Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-014268/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:
Maria Paiva
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Rebecca Nelson, Counsel
For the Respondent: Nabila Majidzaeh, Counsel
HEARD:
OVERVIEW
1Maria Paiva, the applicant, was involved in an automobile accident on December 15, 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 the respondent, Aviva Insurance Company, 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 $3,837.20 for other assistive devices, proposed by RMI in a treatment plan, submitted August 17, 2022?
ii. Is the applicant entitled to $1,668.78 for occupational therapy services, proposed by RMI in a treatment plan submitted January 12, 2024?
iii. Is the applicant entitled to $11,300.00 for a Catastrophic (“CAT”) assessment, proposed by Omega Medical, in a treatment plan, submitted August 15, 2023?
iv. Is the applicant entitled to $1,635.39 for hospital services, proposed by Hospital Internacional dos Acores, in an Expense Form (“OCF-6”) submitted December 6, 2022?
v. Is the applicant entitled to attendant care benefits in the amount of $10,239.36 per month from August 20, 2022, to date and ongoing?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is entitled to the treatment plan for other assistive devices, submitted August 17, 2022, and the treatment plan for occupational therapy services, submitted January 12, 2024, plus interest.
4I find that the applicant is not entitled to the treatment plan for a CAT assessment dated August 15, 2023, or the OCF-6 for hospital services submitted December 6, 2022.
5I find that the applicant is entitled to attendant care benefits in the amount of $3,000.00 per month from August 20, 2022, to date and ongoing, plus interest.
PROCEDURAL ISSUE
6I find that the respondent may rely on the pre-accident records of Dr. Tommy Hong, family physician, and Dr. Azar Bahrami, rheumatologist, and its submissions which reference these notes.
7The applicant in her reply submissions submits that the medical records of Dr. Hong and Dr. Bahrami, dated prior to December 25, 2019, should be struck from the evidence. She submits that they are of limited probative value because they are from over one year pre-accident. The applicant submits that the records from 2018 and 2019 do not speak to her functioning at the time of the accident. She further submits that paragraph 8, 9, 11, 12, 16, 18, 20, 26, 28, 30, 35, 36 and 39 of the respondent’s submissions which rely upon these notes, should be struck.
8The respondent did not make any submissions on this issue because it had already provided its submissions.
9I deny the applicant’s request to strike from the evidence, the pre-accident medical records of Dr. Hong and Dr. Baharami, and the respondent’s submissions which rely upon these notes. While the applicant submits that these records do not speak to her functioning at the time of the accident, the applicant has not identified any specific prejudice arising from their consideration. In addition, as this argument was only raised in the applicant’s reply submissions, the respondent has not been afforded the opportunity to make submissions on how it will suffer any prejudice if the evidence and submissions are not considered. Therefore, I find that striking the evidence and related respondent’s submissions would be a breach of procedural fairness and cause significant prejudice to the respondent.
ANALYSIS
Were the applicant’s injuries caused by the December 2020 accident?
10Before I address the substantive issues in dispute, I will address the issue of causation which the applicant and the respondent both submit is a key question in dispute.
11I find that the accident was a necessary cause of the applicant’s injuries.
12The appropriate test to determine causation in accident benefits cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (“Sabadash”). To satisfy the test, the applicant must prove on a balance of probabilities that “but for” the accident, she would not have suffered the physical and psychological impairments which form the basis of her application for the disputed benefits. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability, and further, that the accident need only be a necessary cause, and not the only cause, of the impairment.
13The applicant submits that the main issue is causation which is a factual determination. She states that neither pre-existing nor subsequent health issues are determinative, as the accident does not need to be the sole cause of the impairments, only a necessary one. She further submits that an aggravation of prior health issues may establish causation. She argues that the evidence clearly establishes an immediate, severe deterioration in her health and functioning due to the accident.
