Licence Appeal Tribunal File Number: 23-010971/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:
Alice Agulefo
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Terio Francis, Counsel
For the Respondent:
Alexander Dos Reis, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Alice Agulefo, the applicant, was involved in an automobile accident on January 7, 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, Allstate Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The preliminary issues to be decided are:
i. Is the applicant barred from proceeding to a hearing for the following benefits: non-earner benefit, chiropractic and massage services and attendant care assessment because the applicant failed to dispute their denial within the 2-year limitation period?
ii. Is the applicant barred from proceeding to a hearing for the following benefit: non-earner benefit and attendant care assessment because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
3The substantive issues to be decided in the hearing are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 7, 2020, to January 7, 2022?
ii. Is the applicant entitled to $3,969.50 for chiropractic and massage services proposed by Mackenzie Medical Rehab in a treatment plan/OCF-18 (“plan”) dated September 3, 2020?
iii. Is the applicant entitled to $2,229.50 for chiropractic and massage services proposed by Mackenzie Medical Rehab in a plan dated September 2, 2022?
iv. Is the applicant entitled to $1,417.70 for chiropractic and massage services proposed by Mackenzie Medical Rehab in a plan dated October 17, 2022?
v. Is the applicant entitled to $2,257.74 for a psychological assessment proposed by Holistic Mind and Body Wellness in a plan dated August 24, 2020?
vi. Is the applicant entitled to $2,200.00 for an attendant care assessment proposed by Princeton Hill Medical in a plan dated December 24, 2020?
vii. Is the applicant entitled to $25,280.00 for a catastrophic assessment proposed by Princeton Hill Medical in a plan dated November 29, 2022?
viii. Is the applicant entitled to $11,976.36 for chronic pain services proposed by Princeton Hill Medical in a plan dated August 8, 2023?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
4In her submissions, the applicant withdrew Issue 6 in the Case Conference Report Order (CCRO), which relates to a $200.00 fee for completing the Disability Certificate (OCF-3).
5The respondent clarified that the CCRO contains a typographical error regarding the issues in dispute. Specifically, Issue 7 (attendant care assessment) is the correct issue under consideration with respect to sections 55 and 56, rather than Issues 8 (catastrophic assessment) and 9 (chronic pain services). The applicant acknowledged and agreed with this clarification by referring to the Issue of attendant care assessment in her submissions.
RESULT
6For the reasons below, I find that:
The applicant is not barred from proceeding to this hearing for a determination on entitlement to a non-earner benefit (“NEB”), chiropractic and massage services and an attendant care assessment.
However, the applicant is not entitled to an NEB, the treatment plan for a psychological assessment or an award.
The applicant is entitled to the remaining treatment plans in dispute with interest pursuant to section 51 of the Schedule.
ANALYSIS
PRELIMINARY ISSUES
Limitation Period
7I find that the applicant is not barred from proceeding to this hearing for a determination on their entitlement to a NEB, chiropractic services, and an attendant care assessment.
8Under section 56 of the Schedule, an applicant must commence a proceeding within two years from the date the insurer refuses to pay the amount claimed.
9In this case, the applicant received the respondent's denial letters for NEB, chiropractic, and massage services, as well as the attendant care assessment, on June 28, 2021, April 21, 2021, and May 18, 2021, respectively. She filed her application with the Tribunal on September 14, 2023.
10The respondent contends that the applicant’s claims for NEB, chiropractic and massage services, and an attendant care assessment are statute-barred under section 56 of the Schedule because the application was submitted outside the two-year limitation period. Specifically, the application was filed approximately 2.5 months late for the non-earner benefit, 4.5 months late for the chiropractic and massage services, and 3.75 months late for the attendant care assessment.
11The applicant acknowledges the delay and does not dispute the adequacy of the respondent’s notices; instead, she requests an extension under Section 7 of the Licence Appeal Tribunal Act (“LAT Act”). The respondent opposes the request, arguing that the applicant has failed to satisfy any of the four factors required to justify an extension.
12Section 7 of the LAT Act affords the Tribunal statutory discretion to extend the limitation period prescribed by the Schedule if it is satisfied that there are reasonable grounds for granting such relief. In determining whether to grant an extension, the Tribunal examines four factors: i) the existence of a bona fide intention to appeal within the appeal period, ii) the length of the delay, iii) prejudice to the other party, and iv) the merits of the appeal. See Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act), 2012 ONSC 1492.
13Manuel directs a holistic analysis of the factors. No single factor is determinative. The factors are subject to a broader rule that an extension should not be granted unless the “justice of the case” requires it. It is the applicant’s onus to establish if there are reasonable grounds for granting an extension.
14I will now assess each of the Manuel factors in turn.
Bona Fide Intention to Appeal
15I find that the applicant has not demonstrated an intention to appeal the benefit denials within the applicable limitation period.
