Papadakis v. Wawanesa Mutual Insurance Company, 2026 CanLII 10367

Citation: Papadakis v. Wawanesa Mutual Insurance Company, 2026 ONLAT 24-005902/AABS

Licence Appeal Tribunal File Number: 24-005902/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:

Prokopios Papadakis

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Tina Radimisis, Counsel

For the Respondent: Darrell March, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Prokopios Papadakis, the applicant, was involved in an automobile accident on December 3, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month from December 3, 2014 to date and ongoing?

ii. Is the applicant entitled to $39.19 ($112.33 less $73.14 approved) for prescription medication, submitted on a claim form (OCF-6) dated October 17, 2023?

iii. Is the applicant entitled to $15,142.00 for a catastrophic assessment, proposed by Omega Medical in a treatment plan dated April 28, 2022?

iv. Is the applicant entitled to $4,059.00 for physiotherapy services, proposed by Natalia Converso of Pony Holdings Inc. in a treatment plan/OCF-18 (“plan”) dated February 23, 2023?

v. Is the applicant entitled to $2,460.00 for a housing assessment and form completion, proposed by Critical Trauma Therapy in a plan dated March 28, 2023?

vi. Is the applicant entitled to $3,181.00 for physiotherapy services, proposed by Physiomed Hurontario in a plan dated June 19, 2023?

vii. Is the applicant entitled to $118.12 for medication and a lumbar support belt, submitted on a claim form (OCF-6) dated July 19, 2023?

viii. Is the applicant entitled to $21,640.50 for dental services, proposed by Innovative Occupational Therapy Services Inc. in a plan dated May 12, 2023?

ix. Is the applicant entitled to $2,916.00 for physiotherapy services, proposed by Physiomed Hurontario in a plan dated August 21, 2023?

x. Is the applicant entitled to $1,185.00 for osteopathic sessions, proposed by The Health First Group in a plan dated January 8, 2024?

xi. Is the applicant entitled to $2,200.00 for a housing assessment and form completion, proposed by Innovative Occupational Therapy Services in a plan dated March 28, 2023?

xii. Is the applicant entitled to $1,108.21 for other assistive devices, proposed by Innovative Occupational Therapy Services in a plan dated March 14, 2023?

xiii. Is the applicant entitled to $2,200.00 for case management assessment, proposed by Critical Trauma Therapy in a plan dated July 24, 2024?

xiv. Is the applicant entitled to $1,995.51 for vestibular physiotherapy services, proposed by Iscope Concussion and Pain Centres in a plan dated May 16, 2024?

xv. Is the applicant entitled to $1,496.75 for physiotherapy services, proposed by Iscope Concussion and Pain Centres in a plan dated May 16, 2024?

xvi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

xvii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is entitled to $2,000.00 for Dr. Lara Davidson’s Mental and Behavioural Evaluation, $2,000.00 for an Occupational Therapy Evaluation, $200.00 for Application for Determination of Catastrophic Impairment (OCF-19), and $200.00 for Treatment and Assessment Plan (OCF-18).

4The applicant is not entitled to the rest of the benefits sought on this application.

5The applicant is entitled to interest.

6The respondent is not liable to pay an award under s. 10 of Reg. 664.

PROCEDURAL ISSUES

7The respondent’s request to exclude the applicant’s submissions is denied.

8The applicant’s initial submissions and the respondent’s submissions were limited to 15 pages in length according to the Case Conference Report and Order (“CCRO”). The applicant’s filed initial submissions are 26 pages in length. Further, the applicant’s initial submissions refer me to a tab that he states contains his submissions regarding an award which is a further 21 pages in length. This brings the applicant’s initial submissions to 47 pages between the two documents. The respondent requests that I exclude the applicant’s submissions that are beyond the limit set in the CCRO. I note that the respondent’s submissions complied with the limit set in the CCRO. I further note that the respondent did not make a motion to strike and made its submissions in the normal course of this written hearing. Rule 9.3 of the Licence Appeal Tribunal Rules suggest I consider any relevant factors, including prejudice, when considering a party’s non-compliance. I agree with the applicant that the party alleging prejudice has the onus of establishing it. However, in addition, I have considered that it is the party that is in non-compliance that bears the onus of providing reasons for being non-compliant, a factor to consider under Rule 9.3.