14The applicant submits that she had numerous health issues pre-accident, although she was independent with all activities of daily living (“ADL’s”) and instrumental ADL’s (“iADL’s”). She submits that she injured her neck, chest, right shoulder, right arm, right knee, right ankle, upper and lower back, and hip in the subject accident. She also reports that her depression increased in severity as a result of the accident. She reported an immediate and severe increase in pain with a corresponding deterioration in her functional abilities, which are recorded in the medical records and assessments. She states that while she has fallen many times post-accident, this is largely due to her to accident-related mobility issues, and she claims that she did not sustain any serious impairments from these falls. She also submits that she has unrelated post-accident health issues. Finally, the applicant submits that her physical and psychological impairments started immediately after the accident and have continued in an unbroken chain. She submits that she never returned to her pre-accident baseline.
15The respondent submits that the applicant had multiple chronic medical issues pre-accident including a long-standing history of severe back pain, knee pain, ankle pain, pelvis pain, hip pain, shoulder pain and depression. It claims that the applicant and the occupational therapist, Stacy Bergman, downplay her severe and chronic knee and ankle issues, which consistently made her unable to walk and perform her activities of daily living pre-accident. The respondent further submits that the applicant fell often pre-accident which caused a significant increase in impairment. The respondent argues that the applicant’s need for attendant care and occupational therapy services are not as a direct result of the subject accident.
16In analyzing the parties’ arguments about causation and in comparing the applicant’s pre- and post-accident medical documentation, I find that the subject accident is not the only cause of the applicant’s impairments, but is a necessary cause, which is sufficient to meet the causation test as set out in Sabadash.
17The applicant’s post-accident complaints are consistently documented by multiple health practitioners following the accident, as set out below. It is clear from this medical documentation that the applicant continued to suffer ongoing functional impairments following the accident. While the pre-accident medical documentation confirms that she had impairments prior to the accident, this documentation does not support that she experienced the same level of functional impairment that she clearly suffered post-accident. Similarly, the applicant’s evidence is that the falls she sustained post-accident were related to her mobility issues that resulted from the accident. While the respondent denies that the cause of these falls is accident-related, in the absence of evidence to the contrary, I accept that the accident was a necessary cause of the applicant’s mobility issues as documented in the medical evidence after the accident.
18On review of the medical documentation, I find that the preponderance of the evidence supports a finding that the accident is a necessary cause of the increase in the severity of the applicant’s impairments post-accident. While I am aware of the respondent’s submissions on the timeline of the applicant’s complaints, on balance, I find that the applicant has consistently reported her symptoms and limitations post-accident and these complaints are reflected in the clinical notes and records (“CNRs”) of her treating family physicians, treatment providers, medical assessors and, critically, in the four reports of the occupational therapist, Ms. Bergman, all of whom attribute her symptoms and complaints to the accident in one way or another.
19In particular, Dr. Bahrami, rheumatologist, in his report dated June 16, 2022, notes that the applicant has, “advanced osteoarthritis in the right knee with severe pain and limitation of walking as well as chronic rotator cuff tendinopathy in the right shoulder and recurrent trochanteric bursitis since a car accident in December 2020”. In addition, the applicant’s psychiatrist Dr. Sunny Johnson, noted in his report dated April 18, 2022, that her depression has worsened since the accident due to her reduced functional abilities and her increased dependence on others. He further noted that unless her medical issues like pain are controlled, her prognosis for depression is poor.
20I further find Ms. Bergman’s four reports provide a comprehensive assessment of the applicant’s functional limitations and needs. I find these reports, combined with the applicant’s self-reporting of worsening complaints, are persuasive on the question of causation.