16The applicant submits that her consistent submission of OCF-18 treatment plans reflects her ongoing efforts to address her health needs and supports her intention to pursue benefits, despite not escalating the matter to the Tribunal within the prescribed timeframe.
17The respondent argues that the applicant’s submission of treatment plans does not amount to an intention to dispute the denials. It maintains that the applicant has not provided any evidence of a direct challenge to the denials or any communication indicating an intent to appeal within the limitation period.
18In reply, the applicant emphasizes that her continued submission of treatment plans for chiropractic and massage therapy, along with the respondent’s approval of some plans, indicates an ongoing dispute over entitlement. She also refers to medical records documenting a deterioration in her condition, increased care needs, and limitations in self-care. She submits that these factors support her intention to appeal the denials. Occupational therapy assessments further confirm her impairments, justifying an extension of the limitation period.
19The applicant relies on K.D. v. Certas Direct Insurance Company, 2022 CanLII 129859 (ON LAT), to support her position.
20Although it is not binding on me, I have considered the reasoning in K.D., but I find that it does not assist the applicant in this case. In K.D., the delay was attributed to a miscommunication between the applicant and her counsel, supported by evidence of significant mental health impairments. In contrast, the applicant in the present matter has not alleged any miscommunication or provided evidence of a disagreement with the denials during the limitation period.
21While the applicant has submitted medical documentation indicating a deterioration in her condition, this evidence alone does not establish an intention to appeal the denials. The medical records and treatment plans reflect her ongoing health concerns, but do not demonstrate that she took steps to dispute the denials or communicate an intent to appeal. The absence of any written or verbal indication of disagreement with the denials during the relevant period undermines her argument.
22Accordingly, I find that her submissions regarding her medical condition are not persuasive in establishing an intention to appeal within the limitation period.
The length of the Delay
23I find that the delays in filing the application were not significant. Each delay is only a few months beyond the prescribed limitation period, which, in my view, is relatively minor.
24The applicant argues that the delays in disputing the denials of NEB, chiropractic and massage services, and the attendant care assessment are reasonable given the extended duration of the dispute, which began in January 2020. She submits that consolidating multiple denials into a single application promotes efficiency and conserves Tribunal resources. In her reply, she further contends that the delay should be excused due to the unique circumstances of her case, including the impact of the COVID-19 pandemic, her age, and her physical and psychological limitations.
25The respondent submits that the delay is “moderately excessive,” and notes that the Tribunal has previously found even brief delays to be unreasonable in the absence of a compelling explanation.
26While the applicant did not provide detailed evidence explaining how these circumstances affected her ability to file within the prescribed time, I accept that the combination of factors she identified, particularly the prolonged nature of the dispute and the challenges posed by the pandemic, may have contributed to the delay.
27The NEB was delayed by 2.5 months. I consider this delay to be neutral, as it is not excessive for an NEB application during the pandemic period. The chiropractic and massage services are delayed by 4.5 months. I find that this delay is not excessive. The attendant care assessment is overdue by 3.75 months. I find that this delay is not significant either.
28The delays associated with each benefit are relatively short and not excessive, and I therefore consider them to be minor. This supports the applicant’s case. While her explanation did not include extensive detail, it nonetheless offered sufficient contextual information, such as timing and circumstances, to support the conclusion that the delays should not disqualify her application.
29Accordingly, I am satisfied that the delays in contesting the denials of NEB, chiropractic and massage services, and the attendant care assessment are not significant given the circumstances.
Prejudice to the Respondent
30I find that the delays in filing the application have not caused prejudice to the respondent, and this factor weighs in favour of the applicant.
31The applicant argues that the respondent has not suffered prejudice, as it has had ongoing access to her medical records and has been aware of her position throughout the claims process. She submits that she would suffer significant harm if prevented from pursuing claims related to NEB, medical rehabilitation (chiropractic and massage services), and attendant care assessment.
32The respondent argues that the delay has prejudiced its ability to arrange timely Insurer Examinations (IEs), particularly for the NEB and attendant care assessment, where causation is a key issue.
33In reply, the applicant refers to K.D., where the Tribunal emphasized that claims of prejudice must be supported by evidence. She argues that the respondent has not demonstrated any actual prejudice resulting from the delay and had ample opportunity to assess her condition and adjust the claim accordingly.
34The delay in disputing the NEB denial was approximately 2.5 months. As noted above, I do not find this delay to be significant, and I am not persuaded that it impaired the respondent’s ability to conduct an IE or otherwise respond to the claim. The respondent has not identified any specific evidence that is no longer available or any missed opportunity to assess the applicant’s condition.
