Licence Appeal Tribunal File Number: 23-013008/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:
Vevian Badawi
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Bernard Trottier
APPEARANCES:
For the Applicant:
Terio Francis, Counsel
For the Respondent:
Geoffrey Keating, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Vevian Badawi, the applicant, was involved in an automobile accident on October 22, 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 Aviva Insurance Canada, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to income replacement benefits in the amount of $281.54 per week from May 12, 2024 to date and ongoing?
ii. Is the applicant entitled to $2,023.03 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan/OCF-18 (“plan”) dated October 3, 2023?
iii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Elite Specialist Group Inc. in a plan dated May 5, 2023?
iv. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by Elite Specialist Group Inc. in a plan dated May 5, 2023?
v. Is the applicant entitled to $3,183.14 for a chiropractic and massage therapy services, proposed by Mackenzie Medical Rehabilitation Centre in a plan dated May 6, 2023?
vi. Is the applicant entitled to $4,257.50 for psychological services, proposed by Elite Specialist Group Inc. in a plan dated September 25, 2023?
vii. Is the applicant entitled to $1,124.89 ($2,298.11 less $1,173.22 approved) for a driving reintegration assessment, proposed by Pinnacle Health Network and Assessments in a plan dated November 24, 2023?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant does not meet the “complete inability” test and is therefore not entitled to post-104-week income replacement benefits (“IRBs”), from May 12, 2024 to date and ongoing.
4The applicant is entitled to a psychological assessment, per issue (iv) above.
5The applicant is entitled to the full amount for the driving reintegration assessment, per issue (vii) above.
6The applicant is not entitled to the other medical and rehabilitation benefits in dispute.
7The applicant is entitled to interest for the disputed psychological assessment and for the disputed line items of the driver reintegration assessment.
8The applicant is not entitled to interest for the other issues in dispute.
PROCEDURAL ISSUES
9On December 3, 2024, the applicant filed a Notice of Motion to preclude the respondent from including late-filed surveillance evidence in their submissions.
10The parties participated in a case conference on April 30, 2024. The Case Conference Report and Order (“CCRO”) dated May 3, 2024, included deadlines for the production of evidence ahead of the written hearing. The deadline for producing any evidence not previously disclosed was 60 days after the case conference, namely June 29, 2024. The respondent produced surveillance evidence on November 14, 2024, about 4.5 months after the June 29, 2024 deadline.
11In her Notice of Motion, the applicant submitted that the late filing of the surveillance evidence, 34 days before the applicant’s deadline for written submissions, has deprived her of the opportunity to respond to the case they must meet at the hearing. The applicant argues that admitting late-filed surveillance evidence would undermine procedural fairness, would be prejudicial to her case, and would be tantamount to a hearing by ambush. The applicant argued that the late filing deprives her of the time to respond meaningfully.
12The applicant submitted further that the respondent’s lack of adherence to the timelines established in the CCRO would effectively undermine the integrity of the hearing process.
13The respondent opposed the relief sought by the applicant. The respondent submitted that the surveillance was conducted on May 22, May 23 and June 6 of 2024. The respondent submitted that they changed counsel between the case conference and the hearing, and they thought that the previous counsel had submitted surveillance according to the timelines established in the CCRO. The respondent submitted that as soon as they recognized that surveillance had not been disclosed, due to inadvertence, they took immediate steps and produced the evidence. The respondent argued that the surveillance has probative value, and that excluding the evidence would be prejudicial to their case. They argued that the probative value of the evidence and potential prejudice to the respondent outweigh any potential prejudice to the applicant.
14The respondent submitted that the Tribunal must consider whether there is prejudice to either party in admitting or excluding the evidence, and whether the prejudice, if any, outweighs the probative value of the evidence. The respondent argued that 34 days was sufficient time for the applicant to review the surveillance evidence before the deadline for submissions and, therefore, there was little, if any, prejudice to the applicant. The respondent cited, particularly, a decision involving the same parties, Badawi v. Aviva General Insurance, 2024 CanLII 115392 (ON LAT) (“Badawi”), in which the applicant served new medical evidence in her submissions for the written hearing. In Badawi, the applicant argued that the respondent had 14 days to review the new evidence before its deadline for responsive submissions and, therefore, the evidence should be admitted. In that matter, the adjudicator found that, although the applicant did not comply with the timelines for production of evidence set out in the CCRO, the late-filed evidence did not impede the respondent’s ability to know the case to be met and to adequately respond to the issues in dispute. The adjudicator in Badawi denied the respondent’s motion to exclude the late-filed medical evidence.