21I give little weight to the s. 44 Multidisciplinary Report of Dr. Michael Hanna, physician, and Jag Dhirayain, occupational therapist, dated May 4, 2021, because I find the assessors did not properly assess the applicant’s impairments and failed to address her post-accident functional limitations. Dr. Hanna notes that the clinical documentation provided at the time of his assessment is scarce and therefore he relied on the applicant’s self-reporting and his physical examination. Dr. Hanna notes the applicant’s pre-accident ADLs in detail and also notes the functional limitations she experiences post-accident. However, his finding is that she only suffered temporary soft tissue impairments affecting her neck and back as a result of the accident. There is no discussion of her knee and shoulder complaints or mobility issues, except to state that she uses a walker. He further states that based on his physical examination and the applicant’s self-report, her soft tissue injuries do not explain her current level of reported impaired function. Therefore, while he acknowledges the applicant’s impaired function, he provided no analysis. Mr. Dhirayain references the report of Dr. Hanna when making his conclusions and relies on his conclusions as the basis of his own report. In addition, despite noting functional limitations, Mr. Dhirayain concluded that attendant care is unnecessary, referencing Dr. Hannah’s findings, which were limited to strain and sprain injuries to the neck and back.
22I give little weight to Dr. Hanna’s s. 44 report dated September 12, 2022. While Dr. Hanna received the pre- and post-accident records, and there is a summary of these records within the report, there is no analysis of these records, and no comments are made on the applicant’s functional limitations or abilities either pre- or post-accident. Dr. Hanna’s conclusions are essentially identical to his previous report dated May 4, 2021. The only new conclusion in this report is that the applicant has received sufficient facility-based rehabilitation and since it has been two years since the accident, no further improvements are anticipated. There is no discussion about causation or whether the applicant’s current complaints are as a result of the subject accident, or not.
23I find that the weight of the evidence favours the applicant’s reports and records, as I find these reports present compelling evidence that her symptoms increased as a result of and following the accident. Further, I find that the respondent’s position is largely based on speculation and lacks support in the medical documentation. While other factors, including pre-existing impairments exist, I am ultimately persuaded that the applicant has established on a balance of probabilities that she would not have suffered the physical and psychological impairments underlying her claim but for the accident.
Are the treatment plans reasonable and necessary?
24To receive payment for medical and rehabilitation benefits under sections 15 and 16 of the Schedule, the applicant has the onus of proving 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.
a. The applicant is entitled to the treatment plan for other assistive devices
25I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plan for other assistive devices.
26The applicant claims entitlement to $3,837.20 for other assistive devices, proposed by Ms. Bergman of RMI, in a treatment plan, submitted August 17, 2022. The treatment plan recommends the following:
Training, motor and living skills – quantity 6.00 Provider travel time, provider to treatment – quantity 1.50 x 2 Planning, service – quantity 4.00 Documentation, support activity – quantity 3.00 Samsung Galaxy Tablet Samsung Book Cover Case Rogers Ignite 50u Internet service – 24 Document support activity
27The applicant submits that a tablet and internet service is recommended by Dr. Valda Lopo, psychologist, in his report dated July 20, 2022, for virtual counselling sessions, access to relaxation applications, and to facilitate contact with friends and family to reduce isolation. The treatment plan in dispute provides for this recommendation.
28The respondent submits that the applicant has failed to meet her onus and adduce any evidence contemporaneous to the treatment plans recommending occupational therapy services. It further relies upon the s. 44 report of Dr. Hanna, dated September 12, 2022, which determined that the treatment plan was not reasonable and necessary.
29Upon review of the treatment plan in dispute, as well as the report of Dr. Lopo, I find that the applicant has provided subjective evidence and objective evidence from a qualified medical practitioner, that she continued to suffer ongoing psychological issues as a result of the accident and required ongoing treatment of her injuries. I find that the report of Dr. Lopo sets out the rationale for the recommendation of the tablet, which is to complete virtual counselling sessions, access relaxation applications and facilitate social contact. I find that the Progress Report of Ms. Bergman, dated August 4, 2022, further sets out the psychological issues of the applicant and that she is feeling more isolated at home. A recommendation was also made in this report for an iPad and cover.
30I therefore do not accept the respondent’s submission that the applicant has not provided any evidence contemporaneous to the treatment plan in dispute, as both the reports of Dr. Lopo and Ms. Bergman were prepared within a month of the treatment plan being submitted.