35The delay in disputing the chiropractic and massage services claim was approximately 4.5 months. While the respondent has not explained how this delay affected its ability to respond, I do not find that a delay of this length, in the context of ongoing treatment and documentation, has caused prejudice.
36The attendant care assessment was also delayed by approximately 3.75 months. As this relates to an assessment rather than a benefit already in dispute, I do not find that the respondent has suffered prejudice due to the delay. The respondent has not provided evidence that it was unable to conduct its own assessment or that any relevant information was lost.
37I agree with the principle in K.D. that claims of prejudice must be supported by evidence. In this case, the respondent has not provided evidence of specific prejudice, such as unavailable records, lost witnesses, or an inability to conduct assessments. Its ability to respond to the claims does not appear to have been materially affected by the delays.
38Denying the applicant the chance to proceed would cause her significant prejudice. The applicant has provided extensive medical documentation claiming she continues to face impairments, chronic pain, reduced functioning, and increased reliance on care since the accident. Although I do not make a final determination on the validity of these claims at this stage, I am convinced that the respondent remains able to address them if the matter advances. These issues will be more adequately evaluated during the merits phase of the analysis.
The Merits of the Appeal
39I find that the applicant’s appeal demonstrates sufficient merit to support an extension of the limitation period.
40Under this factor, the applicant must show that her appeal has some merit. This does not require a final determination on entitlement, but rather a preliminary assessment of whether there is evidence that could reasonably support her claims.
41The applicant submits that her appeal is supported by medical reports and assessments documenting a decline in her physical and psychological health, reduced functionality, and increased care needs.
42The respondent argues that the appeal lacks merit, asserting that the applicant does not meet the eligibility criteria for NEB, medical rehabilitation benefits, or attendant care.
43In reply, the applicant states that her physical impairments significantly limit her ability to perform daily tasks such as cleaning, lifting, and walking. These limitations affect her independence and psychological well-being, including her ability to interact with her grandchildren. She argues that denying her appeal would deprive her of essential care and support. She relies on medical evidence of chronic pain, reduced mobility, and increased assistance needs to support her entitlement to the benefits claimed.
44I have reviewed the medical documentation submitted by the applicant, including assessments and treatment records. These materials reasonably support her claims for NEB, chiropractic and massage services, and the attendant care assessment. While the respondent disputes her entitlement, the evidence presented is sufficient to establish that the appeal has a sufficient basis and is not frivolous or without foundation.
45The Tribunal is not required to find that all four factors favour the applicant. Instead, the factors must be considered holistically. In this case, while the absence of a clear intention to appeal within the limitation period weighs against the applicant, I have found that the delays were not significant, that the respondent has not suffered prejudice, and that the appeal has some merit.
46In light of the applicant’s submissions and the supporting medical documentation, I am satisfied that the appeal has sufficient merit and is not frivolous or without foundation.
47Accordingly, I exercise my discretion under Section 7 of the LAT Act to extend the limitation period with respect to the claims for NEB, chiropractic and massage services, and the attendant care assessment.
48The respondent also argued that the applicant should be barred from proceeding with the NEB and the attendant care assessment because she did not attend insurer examinations. I will now address this issue.
Failure to Attend Insurer Examinations
49I find that the applicant is not barred from proceeding with the NEB and the attendant care assessment under section 55 of the Schedule.
50Section 55 limits an insured person’s ability to bring a dispute before the Tribunal if they fail to attend a properly scheduled IE or if a healthcare provider fails to provide the required information. However, the Tribunal retains discretion to allow the application to proceed where appropriate.
51The respondent argues the applicant cannot pursue an NEB and attendant care claims due to missing two IEs: a neurology assessment on June 17, 2021, and an occupational therapy assessment on May 12, 2021. As a result of her failure to attend, the respondent stopped benefits, asked for explanations, and suggested alternative dates, but received no response.
52The applicant disputes the respondent’s position, asserting that she attended all properly scheduled independent examinations (IEs). However, her legal representatives also communicated her inability to attend specific in-person assessments due to health-related limitations (See correspondence dated November 6, 2020; November 11, 2020; December 1, 2020; January 8, 2021; January 14, 2021; March 9, 2021; May 10, 2021; June 8, 2021; and September 23, 2021). These communications were made in advance of the scheduled appointments, and rescheduling efforts were undertaken where possible. While there appears to be some inconsistency between the applicant’s assertion and the record of missed appointments, the evidence suggests that she made reasonable efforts to comply with the IE scheduling requirements.
53Based on the correspondence submitted and the record of communications between the applicant’s legal representatives and the respondent, I am satisfied that the applicant either attended the independent examinations (IEs) that were properly scheduled or provided reasonable explanations for her non-attendance. The term “properly scheduled” refers to IEs that were arranged with sufficient notice and in consideration of her health limitations. While the respondent maintains that two IEs were missed, the evidence indicates that the applicant made efforts to communicate her inability to attend and to reschedule where possible. In these circumstances, I find that section 55 of the Schedule is applicable, but I exercise my discretion under subsections 55(2) and (3) to allow the application to proceed, as there is no indication of willful non-compliance or procedural misconduct.
