Licence Appeal Tribunal File Number: 23-010711/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:
Abigail Williams
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Seema Passi, Paralegal
For the Respondent: Michelle Panagiotakos, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Abigail Williams, the applicant, was involved in an automobile accident on September 11, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from September 11, 2022, to date and ongoing?
ii. Is the applicant entitled to $2,352.30 for physiotherapy services, proposed by Holistic Home Care in a treatment plan/OCF-18 (“plan”) submitted March 1, 2023?
iii. Is the applicant entitled to the assessments proposed by Alliance Diagnostics and Treatment Inc., as follows:
a. $1,995.55 for an activities of daily living (“ADL”) assessment, in a plan submitted September 16, 2022;
b. $2,200.00 for a neurology assessment, in a plan submitted November 4, 2022;
c. $2,200.00 for an orthopaedic assessment, in a plan submitted November 4, 2022; and,
d. $4,493.56 ($5,166.54 less $672.98 approved) for an ADL assessment, in a plan submitted January 4, 2023?
iv. Is the applicant entitled to $3,609.43 for occupational therapy services, proposed by Alliance Diagnostics and Treatments, in a plan submitted June 28, 2023?
v. Is the applicant entitled to attendant care benefits in the amount of $3,305.25 per month from October 1, 2022, to date and ongoing?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
viii. Is the respondent liable to pay costs to the applicant?
3The Case Conference Report and Order (“CCRO”) dated March 15, 2024, lists an occupational therapy assessment in paragraph 2(iii)(e), however, in the parties’ submissions, the plan submitted June 28, 2023, by Alliance Diagnostics and Treatments is described as occupational therapy services, in the amount of $3,609.43. Therefore, I have reflected this in the issue in dispute set out above.
4In her written hearing submissions, the applicant added a request for costs on the basis that the respondent acted unreasonably, frivolously, or in bad faith in their denial of benefits. The respondent makes no submissions in response.
5Rule 19.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) allows a party to make a request for costs in writing or orally at a case conference or hearing at any time before a decision or order is released.
6I have added the applicant’s claim for costs to the list of issues in dispute because the applicant has raised the issues of costs against the respondent in its hearing submissions, and a party may raise the issue of costs at any stage of a hearing before the decision is released.
RESULT
7I find that the applicant is not entitled to a NEB in the amount of $185.00 for the period from September 11, 2022, to date and ongoing;
8The applicant is not entitled to the disputed treatment plans for assessments, physiotherapy services and occupational therapy services;
9The applicant is not entitled to attendant care benefits in the amount of $3,305.25 per month from October 1, 2022, to date, and ongoing;
10No interest is payable; and,
11The respondent is not liable to pay an award or costs to the applicant.
ANALYSIS
The applicant is not entitled to a NEB
12I find that the applicant has not established entitlement to an NEB as there is no evidence regarding a comparison between her pre- and post-accident functional abilities to support this claim.
13Section 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.
14Section 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.”
15The applicant submits that she did not return to her pre-accident personal care, housekeeping tasks, and social activities as the basis for her substantive entitlement to NEBs. The applicant relies on an activities of daily living (“ADL”) assessment report dated December 5, 2022, by George Kalkanis, occupational therapist. The applicant also relies on a Disability Certificate (“OCF-3”), dated September 16, 2022, completed by Saloni Motiwala, physiotherapist, which indicated that she was unable to carry on a normal life.
16The applicant submits that she is unable to return to any activity involving kneeling, squatting, crouching, bending, and reaching, and in particular, grocery shopping, cooking, cutting meat, using utensils, toenail clipping, and heavy chores as a result of her pain, depressions and anxiety. The applicant further submits that she finds social interactions difficult since the accident.
17I find that the applicant’s treating physician and specialist, including Dr. Christopher Veenema, family physician, and Dr. Alexander Huang, pain specialist, have diagnosed the applicant with severe neuropathic pain, major depressive disorder and anxiety associated with her pre-existing arteriovenous malformation (“AVM”), for which she requires sedation to sleep, and suffers from low energy, chronic pain, depression, anxiety, and concentration difficulties.
