The assessment addresses the MIG and therefore considers the treatment as minor. The assessor considers causation (a pre-existing injury not caused by the accident) because the applicant only complained about the pain two days following the accident. I give this little weight because the assessor can’t be sure that the applicant didn’t feel pain earlier than two days after the accident.

ORDER

45The applicant is not entitled to non-earner benefits.

46The applicant is entitled to $2,004.96 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted May 24, 2022.

47The applicant is not entitled to a psychological assessment.

48The applicant is entitled to an award of 50% of $2,004.96 which is $1,002.48, plus applicable interest as per section 10 of Regulation 664 because the insurer unreasonably withheld payment of the benefit to the applicant.

49The applicant is entitled to interest on overdue payment of benefits.