SUBSTANTIVE ISSUES
Is the Applicant Entitled to the Disputed Treatment Plans?
54To 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.
55Regarding assessments, the purpose is to determine whether a condition exists. The insured person bears the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
56Before addressing the plans, it is crucial to clearly outline the nature of the applicant’s reported impairments. The applicant experiences ongoing mid-back pain, left-sided neck pain, lower back pain, knee pain, and shoulder pain. These physical issues have been consistently documented throughout the file and form the basis of the applicant’s claim for additional benefits. Providing this context is essential for understanding the applicant’s position and the subsequent medical evaluations.
57I find the plans for chiropractic and massage services to be reasonable and necessary.
58Jacob Caccanese, chiropractor, submitted a plan for $2,229.50 dated September 2, 2022. It includes a full-body assessment, 10 sessions of exercise therapy targeting multiple body regions, 10 sessions of spinal and joint manipulation, 20 sessions of soft tissue therapy, and 10 protective and therapeutic gloves.
59The plan dated September 1, 2021, in the amount of $1,417.70, was submitted by Mahsa Gordanpour, chiropractor. It proposes six sessions of spinal manipulation, thirteen sessions of soft tissue therapy, mobilization of various body sites, muscle stimulation of the back, two hyperthermy sessions, acupuncture, an initial assessment, and six protective and therapeutic gloves.
60The plan dated August 28, 2020, in the amount of $3,696.50, was submitted by Angelo La Delfa, chiropractor, and Marco Bianchi, massage therapist. It includes 18 sessions of spinal manipulation, 33 sessions of soft tissue therapy, 18 sessions of exercise therapy, and an initial assessment.
61The stated goals of these plans include reducing pain, improving range of motion, increasing strength, enhancing endurance of the deep neck flexors and core muscles, and returning to pre-accident functional activities.
62The respondent argues that the plans are duplicative and not reasonable or necessary, particularly in light of the applicant’s pre-existing conditions, including a shoulder fracture in 2011 and a knee replacement in 2008. It submits that the treatment providers failed to distinguish between impairments caused by the accident and those arising from pre-existing conditions.
63The applicant submits that the proposed plans are reasonable and necessary because they address her ongoing pain, functional limitations, and psychological symptoms resulting from the accident. She relies on the recommendations of her treating chiropractor and massage therapist, who have observed persistent physical impairments, as well as supporting medical opinions from her family physician, Dr. Vilma Tan-Jarvis, and Dr. Viet Dao, a pain management specialist at the Scarborough Pain Clinic, who have documented the need for continued therapeutic intervention.
64Dr. Tan-Jarvis’s clinical notes and records (CNRs) dated October 28, 2020, and September 21, 2020, recommend physiotherapy to address the applicant’s lower back pain, which was attributed to the accident. On May 17, 2021, Dr. Tan-Jarvis advised continued use of Tylenol and massage therapy for the same condition.
65These recommendations were reiterated in subsequent records dated April 20, 2023, April 4, 2024, and October 29, 2024, indicating a consistent medical opinion that the applicant’s symptoms persisted and required ongoing treatment.
66Additional support for the applicant’s plans is found in the June 13, 2023, recommendation from Dr. Dao, who advised physical therapy, and in the January 7, 2024, assessment by Dr. Getahun, who also recommended continued rehabilitation. Both practitioners attributed the need for ongoing treatment to impairments resulting from the accident, rather than to any pre-existing conditions. Their assessments align with the applicant’s reported symptoms and functional limitations and respond directly to the respondent’s position that her current impairments are unrelated to the accident.
67Based on the totality of the evidence, including consistent medical recommendations and documentation of the applicant’s ongoing impairments, I am satisfied that the disputed plans are reasonable and necessary within the meaning of the Schedule. The plans are supported by treating professionals who have linked the applicant’s symptoms, such as pain, reduced mobility, and psychological distress, to the accident, rather than to pre-existing conditions. While the treatment modalities are similar across the years, the evidence indicates that the applicant has not yet returned to her pre-accident level of functioning, and the goals of pain reduction, improved strength, and restored mobility remain unmet. The costs and duration of the proposed treatments are proportionate to the nature and persistence of the impairments.
68Accordingly, on a balance of probabilities, I find that the applicant is entitled to the plans dated August 28, 2020, September 1, 2021, and September 2, 2022.
Chronic Pain Services
69I find that the treatment plan dated August 8, 2023, is reasonable and necessary.
