Waddell v. Motor Vehicle Accident Claims Fund (MVACF), 2025 CanLII 72398

Citation: Waddell v. Motor Vehicle Accident Claims Fund (MVACF), 2025 ONLAT 23-006105/AABS

Licence Appeal Tribunal File Number: 23-006105/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:

Maerick Waddell

Applicant

and

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

DECISION

ADJUDICATOR:

Caley Howard

APPEARANCES:

For the Applicant:

Dayana Soto Santana, Paralegal

For the Respondent:

Daniel Fenwick, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Maerick Waddell, the applicant, was involved in an automobile accident on July 22, 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, Motor Vehicle Accident Claims Fund, 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”) of $185.00 per week from July 29, 2022 to date and ongoing?

ii. Is the applicant entitled to $2,595.02 for occupational therapy services proposed by FunctionAbility Rehabilitation Service LP in a treatment plan/OCF-18 (“treatment plan”) dated September 21, 2022?

iii. Is the applicant entitled to $1,829.92 for an occupational therapy assessment, proposed by FunctionAbility Rehabilitation Service LP in a treatment plan dated August 22, 2022?

iv. Is the applicant entitled to $896.23 ($2,592.33 less $1,696.10 approved) for a psychological assessment, proposed by Medex Assessments Inc. in a treatment plan dated February 14, 2023?

v. Is the applicant entitled to $720.00 ($1,500.00 less $780.00 approved) for physiotherapy services, proposed by Georgina Physiotherapy and Sports Injury Clinic in a treatment plan dated April 6, 2023?

vi. Is the applicant entitled to $1,071.29 ($4,395.29 less $3,324.00 approved) for a psychological assessment, proposed by Medex Assessments Inc. in a plan dated June 8, 2023?

vii. Is the respondent liable to pay an award under s. 10 of Reg. 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

3I find that:

i. The applicant is not entitled to an NEB from July 29, 2022 to date and ongoing;

ii. The applicant is entitled to $2,595.02 for occupational therapy services, proposed in a treatment plan dated September 21, 2022, plus interest;

iii. The applicant is entitled to $1,829.92 for an occupational therapy assessment, proposed in a treatment plan dated August 22, 2022, plus interest;

iv. The applicant is entitled to $896.23 for a psychological assessment, proposed in the partially approved treatment plan dated February 14, 2023, plus interest;

v. The applicant is not entitled to $720.00 for physiotherapy services, proposed in a partially approved treatment plan dated April 6, 2023;

vi. The applicant is entitled to $1,071.29 for psychological services, proposed in a partially approved treatment plan dated June 8, 2023, plus interest; and

vii. The respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

The appellant is not entitled to an NEB

4I find that the appellant is not entitled to an NEB from July 29, 2022 to date and ongoing.

5Section 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.

6The applicant has the burden of proving that they meet this test as a result of their accident-related impairments.

7The applicant submits that he suffered an injury to his right hand, a laceration of his right ankle and psychological disorders, specifically post-traumatic stress disorder (PTSD), major depressive disorder and generalized anxiety disorder, as a result of the accident. He submits that he suffers from a complete inability to carry on a normal life as a result. In support of this position, he relies on the Disability Certificate (OCF-3) dated September 19, 2022, the report of Calvin Leung, occupational therapist, dated September 22, 2022, the psychological assessment of Dr. Silvia Tenenbaum, psychologist, dated June 8, 2023 and the psychological assessment of Dr. Konstantinos Papazoglou, psychologist, dated June 19 and 26, 2024.

8The respondent submits that it paid the applicant an NEB based on the OCF-3 completed by Mr. Leung until February 7, 2023, when it discontinued payments pursuant to s. 37 of the Schedule. The respondent submits that it terminated the NEB effective April 28, 2023 because the applicant did not suffer a complete inability to carry on a normal life. The respondent relies on the neurological report of Dr. Brandon Kucher, neurologist, dated April 17, 2023, the physiatry report of Dr. Deborah Rabinovitch, physiatrist, dated April 17, 2023 and the psychology report of Dr. Rakesh Ratti, psychologist dated April 17, 2023.

9I find that the applicant has not met his burden of proving that his accident-related impairments continuously prevent him from engaging in substantially all of the activities he engaged in prior to the accident.

10The find that the applicant has proven that his psychological diagnoses were likely related to the accident. Further, the reports of Mr. Leung, Dr. Tenenbaum and Dr. Papazoglou all reported that the applicant’s social life had been curtailed, and referred to specific activities, such as swimming, fishing, visiting with friends, playing basketball, and driving, that he was no longer able to do, or that he did at a reduced level post-accident. However, I find that the reports did not include any information about the importance of these activities to the applicant before the accident, other than in very vague terms, such as stating that these were activities that he enjoyed. I was not directed to evidence respecting the amount of time the applicant spent engaging in these activities before the accident. The vagueness of the reports provided by the applicant to Mr. Leung, Dr. Tenenbaum and Dr. Papazoglou have left me unable to engage in the necessary comparison of the applicant’s pre and post-accident activities that would be necessary to find the applicant is entitled to an NEB.