15The respondent submitted that, unlike in Badawi, the surveillance evidence is not medical evidence that might require a review by medical experts. The respondent submitted that the surveillance depicts the applicant within her knowledge and recollection, and that the applicant has not demonstrated what rebuttal or expert opinion evidence the applicant would obtain had the surveillance been served earlier.
16I find that, although the respondent did not adhere to the timeline for production of evidence set out in the CCRO, there is little prejudice to the applicant because 34 days is sufficient time to respond. The applicant argued that 14 days was sufficient time for the respondent in Badawi, even though that was a case of new medical evidence being submitted. I am persuaded by the respondent’s argument that the surveillance evidence would be within the applicant’s knowledge, and that it is therefore not new information. While I am not bound by the ruling in Badawi, I find it instructive. If the applicant argued in Badawi that 14 days was sufficient time to respond to new evidence, it would be inconsistent for the applicant to argue now that 34 days is insufficient time to respond.
17I accept the respondent’s claim that the late filing was due to inadvertence and was not due to an attempt to create a procedural advantage. I find that there is potential prejudice to the respondent in excluding the surveillance evidence that outweighs any potential prejudice to the applicant, and it outweighs the need, in this case, for a strict adherence to the timelines established in the CCRO. I do not find, further, that the late filing was an attempt by the respondent to undermine the hearing process.
18For the reasons above, I deny the applicant’s motion to exclude the late-filed surveillance evidence.
ANALYSIS
The applicant is not eligible for post-104-week IRBs
19To receive payment for post-104-week IRBs under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
20I find that the applicant has failed to prove on a balance of probabilities that she suffered a complete inability, more than two years post-accident and as a result of the accident, to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. She is therefore not entitled to IRBs, under s. 6(2) of the Schedule, from May 12, 2024 to date and ongoing.
21The applicant submits that the applicant faces considerable obstacles in obtaining new employment, including psychological/cognitive difficulties, physical impairments, language barriers and the job market. The applicant submits, further, that these obstacles constrain the applicant’s ability to pursue job retraining. The applicant submits that the test for post-104-week IRBs is based on three factors identified in Burtch v. Aviva Insurance Company of Canada, 2009 ONCA 479 (“Burtch”), namely:
A suitable alternative occupation must be reasonably comparable to the insured's former job both in status and reward.
A job cannot be considered a suitable alternative if a substantial amount of upgrading is required.
While the primary focus in determining whether a job is a suitable alternative is on the insured's functional limitations, job market considerations are also relevant.
22The applicant is born in Sudan and emigrated to Canada in 2002. She has a high school diploma and has Level 7 (upper intermediate) proficiency in English as a second language. On the date of the accident, the applicant worked full-time as a driver with Uber and Uber Eats, transporting passengers, meals and groceries in the Greater Toronto Area.
23The applicant submits that her psychological and cognitive deficits include chronic fatigue, decision-making difficulties, and forgetfulness. She submits that her physical impairments include chronic pain in her neck, shoulders, lower back, knees and head.
24The applicant submits that she cannot return to her employment as an Uber driver, because of driving-related anxiety that includes nervousness, shaking, elevated body temperature, increased heart rate, sweating and exhaustion. The applicant submits that her psychological and physical deconditioning prevent her from assuming any other employment for which she is qualified, and that this deconditioning also prevents her from obtaining further education and training.
25The applicant submits that her psychological and physical limitations also prevent her from working in a non-driving role, such as a retail cashier. The applicant submits that a cashier job requires prolonged focus and physical stamina, including standing and walking, which she argues she is unable to do. The applicant submits, further, that her financial constraints prevent her from investing in education or training. Finally, per the factors described in Burtch, the applicant submits that her limited qualifications diminish her ability to obtain new employment in a labour market with a 6.5% unemployment rate.