18The applicant did not provide any details of her pre-accident activities or demonstrate how her participation in those activities has been limited as a result of the accident. There is no comparison between the applicant’s pre- and post-accident activities. I find it is unclear what, if any of the applicant’s functional limitations can be attributed to her accident-related injuries. There are no submissions on which activities were most important to her, how she is prevented from engaging in the activities she normally engaged in pre-accident or evidence of the frequency and time commitments of her pre-accident activities. In the absence of this information, it is not possible to compare the applicant’s pre- and post-accident capabilities with respect to the activities she ordinarily engaged in or valued. As it is the applicant’s onus, I find that it has not been met in this case.
19Further, the respondent submits that the applicant’s pre-existing AVM of the left hip caused significant functional limitations for sitting and walking. The respondent further submits that the applicant also suffered from pre-existing anxiety and major depressive disorder.
20I agree with the respondent that the medical evidence does not establish a complete inability to carry on a normal life as a result of the accident. The respondent relied on the IE reports dated May 26, 2023, by Dr. Sekyi-Otu, orthopaedic surgeon, Jason Grewal, occupational therapist and Dr. Shrenik Parekh, psychiatrist which found the applicant’s limitations were due to her pre-existing AVM. In addition, the respondent argues that Jason Grewal found that the applicant returned to personal care and shared housekeeping and cooking tasks with her mother and friend. The respondent further submits that Dr. Parekh opined that since the applicant had returned to her own personal care and housekeeping tasks of cleaning, laundry, and outdoor maintenance, she does not meet the test for an NEB. In the absence of any evidence to the contrary, I put greater weight on the IE reports regarding the applicant’s functional abilities after the accident.
21I note that in the ADL report dated December 5, 2022, George Kalkanis indicates that the applicant’s pre-existing AVM affects her functional abilities for sitting, standing, walking, stair climbing, kneeling, squatting, lifting, carrying, and transfers (bed, toilet, and car), and he does not indicate the difference between the applicant’s pre-accident and post-accident functional abilities. I do not find the report of George Kalkanis persuasive because he attributes both the applicant’s pre-existing pain and her accident-related pain to her functional limitations. Therefore, it is difficult to discern how the accident affected the applicant’s functional abilities.
22Therefore, I find on a balance of probabilities that the applicant is not entitled to a NEB.
23In the respondent’s submissions, it argues that the issue of an NEB is limited to the period from 4-weeks to 104-weeks after the accident, or from October 9, 2022, to September 11, 2024, at $185.00 per week and not as listed at issue (i) in the CCRO as $185.00 per week from September 11, 2022, to date and ongoing. The applicant makes no submissions regarding the proposed change to the time-period in dispute of the claim for NEB.
24I find that it makes sense to amend the start date and the end date of the claim period for the NEB from October 9, 2022, to September 11, 2024, under the Schedule. Although the applicant has not agreed to limit the period of the claim for NEB, the start date is 4 weeks after the accident and the end date is 104 weeks after the date of the accident for all types of claims, or from October 9, 2022, to September 11, 2024.
25To receive payment for a treatment plan (OCF-18) under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. 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 same are reasonable.
26Section 16(1) of the Schedule states that rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person that are reasonable and necessary to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into their family, society and the labour market. Section 16(3)(i) of the Schedule states that these activities include home modifications and home devices that accommodate the needs of the insured person.
The applicant is not entitled to the plan for physiotherapy services at Holistic Home Care
27I find that the applicant is not entitled to physiotherapy services because the medical evidence does not support that further therapy is reasonable and necessary for the applicant’s accident-related injuries.
28The applicant seeks payment for a plan dated February 15, 2023, in the amount of $2,352.30 for physiotherapy services, submitted by Saloni Motiwala, physiotherapist of Holistic Home Care. The applicant submits that the plan will address her injuries including whiplash, sprain and strain type injuries of the shoulder, knee and back. The denial letter dated March 16, 2023, indicates that the plan consists of 18 physiotherapy sessions, a brace, heat pad and exercise equipment.
29The applicant refers to the plan itself, which is not in evidence. The applicant offered no substantive submissions to explain why the goals are necessary as a result of the accident and/or whether the costs are reasonable.
30The respondent submits that the applicant has not provided medical evidence in support of the disputed plan, and the applicant has attended Dr. Veenema on only three occasions with accident-related complaints. The respondent submits that the plan for physiotherapy was denied because the applicant was in the MIG.