11In addition, the psychology report of Dr. Ratti reported that the applicant was independent with respect to his self-care and with respect to many household tasks, as of April 17, 2023. Dr. Tenenbaum’s psychology report confirmed that the applicant was completing his self-care tasks independently. This evidence is not consistent with a complete inability to carry on a normal life.

12Therefore, I find that the applicant has not established, on a balance of probabilities, that he has suffered a complete inability to carry on a normal life as a result of the accident. He is not entitled to an NEB from July 29, 2022 to date and ongoing.

The applicant is entitled to the treatment plans for occupational therapy services dated September 21, 2022 and an occupational therapy assessment dated August 22, 2022

13I find that the applicant is entitled to the treatment plans for occupational therapy services dated September 21, 2022 and an occupational therapy assessment dated August 22, 2022.

14To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

15To receive payment for an assessment proposed in a plan, the applicant has the onus to prove there are reasonable grounds to believe that a condition exists that would warrant further investigation by way of an assessment.

16The treatment plan for the occupational therapy assessment was submitted by Mr. Leung of Functionability Rehabilitation on August 22, 2022 and sought funding in the amount of $1,829.92. The treatment plan for occupational therapy services was submitted by Mr. Leung on September 21, 2022 and sought funding of $2,595.02. The goals of the treatment plan for occupational therapy services included: addressing physical and emotional impairments, to assist with community referrals as appropriate, to provide functional recommendations for sleep challenges and to collaborate with a psychologist to reinforce principles, to address the applicant’s mental health and behavioural activation in the community. The parties’ submissions addressed the two treatment plans together.

17The applicant submits that the treatment plans are reasonable and necessary as a result of the physical and psychological injuries that he sustained in the accident, which involved being trapped in a vehicle that had been driven into a canal. In support of his position, the applicant relies on the clinical notes and records (“CNRs”) of his family doctor, Dr. Giftochristos, the CNRs from Southlake Regional Health Centre (the “hospital”), the CNRs from his physiotherapy clinic, Georgina Physiotherapy & Sport Injuries, the occupational therapy report of Mr. Leung dated September 22, 2022, and the psychology assessment report of Dr. Tenenbaum dated June 13, 2023.

18The respondent submits that the treatment plans are not reasonable and necessary and relies on the occupational therapy insurer’s examination (“IE”) of Lee Birbrager, occupational therapist, dated December 22, 2022, the physiatry IE of Dr. Abdul Wahab Khan, physiatrist, dated December 22, 2022 and the psychological IE of Dr. Ratti, dated March 28, 2023.

19The CNRs from the hospital show that the applicant received a large laceration to his foot and ankle in the accident. The CNRs from the physiotherapy clinic show that the applicant attended physiotherapy on and off for approximately one year after the accident to treat the pain and numbness in his foot and ankle resulting from this injury. The CNRs of Dr. Giftochristos show that the applicant continued to report numbness in his foot as of March 2023, when Dr. Giftochristos referred the applicant to a neurologist.

20I find that the report of Dr. Khan shows that while the applicant may have continued to experience pain in his foot and ankle, his functional impairments related to his physical accident-related injuries had resolved by December 2022.

21Dr. Ratti and Dr. Tenenbaum both opined that the applicant suffered from PTSD, major depressive disorder and generalized anxiety disorder. Dr. Ratti opined that these conditions were all pre-existing, although he agreed they had likely been exacerbated by the accident. Dr. Ratti noted that the applicant reported being socially withdrawn but that he was unable to get a sense of the applicant’s pre-accident social involvement. While the applicant reported his anxiety regarding riding in a vehicle to Dr. Ratti, Dr. Ratti found that the applicant’s psychological injuries resulted in no functional impairments.

22In contrast, Dr. Tenenbaum opined that despite the applicant’s report of pre-accident psychological diagnoses, it was likely that his diagnoses of PTSD, anxiety and depression were related to the accident. I accept Dr. Tennebaum’s opinion because the applicant’s reported psychological symptoms at the time of Dr. Tennebaum’s report are closely tied to the accident. These symptoms include nightmares about being trapped in the water and anxiety about riding in a vehicle. The applicant reported becoming socially withdrawn after the accident, which he contrasted to a busy social life before the accident. I find that the symptoms that the applicant reported to Dr. Tenenbaum are consistent with the preponderance of medical evidence at around the time of the treatment plans, in particular the report of Mr. Leung. Therefore, I prefer Dr. Tennebaum’s opinion to that of Dr. Ratti, where the two differ.