26In support of her argument of eligibility for post-104-week IRBs, the applicant relies on the opinions of Ms. Sandra Ramnaraine, psychotherapist and Dr. Jacqueline Brunshaw, psychologist, in their psychological assessment report dated September 25, 2023. I note that the applicant refers to the report of Dr. Bradshaw in her submissions, but that it is indicated that Ms. Ramnaraine was under the supervision of Dr. Bradshaw. For brevity, I will refer to the report as that of Ms. Ramnaraine.
27In her report, Ms. Ramnaraine opines that the applicant has the following Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”) diagnoses:
Adjustment disorder with mixed anxiety and depressed mood
Specific phobia, situational type (vehicular: driver, passenger, pedestrian), moderate-to-severe level of severity
28Ms. Ramnaraine opines in her report that the applicant suffers a substantial inability to perform her pre-accident employment due to her difficulties with concentration, memory and decision-making abilities.
29The applicant also relies on the opinion of Dr. Stephen Brown, anesthesia and pain management specialist, in his report dated November 19, 2023. Dr. Brown diagnosed the applicant with the following:
Chronic pain syndrome
Chronic pain cervical spine (WAD 2, myofascial +/- mechanical - facet joints, degenerative disc disease, secondary hyperalgesia)
30Dr. Brown opines that the applicant’s impairments have affected her ability to perform the physical and cognitive tasks of working as an Uber driver. He opines, further, that her impairments will likely limit future job opportunities, hinder professional performance, affect motivation, reduce the amount of work-related experience she can accumulate, and negatively affect her future employability.
31Finally, the applicant directed me to the clinical notes and records (“CNRs”) of Kose Wong, physiotherapist of Lifemark Unionville Gate (“Lifemark”), dated January 13, 2021. Mr. Wong opines that the applicant’s “level of function is still very limited” and that she is unable to return to work as a food delivery driver due to the anxiety and fear she experiences while sitting in a vehicle.
32The respondent relies on the insurer’s examination (“IE”) multidisciplinary assessment report dated April 9, 2024 in its termination of post-104-week IRBs effective May 12, 2024. The report is comprised of four assessments:
Functional abilities evaluation, by Dennis Polygenis, physiotherapist, dated February 23, 2024.
Vocational assessment and transferable skills analysis, by Teri Pereira, vocational consultant, dated March 1, 2024.
Physical medicine and rehabilitation specialist assessment, by Dr. Alborz Oshidari, MD, dated March 6, 2024.
Psychology assessment, by Dr. Fabio Salerno, psychologist, dated March 25, 2024
33Mr. Polygenis concluded that, based on the results his functional testing of the applicant, she demonstrated light to medium physical demand characteristic functional abilities.
34Ms. Pereira concluded that the applicant was capable of undertaking a number of different work roles, including that of a retail cashier.
35Dr. Oshidari concluded that the applicant’s accident-related injuries were limited to soft tissues that would have healed by the time of his assessment, almost 2.5 years post-accident. Dr. Ohsidari was unable to identify any physical or medical restrictions on the applicant’s ability to return to work.
36Dr. Salerno concluded that the applicant suffered from vehicular anxiety, identified as a DSM-5 diagnosis of “specific phobia, situational driving”. He concluded that while the applicant suffered from an inability to engage in any employment involving driving, she did not suffer from a complete inability to engage in occupations that did not involve driving, such as a cashier.
37The respondent argues that the IE assessments demonstrate that the applicant has not met the burden of proving, on a balance of probabilities, that she meets the “complete inability” test of eligibility for post-104-week IRBs. The respondent argues that the reports of Ms. Ramnaraine and Dr. Brown, and the CNRs of Mr. Wong, do not conclude that the applicant meets the test for post-104-week IRBs.
38Specifically, the respondent argues that Ms. Ramnaraine’s opinion is that the applicant suffers a substantial inability to perform her pre-accident employment, but does not conclude that the applicant is incapable of returning to any type of work, despite a referral question from the applicant asking whether she suffers a substantial/complete inability to resume any type of employment.
39Similarly, the respondent argues that Dr. Brown’s opinion is that the applicant is unable to return to her work as an Uber driver. The respondent submits that Dr. Brown does not conclude that the applicant meets the test for post-104-week IRBs, despite being asked the same referral question regarding any type of employment.