31In addition, I do not give weight to the s. 44 report of Dr. Hanna relied on by the respondent. Upon review of his report, the items and services recommended in the treatment plan are not even referenced. At no point in his opinion does he discuss the particular recommendations in the treatment plan. His conclusion is simply that the applicant had sufficient facility- based rehabilitation and as it has been nearly two years since the accident, further improvements are not anticipated. Further as Dr. Hanna is not a psychologist, I do not find that his opinion with respect to the applicant’s physical impairments has any bearing on the psychological basis for the treatment plan.
32For the reasons set out above, I find that the applicant has met her onus of proving on a balance of probabilities that the treatment plan for other assistive devices is reasonable and necessary as a result of the accident.
b. The applicant is entitled to the treatment plan for occupational therapy services
33I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plan for a follow-up occupational therapy assessment.
34The applicant claims entitlement to $1,668.78 for a follow-up occupational therapy assessment, proposed by Ms. Bergman, in a treatment plan submitted January 12, 2024. The goals of the treatment plan include assessing the effect of impairments on self-care and other daily living activities and determining the need for equipment, supports or services to enable optimal safety, comfort and independence in self-care and daily activities.
35The applicant submits that the respondent refused funding for the January 2024 occupational therapy assessment. She submits that the previous assessment took place over 16 months prior in August 2022, at which time the applicant documented severe functional limitations and safety issues due to impaired mobility, decreased strength and pain. The applicant submits that it was more than reasonable to have a follow-up occupational therapy assessment in January 2024, to assess her current occupational and attendant care needs, and to provide further services.
36The respondent relies upon the s. 44 OT In-Home assessment report of Vanita Tandon, occupational therapist, dated April 15, 2024, which found that the treatment plan was not reasonable and necessary as it relates to her accident-related impairments. The respondent submits that the applicant was hospitalized in November 2022 due to an infection and required surgeries, and that this plan was submitted shortly thereafter. It claims that the reassessment and occupational therapy services were not needed as a result of the injuries sustained in the accident, but as a result of the infection and surgeries.
37I find that based on the medical evidence provided by the applicant outlining her physical and psychological impairments, including the records of her family physician, rheumatologist, psychologist and treating physicians, that it was reasonable for her to undergo an updated occupational therapy assessment, as recommended in the treatment plan in dispute. The goals set out in the treatment plan of assessing the applicant’s functional abilities and determining ongoing support and services, would be met by this updated assessment.
38I do not agree with the respondent’s submissions that this treatment plan was submitted shortly after the applicant’s hospitalization in November 2022 and subsequent surgeries. This treatment plan was not submitted until January 12, 2024, over a year after the hospitalization.
39Upon review of the report of Ms. Tandon, she noted that the applicant began receiving personal support worker (“PSW”) services one hour a day through LIHN. She noted that the PSW assists with certain grooming, haircare, dressing/undressing and showering tasks. The PSW or family members assist with cleaning, cooking, laundry, shopping. I further find that Ms. Tandon focuses on the applicant’s hospitalization in November 2022 and relies upon the report of Dr. Hanna dated April 6, 2022. She concludes that if additional documentation regarding her hospitalization in November 2022 and an updated medical opinion regarding causation as it relates to this admission is made available, her opinions may be subject to change.
40I find that Ms. Tandon sets out the services the applicant receives from the PSW and her family members, which clearly indicates that the applicant continues to have functional impairments in 2024. This supports the applicant’s submissions that an updated occupational therapy assessment was required to assess her current functional abilities and limitations. I further find that while Ms. Tandon questions causation, I have already found that the applicant has met the test. Therefore, I do not give weight to the report of Ms. Tandon that a reassessment was not reasonable and necessary as a result of the injuries sustained in the accident.