23While Mr. Leung reported that the applicant was experiencing some functional impairments due to his physical injuries, he also reported that the applicant was having difficulties with driving, sleep and engaging in social situations, all of which Dr. Tenenbaum attributed to the applicant’s psychological injuries.

24In contrast, Mr. Birbrager opined that, as of December 22, 2022, the applicant was not suffering from any functional impairments as a result of the accident that would require occupational therapy sessions. However, I find that Mr. Birbrager’s report focused solely on the applicant’s physical impairments and did not consider the ways in which the proposed treatment plan could assist the applicant with his psychological impairments. In addition, I find that Mr. Leung’s assessment was performed closer to the dates on which the treatment plans were submitted and is therefore more likely to reflect the applicant’s condition on at that date.

25I find that the applicant has established that a condition exists that warrants further examination. Specifically, the applicant has established that his psychological impairments, sleep difficulties and anxiety while travelling in a vehicle warrant an occupational therapy assessment.

26I further find that Mr. Leung’s report establishes a need for occupational therapy services to address the applicant’s psychological impairments, to assist with community referrals, to provide functional recommendations for sleep challenges and to collaborate with a psychologist to reinforce principles, to address the applicant’s mental health and behavioural activation in the community.

27As a result, I find that the applicant has established that the treatment plans for occupational therapy services and an occupational therapy assessment are reasonable and necessary and he is entitled to the treatment plans dated September 21, 2022 and August 22, 2022.

The applicant is entitled to the outstanding amount of $896.23 for a psychological assessment

28I find that the applicant is entitled to the outstanding amount of $896.23 for a psychological assessment, proposed in a treatment plan dated February 14, 2023.

29The treatment plan was proposed by Medex Assessments Inc. and sought funding of $2,592.33 for a psychological assessment. In a letter dated March 28, 2023, the respondent agreed that the proposed psychological assessment was reasonable and necessary but disagreed that the cost proposed in the treatment plan was reasonable. The respondent partially approved the plan in the amount of $1,696.10 based on the opinion of Dr. Ratti that a mental health assessment was warranted but that a total of 10 hours was sufficient given the applicant’s diagnoses.

30The applicant submits that the treatment plan is reasonable and necessary in its entirety due to the severity of the applicant’s psychological impairments, which have resulted in functional impairment and which require assessment and treatment.

31The respondent submits that the amount of $1,696.10, which represents 10 hours at a rate of $149.61 per hour, is reasonable and necessary to cover the proposed psychological assessment. This reduction in the number of hours for a psychological assessment was based on Dr. Ratti’s opinion that the applicant’s psychological impairments pre-existed the accident and that the applicant had no functional impairments as a result of his psychological impairments. As set out above, I prefer the opinion of Dr. Tenenbaum, who opined that the applicant’s psychological impairments were caused by the accident and have resulted in functional impairment, to that of Dr. Ratti because Dr. Tenenbaum’s opinion conforms with the functional impairments reported by Mr. Leung and the psychological symptoms that are closely tied to the accident, such as the nightmares and the fear of riding in vehicles.

32I find that the applicant has proven, on a balance of probabilities, that the number of hours proposed in the treatment plan was reasonable and therefore he is entitled to the outstanding amount of the treatment plan.

The applicant is entitled to the outstanding amount of $1,071.29 for the psychological services treatment plan

33I find that the applicant is entitled to the outstanding amount of $1,071.29 for the psychological services treatment plan.

34The treatment plan was completed by Dr. Tenenbaum and sought funding of $4,395.29 for psychological services, including 20 sessions of virtual psychological treatment. By letter dated July 25, 2023, the respondent indicated that it agreed to fund 14 sessions of psychological treatment, in accordance with the March 28, 2023 IE report of Dr. Ratti. On this basis, the respondent partially approved the treatment plan in the amount of $3,324.00. The respondent relies on Dr. Ratti’s opinion in support of its partial approval.

35The applicant submits that the full treatment plan is reasonable and necessary and relies on Dr. Tenenbaum’s psychological assessment report of June 13, 2023.

36Dr. Ratti’s opinion that the applicant would benefit from 14 hours of mental health treatment was given in the context of Dr. Ratti’s IE in respect of the occupational therapy treatment plans. Dr. Ratti was not asked to give an opinion on the reasonableness and necessity of the treatment plan for psychological services. As a result, I give less weight to Dr. Ratti’s recommendation and prefer Dr. Tenenbaum’s recommendation for 20 hours of mental health treatment, which I find is supported by her psychological assessment report.

37Therefore, I find that the applicant has proven, on a balance of probabilities, that the entire treatment plan is reasonable and necessary. He is entitled to the disputed amount of the treatment plan in the amount of $1,071.29.