40In the same manner, the respondent submits that the CNRs of Mr. Wong only comment on the applicant’s ability to return to work as an Uber driver, and they do not comment on whether she meets the test for post-104-week IRBs.
41The respondent argues further that the surveillance evidence of May 23, 2023 and June 6, 2023 indicates that the applicant was working and, therefore, demonstrates that she does not meet the eligibility test for post-104-week IRBs. (Surveillance was also conducted on May 22, 2023, but the applicant was not observed emerging from her apartment. That day of surveillance is not relevant.) On the two days the applicant was observed, the applicant was driven to a business called Flashbox Shipping Company (“Flashbox”). She was observed pushing a large trolley with packages from the business to her vehicle and then proceeded to load the packages into the vehicle. The applicant was observed at Flashbox for about 3 hours on both days. On the first day (May 23), the investigators lost sight of the applicant after she was driven from Flashbox with the packages in her vehicle. On the second day (June 6), the applicant was observed being driven for about an hour, delivering packages to 9 private residences, before the investigators lost sight of her.
42I find that the applicant has not demonstrated that she is unable to perform any type of employment for which she is reasonably suited by education, training or experience. I prefer the opinions of Dr. Salerno and Dr. Oshidari over those of Ms. Ramnaraine, Dr. Brown and Mr. Wong, because Dr. Salerno and Dr. Oshidari address the specific question of whether the applicant was capable of any employment, per the requirement for eligibility for post-104-week IRBs. I note that Ms. Ramnaraine and Dr. Brown were both asked the referral question of whether the applicant suffered a substantial/complete inability to resume any type of employment; both provided answers regarding her pre-accident employment as an Uber driver but did not comment on whether she was capable of any employment.
43I find further that the surveillance evidence corroborates the opinions of the IE assessors, in that the applicant was observed performing work activities that did not involve driving.
44Regarding the requirement for training described in Burtch, the respondent argues that it is not a relevant factor in the present case. In Burtch, the applicant needed to complete a $4,250 truck-driving training course to work in the proposed alternative employment. The types of employment proposed by the respondent’s assessors, in this case, involve on-the-job training and do not impose a significant barrier to alternative employment.
45Regarding job market considerations, I find that the decision in Burtch only comments on the specifics of the long-haul trucking job market. The applicant did not direct me to any part of the Schedule or to any authorities where the general unemployment rate would be a factor in determining an applicant’s eligibility for post-104-week IRBs under s. 6(2).
46For the reasons above, I find that the applicant has not demonstrated, on a balance of probabilities that she suffered a complete inability, more than two years post-accident and as a result of the accident, to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. She is therefore not entitled to IRBs after May 12, 2024.
The applicant is not entitled to any further chiropractic and massage therapy services
47I find that the applicant has failed to prove on a balance of probabilities that she is entitled to further chiropractic and massage therapy services beyond those already paid.
48To 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. This legal test of eligibility applies to this treatment plan, as well as to all of the disputed treatment and assessment plans that follow.
49The applicant was removed from the confines of the Minor Injury Guideline (the “MIG”) on December 13, 2023, based on the psychological assessment report of Dr. Salerno, who opined in his report dated July 19, 2023, that the applicant suffered a specific phobia with respect to driving and therefore her psychological injuries were non-minor. Conversely, Dr. Oshidari opined, in his report dated July 24, 2023, that the applicant’s physical injuries fit under the definition of a minor injury and could be treated within the MIG.
50The applicant submits that the two treatment plans/OCF-18s (“plans”) described in issue (v) and (ii) are reasonable and necessary as a result of the accident. The disputed plans were submitted by Mackenzie Medical Rehabilitation Clinic as follows:
$3,183 14 for chiropractic services, dated May 6, 2023 – issue (v)
$2,023.03 for chiropractic and massage therapy services, dated October 3, 2023 – issue (ii)
51The applicant submits that these plans indicate that she is experiencing tension-type headaches, radiculopathy, bursitis in the knee, cervical disc disorder, sprain and strain of the cervical/thoracic/lumbar spine, shoulder joint and anterior cruciate ligament of the knee. The applicant directed me to the CNRs of the applicant’s family physician, Dr. Sherif Kodsi, who recommended from April 27, 2023 to February 22, 2024 that the applicant continue with physiotherapy treatment. The applicant argues that these CNRs corroborate the need for the proposed treatment plans.