31I find that the applicant has not met her onus to establish how the proposed plan for physiotherapy services is reasonable and necessary. The applicant only relies on the disputed plan from the treatment provider which describes her pain complaints as - her neck, shoulders, back, pelvis, limb, ankle, foot, toe, headaches, sleep disorder, nausea, anxiety disorder, and indicates that all the applicant’s symptoms are accident-related. I find that the applicant did not make submissions to explain how physiotherapy is reasonable and necessary or provide corroborating evidence of the need for physiotherapy.
32I find that the medical evidence, including the clinical notes and records (“CNRs”) of Dr. Veenema does not support the plan, since the applicant suffered from chronic pain with functional limitations before the accident. I find that Dr. Veenema notes on November 18, 2022, that the applicant’s chest wall pain may be related to the accident, and she had no other accident-related injuries. I also find that on November 7, 2023, Dr. Veenema notes accident-related back pain, but he does not make a recommendation for further physiotherapy.
33I find on a balance of probabilities that the applicant is not entitled to the proposed treatment plan for physiotherapy services for her accident-related injuries.
The applicant is not entitled to the ADL assessment
34I find that the applicant has not demonstrated that the plan in dispute for an ADL assessment is reasonable and necessary.
35The applicant submits that the plan dated September 16, 2022, completed by Larysa Mikhailava, chiropractor of Alliance Diagnostics and Treatments Inc., in the amount of $1,995.55 for an ADL assessment is reasonable and necessary. The plan consists of an assessment of the applicant’s activities of daily living, an attendant care needs assessment and form 1, report preparation, file review, travel time, and completion of the OCF-18. The goals of the plan are to properly evaluate the applicant’s injuries and determine the appropriate course of management.
36The applicant relies on the plan in dispute dated September 16, 2022, and the ADL report dated December 5, 2022, by George Kalkanis, occupational therapist in recommending attendant care and assistive devices for completing her personal care, and housekeeping tasks. As previously mentioned, I give less weight to the report of Mr. Kalkanis because the applicant’s functional abilities are adversely affected by her pre-existing AVM, and it is unclear how her functional abilities were changed after the accident.
37I find there is insufficient evidence in support of the plan dated September 16, 2022, for an ADL assessment because the applicant has not established that her functional limitations are as a result of the accident. I find that the evidence does not support the need for the assessment regarding the applicant’s accident-related injuries. Therefore, I find on a balance of probabilities that the applicant is not entitled to the amount of $1,995.55 for an ADL assessment.
The applicant is not entitled to the plan for a neurological assessment
38I find that the applicant has not established, on a balance of probabilities, that a neurological assessment is reasonable and necessary for her accident-related injuries.
39The applicant seeks payment for a plan dated November 2, 2022, for a neurology assessment with Dr. Lance Majl, submitted by Dr. Larysa Mikhailava, chiropractor of Alliance Diagnostics and Treatments, in the amount of $2,200.00 to address the applicant’s injuries including headaches and dizziness. In the plan, Dr. Mikhailava indicates that the applicant had a history of AVM. Dr. Mikhailava indicates that the applicant’s injuries are identified as nightmares, flashbacks, sadness, sleep difficulties, phobia, avoidance, stress, anxiety, decreased memory and concentration, low energy, headaches, dizziness, and difficulty coping with pain. The goals of the plan are to evaluate the applicant’s injuries and impairments to determine a course of management. I find that Dr. Mikhailava, as a chiropractor is not qualified to characterize these symptoms as neurological impairments.
40The applicant submits that a neurological assessment is reasonable and necessary since her symptoms are complex and persistent, and an evaluation by a neurologist is recommended to assess the etiology, status, and prognosis of her neurological and musculoskeletal complaints. I find that the applicant makes no substantive submissions to explain why the goals are necessary as a result of the accident, or how her symptoms are related to her pre-existing condition of AVM.
41I find that the applicant has not demonstrated that a neurological assessment is reasonable and necessary because the plan itself refers to a pre-existing condition, and the evidence does not support the need for the assessment for her accident-related symptoms. I am not persuaded by the recommendation of a neurological assessment by a chiropractor based on what appears to be psychological symptoms. Therefore, the applicant has not demonstrated that the plan for a neurological assessment is reasonable and necessary as a result of the accident.