41For the reasons set out above, I find that the applicant has met her onus of proving on a balance of probabilities that the treatment plan for an occupational therapy assessment is reasonable and necessary as a result of the accident.
c. The applicant is not entitled to the treatment plan for a CAT assessment
42I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for a CAT assessment.
43The CCRO lists the following issue in dispute: “Is the applicant entitled to $11,300.00 for a CAT assessment, proposed by Omega Medical, in a treatment plan, submitted August 15, 2023?”
44Upon review of the applicant’s submissions, this issue was not raised or referred to. Therefore, I find that the applicant has not met her onus of proving on a balance of probabilities that the treatment plan for a CAT assessment is reasonable and necessary as a result of the accident.
d. Is the applicant entitled to hospital expenses set out in the OCF-6 submitted December 6, 2022?
45I find that the applicant has not proven on a balance of probabilities that she is entitled to the OCF-6 for hospital expenses.
46The applicant claims entitlement to $1,635.39 for hospital expenses incurred in Portugal, as set out in the OCF-6, dated November 7, 2022, and submitted on December 6, 2022, as follows:
i. September 22, 2022 – Invoice Hospital Internacional dos Acores for x-rays - $382.83 ii. September 22, 2022 – Invoice for consultation with ortopedia and blood labs - $443.80 iii. October 1, 2022 – Invoice for medical supplies for visit - $808.76
47The applicant submits that in September 2022, she and her husband went home to Portugal for a visit. While there, she fell due to her impaired mobility and struck her head. She attended the hospital for treatment of her head injury and knee. She claims that these expenses are a direct result of her accident-related injuries.
48The respondent submits that it denied the expenses and requested supporting medical documentation that the services were as a result of the subject accident. The applicant provided limited information about the hospital expenses in her submissions to the Tribunal, including a list of the charges. The respondent submits that it is not liable to pay for a hospital visit while on vacation, without any evidence that it was a result of the injuries sustained in the accident.
49I find that with respect to the respondent’s denial letter, dated December 6, 2022, it requested documentation to support that the expenses were provided as a result of the motor vehicle accident. I find on the evidence provided, that the applicant did not provide the respondent with any further particulars in response to this letter until she filed her submissions. I find upon review of the applicant’s submissions, that she has not provided sufficient evidence to support what happened in the incident in Portugal. While the applicant submits that she fell due to her impaired mobility, without further particulars of the incident, I cannot conclude that these expenses are reasonable and necessary as a result of the accident.
50For the reasons set out above, I find that the applicant has not met her onus of proving on a balance of probabilities that the OCF-6 for hospital expenses is reasonable and necessary as a result of the accident.
e. Is the applicant entitled to attendant care benefits?
51I find the applicant has demonstrated that she is entitled to attendant care benefits (“ACBs”).
52Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident, for services provided by an aide or attendant. A Form 1 prepared by an occupational therapist sets out the services and amount of care an individual requires as well as the monthly amount payable. The maximum payable to an insured who has not sustained a catastrophic impairment is $3,000.00 per month. Pursuant to s. 20(1)(a) of the Schedule, the availability of attendant care benefits, if found reasonable and necessary, is limited to 260 weeks from the date of the accident for an insured not designated catastrophically impaired.
53A Form 1 was submitted by Ms. Bergman dated February 10, 2021, recommending a monthly attendant care benefit of $10,267.52. By correspondence dated April 19, 2021, the respondent advised that it was unable to determine whether the recommendations for attendant care are reasonable and necessary for the applicant’s injuries. A section 44 assessment was arranged. Following the assessment, the respondent determined that the applicant no longer required ACBs, and the stoppage was made effective June 30, 2021. On July 29, 2022, a new Form 1 completed by Ms. Bergman was submitted in the amount of $10,239.36.