52In addition, the applicant directed me to Dr. Brown’s chronic pain assessment report, where he indicated that the applicant would benefit from “interventions for chronic pain including physiotherapy, structured/supervised exercise, and behavioural therapy.”
53The applicant submits that the reasonableness and necessity of these plans is further corroborated by Ms. Ramnaraine when she opines, in her report, that although psychological counselling may help the applicant “improve her emotional and psychological state, her physical state continues to be a barrier to her recovery” and that “[a]s long as her physical condition, along with its pain and restrictions remain present, it is likely that Ms. Badawi will experience significant emotional distress”.
54The applicant submits that the respondent has not conducted any IEs related to issues (v) and (ii) and asks that I draw an adverse inference from this lack of examination by the respondent.
55The respondent submits that the disputed chiropractic and massage therapy plans are not reasonable and necessary. It argues that they were submitted over 1.5 years and almost 2 years post-accident, respectively, and that passive modality treatment would not provide meaningful benefit to the applicant at that point in her recovery.
56The respondent submits that Dr. Brown, in his report, does not recommend passive chiropractic or massage therapy. The respondent directed me to Dr. Brown’s report and argues that Dr. Brown recommends other therapies, including physiotherapy, exercise, medication and diagnostic/therapeutic nerve block/injections to assist in pain management, along with psychiatric/psychological treatment in the presence of the applicant’s “abnormal pain beliefs”.
57The respondent submits, citing Seth Amoa-Williams v. Allstate Insurance Company of Canada, 2000 ONFSCDRS 96, that pain relief measures should not encourage an inappropriate of indefinite dependency. The respondent submits further, citing Americo Alves v. Commercial Union Assurance Company, 1999 ONFSCDRS 86, that an injured person will have to provide evidence beyond their assertion that the treatment makes them “feel better”. The respondent argues that the applicant has not provided any medical documentation recommending ongoing chiropractic or massage therapy treatments after 2022. For these reasons, the respondent argues that the proposed plans cannot be found to be reasonable and necessary.
58I find that the CNRs of Dr. Kodsi are not persuasive regarding recommendations for chiropractic and massage therapy treatments. On March 14, 2022, about 5 months post-accident, Dr. Kodsi recommends “Massage therapy, neck and back exercises, Tylenol PRN [prescription]”. On 10 subsequent visits, between May 19, 2022 and February 22, 2024, Dr. Kodsi recommends “continue physiotherapy, neck and back exercises, Tylenol PRN”. While Dr. Kodsi continued to recommend the same treatment over a period of almost 2 years, there was no indication that the treatment was attaining the desired outcome of pain reduction.
59I find that Ms. Ramnaraine’s recommendation for some form of improvement to the applicant’s physical condition is non-specific, and it does not persuade me that the specific plans for chiropractic and massage therapy services are reasonable and necessary.
60I do not draw an adverse inference from the respondent’s lack of an IE related to the proposed chiropractic and massage therapy treatment plans. On July 10 and July 12, 2023, the respondent requested IEs by Dr. Salerno and Dr. Oshidari, related to the applicability of the MIG and whether the treatment plan for a chronic pain assessment, issue (iii), was reasonable and necessary. In their reports dated July 19 and July 24, 2023, respectively, they opined on the applicant’s psychological and physical complaints, and another IE for the chiropractic and massage therapy plans would be unnecessary.
61I find that the applicant has not demonstrated that the proposed treatment plans for chiropractic and massage therapy services are reasonable and necessary. The applicant has not presented evidence on how the goals of the treatment would be met to a reasonable degree. The applicant submits that the goal of the proposed treatment is primarily pain relief, but she has not demonstrated how the overall cost of achieving those goals is reasonable, given potentially less expensive alternatives, such as medication. The onus lies with the applicant to demonstrate that the proposed plans are reasonable and necessary. I find that the applicant has not met her burden.
62For the reasons above, I find on a balance of probabilities that the applicant is not entitled to the denied amounts of the disputed chiropractic and massage therapy treatment plans.
The applicant is not entitled to a chronic pain assessment
63I find that the applicant has not demonstrated that the proposed plan for a chronic pain assessment is reasonable and necessary.