The applicant is not entitled to the outstanding amount of the treatment plan for physiotherapy

38I find that the applicant is not entitled to the outstanding $720.00 of the treatment plan for physiotherapy.

39The treatment plan was submitted April 6, 2023 by Georgina Physiotherapy and Sports Injury Clinic and sought funding of $1,500.00 for physiotherapy services. The treatment plan proposed 20 physiotherapy sessions. By letter dated May 15, 2023, the respondent approved 8 physiotherapy sessions in the amount of $780.00.

40The applicant submits that he is entitled to the outstanding amount of the treatment plan because the entire treatment plan is reasonable and necessary due to his foot pain, back pain, chronic pain and upper extremity injury pain. In support, he relies on the CNRs from Dr. Giftochristos and from Georgina Physiotherapy and Sports Injury Clinic.

41The respondent relies on the May 11, 2023 physiatry IE of Dr. Deborah Rabinovitch, in which Dr. Rabinovitch opines that the applicant had reached maximum therapeutic benefit that could be expected from the passive treatments that he had received to date. Dr. Rabinovitch recommended 8 further sessions of physiotherapy treatment to provide instruction on a strengthening exercise program that could be transitioned to a self-directed exercise program.

42The CNRs of the physiotherapy clinic show that the applicant attended regular sessions for treatment for his numb foot and sore ankle, between October 2022 and April 2023. The CNRs report continual improvement in the applicant’s pain and ankle stiffness throughout that period. The applicant did not attend sessions between April 6, 2023 and June 9, 2023, because he moved and it was difficult for him to get a ride to the clinic. However, the June 9, 2023 note reports that the applicant reported feeling better and had full range of motion in the ankle. The final note from the clinic, dated June 28, 2023, reported that the applicant’s ankle stiffness was resolved and recommended that the applicant continue exercises to increase strength.

43The CNRs of Dr. Giftochristos show that the applicant sustained a range of pre-accident and post-accident injuries. The applicant’s primary complaint immediately after the accident was the laceration on his foot, which required 15 staples. The CNRs attribute the applicant’s other complaints to other serious incidents including a fall from a second story balcony, a fight in which he was hit in the head with a hammer, someone stepping on his hand and being shot. The intake note from the physiotherapy clinic shows that the applicant sought treatment for a numb foot and sore ankle caused by the accident. He also reported a previous back injury, but the subsequent notes show that treatment was focused on the foot and ankle.

44I find that the CNRs of the physiotherapy clinic concur with the opinion and recommendations of Dr. Rabinovitch. The applicant’s foot and ankle pain and stiffness had improved greatly by the date of the treatment plan. Within a few weeks, even without regular treatment, the applicant had improved further. The physiotherapist and Dr. Rabinovitch both recommended the applicant continue self-directed exercises to increase strength in his ankle.

45I give little weight to the CNRs of Dr. Giftochristos, which show that the applicant reported continued numbness in his foot on March 6, 2023. Dr. Giftochristos referred the applicant to a neurologist as a result. While the neurologist opined that the applicant’s symptoms were musculoskeletal in etiology, rather than neurological, neither Dr. Giftochristos nor the neurologist, Dr. Abdul Shaikh, recommended ongoing physiotherapy as a potential treatment for the applicant’s foot numbness.

46As a result, I find that the applicant has not proven, on a balance of probabilities, that the disputed portion of the treatment plan is reasonable and necessary. The applicant is not entitled to the outstanding amount of the treatment plan dated April 6, 2023.

Interest

47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the treatment plan for occupational therapy services dated September 21, 2022, the treatment plan for an occupational therapy assessment dated August 22, 2022 and the partially approved treatment plan for psychological services dated June 8, 2023.

Award

48The 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. 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.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

49The applicant did not direct me to any evidence of unreasonable conduct on the part of the respondent. Therefore, I find that the applicant has not proven, on a balance of probabilities, that the respondent is liable to pay an award under s. 10 of Reg. 664.

ORDER

50I find that:

i. The applicant is not entitled to an NEB from July 29, 2022 to date and ongoing;

ii. The applicant is entitled to $2,595.02 for occupational therapy services, proposed in a treatment plan dated September 21, 2022, plus interest;

iii. The applicant is entitled to $1,829.92 for an occupational therapy assessment, proposed in a treatment plan dated August 22, 2022, plus interest;

iv. The applicant is entitled to $896.23 for a psychological assessment, proposed in the partially approved treatment plan dated February 14, 2023, plus interest;

v. The applicant is not entitled to $720.00 for physiotherapy services, proposed in a partially approved treatment plan dated April 6, 2023;

vi. The applicant is entitled to $1,071.29 for psychological services, proposed in a partially approved treatment plan dated June 8, 2023, plus interest; and

vii. The respondent is not liable to pay an award under s. 10 of Reg. 664.