54The applicant submits that she is entitled to an ACB in the amount of $10,239.36 per month from August 20, 2022 to date and ongoing, to reduce the effects of her disability and enhance her safety. The applicant relies on the in-home occupational therapy assessment prepared by Ms. Bergman, dated August 4, 2022, which confirmed little change in her symptoms and impairments since the previous assessment. The report notes that her balance had deteriorated, increasing her mobility needs, and that her depression had increased. The applicant submits that this assessment provided a detailed analysis of the impact of the applicant’s injuries on her functional abilities. The Form 1, dated July 29, 2022, indicates that she required assistance with dressing/undressing, grooming, feeding, mobility, hygiene, responding in an emergency, administering, and controlling medications, and bathing. The applicant submits that Ms. Bergman’s last assessment in January 2024, supports that her mobility had continued to deteriorate and that her limitations and needs remain unchanged.
55The respondent relies upon the s. 44 reports of Dr. Hanna and Mr. Dihayain, occupational therapist, dated May 4, 2021, in support of its denial of attendant care benefits. It submits that Dr. Hanna diagnosed the applicant with soft tissue injuries for which attendant care services are not indicated. He noted that she was able to transfer from chair to floor to examination table with no difficulty and she did not have any problems with her balance. The respondent further submits that aside from Ms. Bergman who authored the Form 1, there is no medical evidence supporting ACBs. The respondent argues that Ms. Bergman downplays the applicant’s pre-existing medical history and the functional limitations that arose from her pre-accident medical history.
56The only issue before me is whether attendant care benefits are reasonable and necessary as a result of the impairments sustained by the applicant in the accident. I find that neither party has addressed whether the applicant has incurred the ACBs and therefore I make no finding on this issue, except to note that section 19 only requires the insurer to pay if the services were incurred.
57I find that the medical evidence provided by the applicant supports that she has functional limitations because of the physical impairments she sustained in the accident, such as her pain complaints and her balance and mobility issues. Further, I find these functional limitations would interfere with her ability to carry out her self-care and activities of daily living such that she requires ACBs. Moreover, I find the reports by Ms. Bergman comprehensive and thorough in their analysis of the applicant’s functional limitations. I find that the applicant has consistently reported her symptoms and limitations post-accident and these complaints are reflected in the CNRs of her treating family physicians, treatment providers, medical assessors and, critically, in the four reports of the occupational therapist, Ms. Bergman.
58I find that the crux of the respondent’s argument is causation, which I have already found has been established in the applicant’s favour. I find the fact that the applicant had pre-existing impairments does not detract from the analysis of the applicant’s functional impairments post-accident. In addition, with respect to the respondent’s reliance on the s. 44 reports of Dr. Hanna and Mr. Dihayain, I have already attributed little weight to these reports due to their lack of thoroughness and analysis of the applicant’s functional abilities which is necessary to address whether she is entitled to ACBs.
59For the reasons set out above, I find that the applicant has established on a balance of probabilities that she is entitled to ACBs from August 20, 2022 to date and ongoing. However, she is only entitled to receive these benefits, upon proof that the expenses were incurred. I find that as of the date of this hearing, the applicant has not made a claim for catastrophic impairment and an OCF-19 has not been submitted. Therefore, her entitlement for the period in dispute at this time is capped at $3,000.00 per month, pending evidence that ACBs were incurred.
Interest
60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to the treatment plans submitted August 17, 2022 and January 12, 2024, as well as ACBs, interest is payable in accordance with s. 51 of the Schedule.
ORDER
61For the reasons set out above, I find that:
i. The applicant is entitled to the treatment plan for other assistive devices, submitted August 17, 2022, plus interest;
ii. The applicant is entitled to the treatment plan for occupational therapy services, submitted January 12, 2024, plus interest;
iii. The applicant is not entitled to the treatment plan for a CAT assessment, submitted August 15, 2023;
iv. The applicant is not entitled to the OCF-6 for hospital expenses submitted December 6, 2022; and
v. The applicant is entitled to attendant care benefits in the amount of $3,000.00 per month from August 20, 2022, to date and ongoing, plus interest; and
Released: August 8, 2025
Melanie Malach
Adjudicator