64The OCF-18 for the chronic pain assessment in dispute is dated May 5, 2023 and was submitted by Dr. Richard Tutak, chiropractor, of Elite Specialist Group Inc. on May 16, 2023. The respondent requested an IE by Dr. Oshidari to determine whether the applicant was subject to the MIG, and whether the plan was reasonable and necessary. Dr. Oshidari conducted his assessment on July 12, 2023 and issued his report on July 24, 2023. The chronic pain assessment was denied in an explanation of benefits (“EOB”) letter from the respondent on August 1, 2023.
65Dr. Brown conducted a chronic pain assessment of the applicant on June 30, 2023, and he issued his report on November 19, 2023. In his report, Dr. Brown noted that the applicant complained mainly of neck and spine stiffness and pain. She reported restrictions in performing household chores and anything involving looking down or heavy lifting. He opined that the applicant “suffers from a complete inability to carry on a normal life.” He diagnosed the applicant as suffering from chronic pain syndrome, which the applicant argues is direct evidence of the need for the disputed assessment.
66The applicant submits that the necessity of a chronic pain assessment is further supported by the CNRs of Dr. Kodsi, who documented the applicant’s pain complaints over multiple visits between October 25, 2021 and February 22, 2024.
67The applicant submits that her chronic pain continues to impair her functioning and diminishes her quality of life. For these reasons, the applicant argues that the OCF-18 is reasonable and necessary, and that it should be paid by the respondent.
68The respondent submits that a review of the surveillance evidence demonstrates that the applicant is not suffering from a chronic pain condition. It argues the surveillance evidence demonstrates that the applicant does not suffer from loss of function and avoidance of physical activity due to pain. The respondent argues that the level of physical activity demonstrated in the surveillance, including entering and exiting a vehicle, pushing trolleys, loading packages and delivering them to homes, demonstrates that the applicant’s physical capacity is sufficient to pursue work and other needs. For these reasons, the respondent argues that the applicant does meet one of the main criteria for chronic pain, namely loss of function.
69I find that the applicant’s level of function, as demonstrated in the surveillance evidence, is inconsistent with the finding in Dr. Brown’s report that the applicant suffers from a complete inability to carry on a normal life. For this reason, I assign little weight to Dr. Brown’s diagnosis. I acknowledge that Dr. Brown assessed the applicant on June 30, 2023, and the surveillance was conducted in May and June of 2024; the applicant may have recovered somewhat in the intervening 10-11 months. But the observed level of function in 2024 would indicate to me, that if the applicant suffered from debilitating pain with loss of function in 2023, that she had regained her function by 2024 and therefore her pain was not chronic.
70I find that the CNRs of Dr. Kodsi do not demonstrate the need for a chronic pain assessment. In 10 visits from May 19, 2022 and February 22, 2024, Dr. Kodsi recommended physiotherapy, neck and back exercise, and Tylenol. The applicant did not direct me to any CNRs of Dr. Kodsi where he recommended stronger pain medication or other interventions associated with a medical diagnosis of chronic pain.
71I find that the surveillance evidence is consistent with the medical reports of Dr. Oshidari, in that the applicant’s physical injuries as a result of the accident were minor in nature, and that they would not result in the loss of function reported by the applicant to Dr. Brown.
72The onus lies with the applicant to demonstrate that the proposed plan for a chronic pain assessment is reasonable and necessary. I find that the applicant has not met her burden. For this reason, I find on a balance of probabilities that the applicant is not entitled to the denied chronic pain assessment.
The applicant is entitled to the proposed psychological assessment
73I find that the applicant has demonstrated that the proposed plan for a psychological assessment, issue (iv), is reasonable and necessary, and is therefore payable by the respondent.
74The applicant submits that she reported her vehicular anxiety to Dr. Kodsi throughout her visits with him from May 19, 2022 to February 22, 2024. As a result of these complaints, Dr. Kodsi referred the applicant for a psychiatric consultation with Dr. Stewart Dief, psychiatrist on May 19, 2022. In his consultation report, dated January 1, 2023, Dr. Dief indicates that the applicant suffered from symptoms of post-traumatic stress disorder (“PTSD”), by her self-reports, and depression. Dr. Dief referred the applicant back to Dr. Kodsi for a follow-up referral to a trauma therapist.