70The plan, submitted by chiropractor Jennifer Violente, totals $11,976.36 and includes 32 sessions of physical rehabilitation, 14 sessions of mental health and addictions therapy, 10 sessions of interpersonal relationships therapy, support activity documentation, two assessments, an ASD knee brace, low lumbar support, transdermal compounding cream, delivery, and a TENS unit. The stated goals are to reduce pain, improve range of motion, resume daily activities, and return to pre-accident work routines.
71The applicant submits that the proposed plan is reasonable and necessary because it addresses chronic pain and functional limitations that, according to her treating professionals, are directly attributable to the accident. She relies on consistent recommendations from Dr. Vilma Tan-Jarvis (family physician), Dr. Viet Dao (pain specialist), and Dr. Tajedin Getahun (orthopaedic surgeon), all of whom have documented her ongoing symptoms and endorsed a multidisciplinary approach to treatment. Their assessments support the view that continued intervention is required to improve her physical functioning and manage pain that has not resolved through prior treatment.
72The respondent disputes the necessity of the plan, arguing that the applicant’s current symptoms are unrelated to the accident. It notes that the applicant has not used prescription pain medication since April 2021, suggesting her pain is not severe. The respondent also points to a 2021 referral to a pain clinic initiated by legal counsel rather than a physician, which it claims undermines the medical necessity of the program.
73I do not accept the respondent’s position. On June 13, 2023, Dr. Dao, who was referred by the applicant’s family physician, diagnosed her with chronic neck and back pain, bilateral shoulder and knee pain, and myofascial pain. He noted that while the applicant had experienced pain prior to the accident, it was manageable until the 2020 accident, after which her symptoms significantly worsened. Dr. Dao recommended a multidisciplinary pain management program including medication, physical therapy, injections, psychotherapy, and lifestyle guidance.
74These recommendations are consistent with the CNRs of Dr. Tan-Jarvis, who advised ongoing physiotherapy and pain management in entries dated February 4, 2022; April 20, 2023; October 19, 2023; and October 29, 2024.
75Further support for the applicant’s treatment plan is found in the orthopaedic catastrophic impairment assessment conducted by Dr. Getahun on January 7, 2024. Dr. Getahun diagnosed the applicant with chronic myofascial strain of the cervical and lumbosacral spine, along with an aggravation of pre-existing conditions. He recommended physiotherapy and chiropractic care within a supervised multidisciplinary setting. These recommendations are consistent with the goals of reducing pain, improving mobility, and restoring functional capacity. Given the nature and persistence of the impairments, the proposed treatment modalities, duration, and associated costs are proportionate and aligned with the statutory test for reasonableness and necessity.
76The respondent also argues that the proposed program duplicates services already received at the Scarborough Pain Clinic and is therefore non-payable under section 47(2) of the Schedule.
77Section 47(2) provides that payment is not required for any portion of an expense for which payment is reasonably available under another insurance plan or law. It is the respondent’s onus to demonstrate. However, the respondent did not submit any evidence to demonstrate that the applicant received overlapping services or that payment was available from another source.
78In the absence of supporting evidence, I am not persuaded that section 47(2) applies in this case.
79Accordingly, on a balance of probabilities, I find that the treatment plan dated August 8, 2023, is reasonable and necessary.
Psychological Assessment
80I find that the psychological plan dated August 24, 2020, is not reasonable and necessary.
81The plan, submitted by psychologist Gloria Fiati, totals $2,254.72 and includes support activities such as documentation, preparation, planning services, and two mental health and addictions assessments. The stated goals are pain reduction, alleviation of psychological and emotional symptoms, and resumption of normal activities.
82The applicant submits that the plan is reasonable and necessary, citing diagnoses of Post-Traumatic Stress Disorder (PTSD), Mixed Anxiety and Depressive Disorder, and adjustment disorder. These diagnoses are supported by a psychological assessment conducted by Drs. Fiati and Dugan, as well as additional evaluations by Drs. Igor Wilderman, a chronic pain management physician; Shahzad Shahmalak, a psychiatrist; and Shulamit Mor, a psychologist.
83The respondent submits that the psychological assessment referenced in the plan is not payable because the applicant incurred it on September 3, 2020, but the treatment plan was not submitted until August 30, 2021, nearly one year later. Under section 38(2) of the Schedule, an insurer is not required to pay for expenses incurred prior to the submission of a treatment plan, unless specific exceptions apply. The respondent further submits that if the incurred assessment differs from the one proposed in the plan, it would still be non-payable due to duplication.
84The psychological assessment dated September 3, 2020, was conducted by Drs. Fiati and Dugan diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, PTSD, and nonorganic sleep disorders. These diagnoses were attributed to the accident.
85However, as the respondent correctly notes, the treatment plan referencing this assessment was submitted nearly one year after the assessment was incurred.