The applicant is not entitled to the plan for an orthopaedic assessment
42I find that the applicant has not established, on a balance of probabilities, that an orthopaedic assessment is reasonable and necessary for her accident-related injuries.
43The applicant seeks payment for a plan dated November 2, 2022, completed by Dr. Mikhailava in the amount of $2,200.00 for an orthopaedic assessment with Dr. Tajedin Getahun. Dr. Mikhailava indicates that in addition to a pre-existing condition, the applicant’s symptoms are identified as nightmares, flashbacks, sadness, sleep difficulties, phobia, avoidance, stress, anxiety, decreased memory and concentration, low energy, headaches, dizziness, and difficulty coping with pain. The goals of the plan are to evaluate the applicant’s injuries and impairments to determine a course of management. However, it is unclear whether the applicant’s symptoms are related to her pre-existing condition or the accident. Dr. Mikhailava does not list any accident-related injuries which would require an orthopaedic assessment.
44The applicant submits that an orthopaedic assessment is reasonable and necessary given the complexity and persistence of her symptoms, and an orthopaedic evaluation is recommended to assess her symptoms.
45I find that the applicant has not demonstrated that an orthopaedic assessment is reasonable and necessary because the applicant relies on the plan itself, and the evidence does not support the assessment for her accident-related injuries. Therefore, the applicant has not demonstrated that the plan for an orthopaedic assessment is reasonable and necessary as a result of the accident.
The applicant is not entitled to occupational therapy services
46I find that the applicant has not demonstrated that the plan for occupational therapy services is reasonable and necessary as a result of her accident-related impairments.
47The applicant submits that the plan dated June 26, 2023, completed by Meera Bhatt, occupational therapist, of Alliance Diagnostics and Treatments, in the amount of $3,609.43 for occupational therapy services is reasonable and necessary. The plan consists of six occupational therapy sessions, with documentation, travel time, and planning services, a progress report, a discharge report, file review, consultation with other health providers, completion of the OCF-18 and 50 face masks. The goals of the plan are for pain reduction, increase independence, and return to activities of daily living.
48The applicant relies on the report dated December 5, 2022, by George Kalkanis in support of the plan for occupational therapy services. The applicant submits that she would benefit from education on pain management strategies, and proper biomechanics, use of a pain log, and relaxation techniques. I am not persuaded by the report of George Kalkanis because although he recommends pain management and relaxation strategies, he does not distinguish between the applicant’s pain related to her pre-existing condition and her accident-related symptoms.
49The respondent submits that the applicant has not met her onus to establish that the proposed plan for occupational therapy services is reasonable and necessary for her accident-related injuries. The respondent submits that the applicant had pre-existing chronic pain and functional limitations, and she has only visited her doctor on three occasions for her accident-related symptoms.
50I find on a balance of probabilities that the applicant has not met the burden of proof that the plan dated June 26, 2023, for occupational therapy services is reasonable and necessary for her accident-related injuries.
The applicant is not entitled to the outstanding amount of $4,493.56 plan for an ADL assessment
51I find that the applicant is not entitled to the outstanding amount of $4,493.56 for an ADL assessment since the applicant makes no submissions regarding this issue in dispute, and the plan is not in evidence.
52The CCRO lists five assessments in dispute under paragraph 2 (iii), proposed by Holistic Home Care. The applicant offered no substantive submissions regarding issue 2(iii)(d) in the amount of $4,493.56 ($5,166.64 less $672.98 approved) for an ADL assessment, in a plan submitted January 4, 2023, by Holistic Home Care. The applicant does not explain why the goals are necessary as a result of the accident and/or whether the costs are reasonable.
53The respondent submits that the applicant has not discharged her onus to provide compelling medical evidence in support of the plan for an ADL assessment.
54I find on a balance of probabilities that the applicant is not entitled to the proposed plan for an ADL assessment because the applicant made no submissions nor provided any evidence to explain how the plan is reasonable and necessary. As a result, the applicant has not discharged her onus to demonstrate that the assessment is reasonable and necessary for her accident-related injuries.
The applicant has not demonstrated that ACB are reasonable and necessary
55I find that the applicant is not entitled to ACB as she has not demonstrated that attendant care expenses are reasonable and necessary for her accident-related injuries, nor that attendant care expenses have been incurred.