75The applicant submits, further, that she reported her ongoing psychological complaints to her treating physiotherapists her occupational therapist at Lifemark, where she emphasized her inability to work due to driving-related fear and anxiety.
76The applicant submits that the psychological assessment is reasonable and necessary, as confirmed by the diagnoses of Ms. Ramnaraine in her psychological assessment report dated September 25, 2023.
77The respondent relies on the psychological assessment of Dr. Salerno, in his MIG psychology assessment report dated July 19, 2023, where he was asked to assess the reasonableness and necessity of the proposed psychological assessment. In his report, Dr. Salerno opines that the applicant suffered from driving anxiety and that she did not experience any other psychoemotional difficulties as a result of the accident. Dr. Salerno recommended that the applicant be removed from the MIG, but that the proposed psychological assessment by Elite Specialist Group be denied, because she would be better served, in his opinion, by an in-vehicle driver desensitization program with a certified driving instructor.
78The respondent argues that the proposed psychological assessment is not reasonable and necessary given the partially approved driver re-integration assessment of issue (vii).
79I find that the applicant has demonstrated that the proposed treatment plan for a psychological assessment is reasonable and necessary. I am persuaded by the opinions of Dr. Kodsi and Dr. Dief that the proposed psychological assessment would assist the applicant in recovering from her psychological injuries as a result of the accident. I note that the OCF-18 for the disputed psychological assessment was submitted on May 18, 2023, over three months before Dr. Salerno’s report. I assign less weight to the opinion of Ms. Ramnaraine, who would be self-interested in having the already completed assessment paid for by the respondent.
80I find that the applicant is entitled to an opinion of a psychological assessor, apart from Dr. Salerno, to determine a course of treatment for her psychological issues due to the accident.
81For these reasons, I find that the proposed psychological assessment is reasonable and necessary, and payable by the respondent.
The applicant is not entitled to the proposed psychological services
82I find that the applicant has not demonstrated that the proposed plan for psychological services, issue (vi), is reasonable and necessary, and is therefore not payable by the respondent.
83The applicant relies on the opinion of Ms. Ramnaraine, who recommended 14 counselling sessions focused on alleviating the applicant’s fear and anxiety of being in or near vehicles. To that end, she recommended cognitive behavioural therapy (“CBT”) and mindfulness-based stress reduction.
84The applicant argues that, based on the opinion of Ms. Ramnaraine, the applicant’s psychological issues could not be addressed through a driving re-integration assessment alone.
85The respondent submits that the applicant’s submissions on the treatment plan for psychological services do not address the applicant’s specific psychological symptoms as a result of the accident. The respondent argues that the applicant suffered from pre-accident psychological issues, as claimed by the applicant in her written submissions, but that the applicant does not address the goals of the treatment.
86The respondent relies on the opinion of Dr. Salerno who recommended, in his report of July 19, 2023, that the applicant would be better served by an in-vehicle driver desensitization program with a certified driving instructor. He opined further that psychological counselling sessions would not achieve the therapeutic efficacy of an in-vehicle desensitization program, given the applicant’s specific psychological presentation.
87The respondent argues that the applicant has not met her burden of demonstrating the proposed psychological treatment is reasonable and necessary as a result of the accident.
88I find that Ms. Ramnaraine and Dr. Salerno are in general agreement that the applicant’s main psychological diagnosis, as a result of the accident, is driving anxiety. I prefer the opinion of Dr. Salerno over that of Ms. Ramnaraine regarding the appropriate course of treatment, because it addresses the applicant’s primary accident-related complaint. I find, also, that Ms. Ramnaraine does not distinguish clearly between the applicant’s pre-accident and post-accident psychological issues. I find that the applicant has not met her burden of demonstrating how the goals of the proposed psychological services would be met to a reasonable degree and that the overall costs of achieving them are reasonable compared to alternative therapies. For this reason, I find that the proposed treatment plan for CBT and mindfulness-based stress reduction is not reasonable and necessary.
The applicant is entitled to the disputed items of a driver reintegration assessment
89I find that the applicant has demonstrated that the disputed line items for a driver re-integration assessment, issue (vii), are reasonable and necessary, and they are therefore payable by the respondent.