86The exceptions under section 38(2) include: (i) the insurer agreeing to pay without a plan; (ii) the expense being for emergency services within five business days of the accident; (iii) the expense being for prescribed drugs or certain low-cost goods; or (iv) the insurer agreeing the expense is essential for treatment and falls within specified cost limits.
87The applicant has not demonstrated that any of the exceptions under section 38(2) apply in this case. There is no evidence that the insurer agreed to pay for the assessment without a plan, nor is there evidence that the assessment qualifies under any of the other exceptions.
88The applicant further argues that the respondent failed to provide sufficient justification for its denial of the plan, contrary to section 38(8) of the Schedule, despite consistent medical recommendations for psychological intervention.
89I have reviewed the Explanation of Benefits (EOB) dated September 10, 2021. While the insurer responded within the required 10 business days, the EOB only partially complies with section 38(8). Although it lists the items claimed and states that none are payable, the reasons provided are general and refer to other correspondence rather than being clearly articulated within the notice itself.
90Where an insurer fails to comply with section 38(8), section 38(11) of the Schedule requires the insurer to pay for all goods, services, assessments, and examinations described in the treatment plan, beginning on the 11th business day after receipt of the plan and continuing until a compliant notice is provided. As I have not been directed to any subsequent EOB curing the deficiency, the obligation to pay remains in effect.
91However, I must consider the interaction between section 38(2), which prohibits payment for expenses incurred prior to the submission of a treatment plan, and section 38(11), which imposes a penalty for non-compliance with the notice requirement. I find that the general prohibition in section 38(2) takes precedence. If an expense is clearly not payable under the Schedule, the timing of the insurer’s notice is irrelevant. To require payment for a benefit that is not payable under the Schedule, such as an expense incurred prior to the submission of a treatment plan, solely because the insurer’s denial notice was non-compliant would not only be contrary to section 38(2), but would also lead to an absurd result, primarily where the expense was incurred before the period of non-compliance even began.
92Accordingly, on a balance of probabilities, I find that the psychological assessment referenced in the plan dated August 24, 2020, is not reasonable and necessary.
Attendant Care Assessment
93I find that the plan dated October 22, 2020, is reasonable and necessary.
94The plan, submitted by occupational therapist Amaresh Parishya and nurse Lyudmyla Listar, totals $2,200.00. It proposes an assessment of the applicant’s private living environment and includes documentation support activities related to the completion of the Attendant Care Claim Form (Form 1).
95The applicant submits that the proposed Attendant Care Assessment is necessary to evaluate her personal care needs, safety concerns, and use of assistive devices. She reports significant limitations in daily functioning due to chronic pain and relies on both family members and hired assistance for tasks such as housekeeping, meal preparation, and transportation. She argues that the assessment is essential to develop a comprehensive care plan that supports her independence and safety at home.
96The respondent disputes the necessity of the assessment, arguing that the applicant has not demonstrated that her functional limitations are causally related to the accident. It notes that the applicant has consistently reported independence in self-care tasks and that her family physician’s records do not reference a need for attendant care.
97However, the Attendant Care Needs Assessment (Form 1), dated January 25, 2021, identifies specific needs related to hygiene (including bathing, bed care, and clothing), hair styling, cleaning, trimming, and laundering.
98The applicant’s need for attendant care services is supported by occupational therapist Dr. Julian Amchislavsky in his catastrophic impairment determination report dated March 1, 2024. Dr. Amchislavsky explicitly attributes these needs to the injuries sustained in the accident. While the respondent suggests that the applicant’s needs may not be accident-related, I find that the report provides a clear and direct link between the applicant’s functional impairments and the accident. The report outlines how the accident resulted in physical and psychological limitations that necessitate ongoing attendant care, thereby establishing the requisite causal connection.
99Further support is found in the independent neuropsychological catastrophic determination report dated January 22, 2024, by neurosurgeon Dr. Neilank K. Jha. In that report, the applicant reported requiring assistance with most daily activities, including meal preparation and household management.
100Although some of the supporting evidence was submitted after the treatment plan, I find that it aligns with and clarifies the applicant’s reported limitations. It also offers relevant insights into her ongoing care needs. Overall, I believe the applicant has shown there are grounds to suspect a condition that requires further assessment.
101Accordingly, on a balance of probabilities, I find that the October 22, 2020, Attendant Care Assessment is reasonable and necessary.
Catastrophic Assessment
102I find that the plan dated November 29, 2022, is reasonable and necessary.
103The plan, submitted by occupational therapist Amaresh Parikshya, totals $25,280.00 and proposes a series of assessments to determine whether the applicant meets the criteria for a catastrophic impairment (“CAT”) designation. It includes seven CAT-related assessments, two total body assessments, documentation support for claim forms, preparation services, and transportation.