56The applicant claims that she is entitled to ACB of $3,305.25 per month from October 1, 2022, to date and ongoing for her functional impairments, including dressing, grooming, toenails, bathroom hygiene, bedmaking, caring for clothing, transfers, exercises, medications, and dressings.
57Section 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 ACBs provided by an aide or attendant. The monthly amount of attendant care that an applicant is entitled to is determined in accordance with a form called an Assessment of Attendant Care Needs (“Form-1”).
58Section 3(7)(e)(i) and (ii) of the Schedule establish that an insured person has incurred an expense if the person has received the goods or services to which the expense relates, paid the expense, promised to pay the expense, or is otherwise legally obligated to pay the expense. Section 3(7)(e)(iii) of the Schedule sets out two categories of attendant care providers: professional service providers, who provide services in the course of the employment, occupation, or profession in which they would ordinarily be engaged but for the accident; and non-professional service providers who have sustained an economic loss as a result of providing goods or services to the injured person.
59The onus is on the applicant to prove that she required the care of an aide or attendant as a result of the accident and that she incurred the expense of hiring one. Here, the applicant claims entitlement to an ACB based on a Form-1 dated November 4, 2022, completed by George Kalkanis, occupational therapist, and invoices from Caring4U, which are not in evidence.
60The respondent submits that the applicant’s claim for ACB should be dismissed, as she has not adduced any evidence indicating that attendant care services have been incurred, and there is no evidence in support of the applicant’s claim for ACB in the amount of $3,305.25. I find that the evidence does not support that the applicant has incurred the services as set out in s.37(e) of the Schedule.
61The respondent relies on the IE reports of Dr. Sekyi-Otu, Jason Grewal, and Dr. Parekh, in which all the assessors conclude that the applicant does not require assistance with her personal care for her accident-related injuries. The respondent further submits that Dr. Parekh opined that the applicant’s limitations are related to her pre-existing AVM.
62I find on a balance of probabilities that the applicant is not entitled to ACB, as she has not demonstrated that she requires attendant care for her accident-related injuries, nor has she submitted any evidence or invoices that attendant care services were incurred, pursuant to the requirement established in s.19 of the Schedule.
Interest
63Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no benefits owing, interest is not payable.
Award
64The applicant sought an award under s. 10 of Reg. 664 because the respondent’s denials of the disputed plans did not comply with s. 38(8) of the Schedule. However, the applicant makes no submissions, nor did she provide any evidence to explain how the respondent’s notices were non-compliant.
65Under 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. I find an award is not appropriate because the applicant has not met her onus to explain how the respondent unreasonably withheld or delayed the payment of benefits. Thus, an award under s.10 of Reg. 664 is not warranted.
Is the applicant entitled to costs?
66The applicant’s request for costs is denied.
67Under Rule 19, the Tribunal may grant costs if it finds that a party acted unreasonable, frivolously, vexatiously or in bad faith. In deciding whether to award costs, several factors are to be considered by the Tribunal: the seriousness of the conduct, whether the conduct was in breach of a Tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, prejudice to the other party, and the potential impact a costs order would have on individuals accessing the Tribunal system. Under Rule 19.5, the Tribunal may award a different cost amount than requested.
68In seeking an unspecified amount in costs from the respondent, the applicant argues that the respondent acted unreasonably, frivolously, or in bad faith in their denial of the disputed plans. The applicant submits that the respondent’s denial of the plans is unreasonable conduct, and an abuse of process.
69I find that the applicant makes no submissions to explain how the respondent’s denials are non-compliant, and the denials in and of itself, is not necessarily unreasonable, frivolous, vexatious, or in bad faith. The respondent’s denials of the disputed plans did not interfere with the Tribunal’s ability to carry out a fair, efficient, and effective process. The applicant makes no submissions to address whether she has suffered any prejudice as a result of the fact that the respondent denied the disputed plans. Further, the applicant has not specified an amount of costs.
70For all these reasons, I find that the respondent is not liable to pay costs to the applicant.
ORDER
71For the reasons set out above, I find that:
i. The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from September 11, 2022, to date and ongoing;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to attendant care benefits;
iv. Interest is not payable and the respondent is not liable to pay an award;
v. As the applicant has not met the test for a cost order, the respondent is not liable to pay costs to the applicant; and,
vi. The application is dismissed.
Released: June 30, 2025
Lisa Holland
Adjudicator