90The disputed OCF-18 is comprised of the following line items:
| Item | Proposed Fee | Amount Approved |
|---|---|---|
| 1. Preparation, service. | $299.22 | $0 |
| 2. Assessment, mental health and addictions | $299.22 | $0 |
| 3. Claimant transportation to treatment | $149.61 | $149.61 |
| 4. Provider mileage to treatment | $38.40 | $38.40 |
| 5. Test, mental health and addictions | $374.03 | $0 |
| 6. Documentation, support activity | $673.25 | $673.25 |
| 7. Documentation, support activity for claim form | $200.00 | $200.00 |
| Total | $2,298.11 | $1,173.22 |
91The applicant submits that several psychological practitioners, including Dr. Svetlana Gabiduline, psychologist, Dr. Dief, Ms. Ramnaraine and Dr. Salerno all emphasized the need for a driver re-integration assessment. The applicant argues that the denial of $1,124.89 of the treatment plan for $2,298.11 undermines the assessment’s ability to create a targeted intervention plan to overcome her barriers to safe and independent driving. The applicant argues that the full amount of the treatment should be funded by the respondent.
92The respondent submits that the denied line items are duplicative of line items that were approved. Specifically, the applicant submits that:
Item 1, service preparation fees, is a duplication of Item 7.
Items 2 and 5, assessment proposed by Oleg Kaganovich, is a duplication of Item 6, the assessment proposed by Dr. Gabiduline.
93The respondent directed me to its EOB letter to the applicant dated November 3, 2023, where the respondent claims that $200 is the maximum fee for a review of file materials per the Financial Service Commission of Ontario: Professional Services Guideline (the “Guideline”). It argues that preparation and service fee for Item 1 is covered under Item 7 to the maximum allowed under the Guideline.
94In the same EOB letter, the respondent claimed that Item 2, the assessment, is a duplication of the same $200 fee for documentation, Item 7. Similarly, the EOB letter claims that Item 5 is also a duplication of Item 7.
95I disagree with the respondent’s submissions that the fee for a review of the applicant’s file, which is extensive, is a duplication of the documentation fee and support activity for preparation of the claim form. I find that file review and preparation of a claim form are separate activities.
96I disagree with the respondent’s submission that the separate evaluation by Mr. Kaganovich is a duplication of either the assessment of Dr. Gabiduline, or of the documentation fee of Item 7. I note that Dr. Salerno recommended that the applicant pursue an in-vehicle driver desensitization program with a certified driving instructor, and therefore a comprehensive driver re-integration assessment would normally include assessments by more than one professional.
97I find that the applicant has met her burden of demonstrating that the denied items for a driver reintegration assessment are reasonable and necessary. They are therefore payable by the respondent.
The applicant is entitled to interest
98The Tribunal may award benefits and interest to which an insured person is entitled pursuant to s. 51 of the Schedule. Interest is payable on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
99I find that the payment for psychological assessment should have been made when the OCF-18 was submitted to the respondent on May 18, 2023. I find that the applicant is entitled to interest at a rate of 2% per month, compounded monthly from May 18, 2023, on the amounts then owing.
100I find that the payment for the disputed amounts for the driver re-integration assessment should have been made when the OCF-18 was submitted to the respondent on November 29, 2023. I find that the applicant is entitled to interest at a rate of 2% per month, compounded monthly from November 29, 2023, on the amounts then owing.
Award
101Under 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.
102Both the applicant and the respondent advanced arguments on an award under s. 10 in their written submissions. However, the request for an award was not in the Tribunal application, nor was it added as an issue at the case conference of April 30, 2024. An award does not appear as an issue in dispute in the CCRO. I also have no record of any request for an amendment to the CCRO, to add this as an issue in dispute. Therefore, the issue of an award is not properly before the Tribunal, and I will make no ruling on it.
ORDER
103For the reasons above, I find that:
The applicant is not entitled to IRBs beyond those already paid.
The applicant is entitled to the disputed psychological assessment.
The applicant is entitled to the disputed line items of the proposed driving reintegration assessment.
The applicant is not entitled to the other medical and rehabilitation benefits in dispute.
The applicant is entitled to interest for the disputed psychological assessment and for the disputed line items of the driver reintegration assessment.
The applicant is not entitled to interest for the other issues in dispute.
Released: August 21, 2025
Bernard Trottier
Adjudicator