104The applicant claims to have sustained severe and permanent physical and psychological impairments as a result of the accident. Specifically, they report ongoing mid-back pain, left-sided neck pain, lower back pain, knee pain, and shoulder pain. These complaints have been consistent across medical records and assessments. In addition to the physical injuries, the applicant has also alleged psychological impairments, which together form the basis of their claim for a catastrophic impairment designation.
105The applicant submits that the plan is reasonable and necessary because it seeks funding for CAT assessments based on a reasonable possibility that she meets the catastrophic impairment threshold. She relies on legal authorities such as Lee-Anne Henderson v. Wawanesa Mutual Insurance Company, 2015 ONFSCDRS 147 and Ouderkirk v. BelairDirect Insurance Company, 2024 ONLAT 23-006079/AABS, which support the principle that CAT assessments are justified when there is credible evidence of serious and permanent impairments. The applicant points to medical evidence from Drs. Wilderman, Tan-Jarvis, Sukhinder Bhangu, and Shahmalak, including a CAT designation under Criterion 8 by Dr. Shahmalak, to support the need for a comprehensive CAT evaluation.
106The respondent argues that the plan is not reasonable and necessary. It submits that insurers are not automatically required to fund CAT assessments under section 25 and that the applicant must first demonstrate that her impairments are likely to meet the CAT threshold. The respondent argues that the applicant has not exhausted her non-CAT benefits, which weighs against the necessity of CAT assessments.
107I have reviewed the CNRs of Dr. Tan-Jarvis, the applicant’s family physician, which document persistent impairments from September 2020 through April 2024. These records describe ongoing physical and psychological symptoms that have not resolved with treatment and continue to impact the applicant’s daily functioning.
108Dr. Dao’s CNRs dated June 13, 2023, also support the applicant’s position, noting that her pain has worsened since the accident and continues to limit her ability to perform basic tasks.
109In his independent medical evaluation dated August 9, 2023, Dr. Wilderman confirmed the persistence and severity of the applicant’s pain symptoms, which he attributed to the accident. His findings suggest that the applicant’s impairments may be severe and permanent in nature.
110While Dr. Neilank Jha’s CAT neuroassessment, dated January 2024, concluded that the applicant’s Whole Person Impairment (WPI) rating was 34% - below the 55% threshold required under Criterion 7 - this WPI rating does not preclude the possibility of meeting the CAT threshold under other criteria.
111Dr. Shahmalak’s psychiatric report dated March 28, 2024, concluded that the applicant’s mental and behavioural impairments met the threshold for a CAT designation under Criterion 8.
112Similarly, Dr. Getahun’s orthopaedic report dated May 21, 2024, assigned a WPI rating of 46% and concluded that the applicant met the CAT threshold under Criterion 7, based on the combined impact of her physical impairments.
113I am satisfied that the applicant has provided sufficient medical evidence to establish a reasonable basis for pursuing a CAT determination. The findings from both treating and assessing professionals offer objective support for the possibility that the applicant’s impairments meet the catastrophic threshold. In particular, I find the reports from Drs. Shahmalak and Getahun are credible due to their detailed clinical observations, consistency with the applicant’s reported symptoms, and the use of recognized assessment methodologies. While the respondent raises concerns about the timing and consistency of the assessments, I do not consider these concerns sufficient to undermine the overall reliability of the evidence. The assessments were conducted within a reasonable timeframe after the accident and reflect a coherent picture of the applicant’s ongoing impairments. Therefore, I conclude that the medical evidence supports a credible possibility of catastrophic impairment.
114I also reject the respondent’s argument that the applicant must exhaust her non-CAT benefits before seeking CAT assessments. The Schedule does not impose such a requirement, and early identification of catastrophic impairment can be essential for appropriate treatment planning.
115Accordingly, on a balance of probabilities, I find that the treatment plan dated November 29, 2022, is reasonable and necessary.
Is the Applicant Entitled to Non-Earner Benefits?
116I find that the applicant is not entitled to non-earner benefits.
117Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule 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 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.
118Section 36(3) of the Schedule further provides that an applicant is not entitled to a specified benefit for any period before a completed disability certificate (OCF-3) is submitted.
Pre-Accident Functioning
119The applicant reports that prior to the accident, she was independent in managing her health conditions, including lower back pain, knee arthritis, and hypertension. She lived alone in a three-level townhouse, performed personal care and household tasks such as cooking, cleaning, and shopping, and participated in social and recreational activities, including volunteering and walking outdoors.
120These self-reported activities are partially supported by historical medical records. For example, a clinical note from Dr. Born dated December 7, 2017, confirms that the applicant enjoyed walking outdoors for 30 to 90 minutes. Similarly, Dr. Camazzola’s report dated November 5, 2018, indicates that the applicant’s knee pain was manageable, and she could walk reasonably well despite her knee replacement.
Post-Accident Functioning
121The applicant claims that following the accident, her physical, emotional, and cognitive functioning declined significantly. She states that she moved in with her son and granddaughter due to her impairments and now relies on them and hired help for daily tasks. She reports increased pain, social withdrawal, anxiety, and difficulty performing routine activities.
122To support her post-accident limitations, the applicant relies on several assessments, including a psychological report dated September 3, 2020, by Dr. Fiati and Dr. Dugan; an occupational therapy report dated March 1, 2024, by Julian Amchislavsky; and a psychiatric evaluation dated March 28, 2024, by Dr. Shahzad Shahmalak.
123Drs. Fiati and Dugan reported a 75–80% reduction in the applicant’s ability to perform daily tasks and noted emotional withdrawal and sleep disruption. Dr. Amchislavsky found that pain in the cervical spine, shoulders, and lower extremities restricted her ability to perform personal care and domestic chores, requiring paid assistance and the use of a cane. Dr. Shahmalak confirmed persistent pain, low mood, fatigue, and cognitive issues, though the applicant denied suicidal ideation. While these assessments support the presence of impairments, they do not consistently demonstrate that the applicant was continuously prevented from engaging in substantially all pre-accident activities within the 104-week window.
124The respondent relies on Section 44 insurer examination reports from Dr. Mor (psychologist) and Dr. Bhangu (physiatrist), both dated April 8, 2021, which conclude that the applicant does not suffer a complete inability to carry on a normal life. Additionally, contemporaneous records from treating physicians do not consistently reflect the severity of limitations claimed. For example, Dr. Tan-Jarvis’s 2021 note indicates that the applicant’s low back pain was manageable, and there is no indication that she required attendant care or ceased engaging in most pre-accident activities. Furthermore, the applicant’s claim that she moved in with her son after the accident is contradicted by Dr. Born’s 2017 note, confirming she was already living with her son prior to the accident.
125The disability certificate (OCF-3) dated August 28, 2020, states that the applicant suffers from a complete inability to carry on a normal life due to the accident. However, it also references pre-existing conditions such as a left shoulder fracture and knee replacement. While I accept that some impairments were accident-related, the OCF-3 does not clearly distinguish between those and pre-existing conditions. Without corroborating contemporaneous evidence, the certificate alone is insufficient to establish NEB entitlement.
126In conclusion, although the applicant has presented evidence of post-accident limitations, I find that she has not demonstrated a complete inability to carry on a normal life within the 104-week period following the accident. The impairments caused or aggravated by the accident, namely mid-back, neck, and lower back pain, do not, on their own, meet the threshold. Other reported limitations appear to stem from pre-existing conditions that were not shown to have worsened significantly due to the accident. Accordingly, on a balance of probabilities, the applicant has not met the substantive test for entitlement to NEB.
127Accordingly, on a balance of probabilities, I find that the applicant has not met the substantive test for entitlement to an NEB.
Interest
128Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits in accordance with section 51.
Award
129The applicant seeks an award under section 10 of Regulation 664. Under section 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.” [ See, for example, 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration)]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
130The applicant submits that the respondent’s refusal to approve necessary treatment and catastrophic impairment assessments was rigid and unreasonable. She argues that despite providing substantial medical evidence supporting her need for continued care, the respondent failed to engage with her documentation meaningfully and maintained its denials without justification. The applicant claims this conduct compromised her health and recovery and caused undue prejudice. She asserts that the respondent’s inflexible approach, in the face of compelling medical evidence, supports the granting of an award.
131The respondent argues that the applicant is not entitled to an award because none of the disputed benefits were payable. It submits that an award under section 10 requires more than an incorrect denial; it requires conduct that is demonstrably unreasonable. The respondent maintains that it relied on independent examinations when the applicant was willing to attend, and that it was not obligated to arrange IEs under section 44. It denies that its conduct meets the threshold for an award.
132I find that the respondent’s conduct does not rise to the level of unreasonableness required to justify an award under section 10 of Regulation 664. While the applicant disagrees with the respondent’s decisions, disagreement alone does not establish that the insurer acted in a manner that was excessive, stubborn, or unyielding. The respondent provided reasons for its denials and relied on medical assessments in support of its position. There is insufficient evidence to conclude that the respondent’s conduct was unreasonable within the meaning of section 10.
133Consequently, the applicant is not entitled to an award under section 10 of Regulation 664.
ORDER
134For the above reasons, it is ordered that:
i. The applicant is not entitled to an NEB, the plan for psychological assessment or an award.
ii. The applicant is entitled to the remaining plans in dispute, with interest pursuant to section 51 of the Schedule.
Released: September 23, 2025
Harouna Saley Sidibé
Adjudicator