9Reasons for non-compliance: The applicant did not seek leave to expand the length of his submissions or provide any good reason as to why he should not be subject to the clear limit set by the CCRO. The applicant argues “the submissions are 15 pages excluding the case law and evidence. The paragraphs 80, 79, 78, 77, 74, 73, 72, 71, 63, 62, 61, 43, 42, 40, 39, 38, 37, 36, 35, 34, 25, 20, 16, 13, 12, 11, 10, 8, 5, 3 includes the case law and evidence.” I find that all of these paragraphs are submissions. The applicant has not provided any authority for his interpretation that submissions relating to caselaw or evidence are not considered submissions. I find that the applicant is evading the procedural norms of this Tribunal. The applicant appeals to the Tribunal’s “mandate of ensuring access to justice” in response to the respondent’s request to strike submissions beyond the 15-page limit. While it is the case that the Tribunal’s requirements be interpreted liberally to ensure fairness, it should not mean that a party may shield its abuse of the Tribunal’s process on this basis.

10As to the applicant’s submissions which cast a cloud over the definition of submissions and what is required by the parties, the CCRO is clear, that the applicant may file up to 15 pages of initial submissions and that this limit does not apply to the applicant’s evidence and authority brief. Further, the CCRO requires:

All submissions, evidence and authority briefs filed with the Tribunal must be double-spaced, 12-point, Arial or Times New Roman font with 1.5-inch margins and be indexed, bookmarked/tabbed and consecutively paragraph and page numbered. Submissions must make specific reference to the evidence and authorities by tab and page number.

11I find that the applicant did not comply with the CCRO as follows:

i. The applicant submitted 47 pages of submissions, far beyond the limit of 15 pages.

ii. The applicant did not file an evidence and authority brief, therefore I do not have a document brief before me that is bookmarked/tabbed or page numbered.

iii. The applicant did not file an index of his evidence or authorities.

iv. Instead of a brief, the applicant filed a number of separate electronic documents. Some of these are electronic documents, others are folders that contain further folders and documents. The file labelled Tab 1 contains the applicant’s written submissions rather than the CCRO referred to at paragraph 3 of his submissions. The file labelled Tab 8 is a password protected file that is inaccessible.

v. The applicant did make reference to his evidence and authorities by referring to the file name within his submissions, but did not provide page references, as required.

12Prejudice: I find that there is obvious prejudice to the respondent in having to respond to 47 pages of submissions while it is bound to a 15-page limit for its response. I have also considered 21 pages of submissions, dealing with an award, were provided to the respondent long before the deadline for submissions at this hearing. In my view, the applicant’s non-compliance did not affect the outcome of the hearing in any material way that is prejudicial to the respondent. If there had been good reason to, I would have considered further steps including requesting further submissions by the respondent where specifically necessary. I find that there is no need for such a step in this particular case, given my findings on the substantive merit of the issues in dispute, and that there is no good reason to consider further delaying an outcome on the merits relating to this accident which occurred in 2014.

13Further, I have considered this hearing is in the context of consumer protection legislation. This does not excuse represented parties from non-compliance with Tribunal’s Rules, directions, or orders. However, I recognize that the evidence established the applicant, who is over 75 years old, accesses the justice system through a Greek interpreter, and has been designated catastrophically impaired on the basis of a mental or behavioural impairment, should not be precluded from a hearing on all of the issues in dispute on their merits because of the errors of his representative, in the absence of demonstrated non-compensable prejudice to the respondent. In this context, I refer to a decision applying this principle by the Divisional Court in granting an application to quash a decision of the Human Rights Tribunal: Royal LePage RCR Realty Brokerage v. Human Rights Tribunal of Ontario, 2025 ONSC 6276 at paras. 27-29. My decision to proceed with the hearing on the merits also ensures an efficient, proportional, and timely resolution of the application before me.

14Further, I echo this Tribunal’s comments at paragraph 7 of the initial 2020 decision, that the CCRO required the parties to produce only those documents they intended to rely on, and the applicant did not do so again for this hearing, as the parties did not for the prior hearing. At paragraph 64, the adjudicator notes he “has looked in vain in the documents for the treatment plans so [he] cannot review the stated goals of the treatment.” In many instances on the issues before me, I faced this difficulty. For example, where the applicant refers me to Tab 17 to review a clinical note and record from Critical Trauma Therapy Clinic dated October 22, 2024, I instead find a folder within another folder which contains 29 unique documents and no guidance from the applicant as to where to find this evidence. As noted earlier, I do not have the benefit of an evidence brief that is tabbed and page numbered with submissions referring me to specific tabs and page numbers, as required by the CCRO.

Even if the asserted facts are assumed true, they are insufficient to support the applicant’s entitlement to the disputed benefits

15I have considered whether to reach out to the parties so that they may get another opportunity to address the non-compliance. Ultimately, the case before me does not warrant delaying a decision on the merits of this application because of the following approach. In the spirit of consumer protection, in specific instances where I am unable to locate the evidence referred to by the applicant’s submissions, I have considered the submissions generously assuming that those specific assertions of fact are true. Nonetheless, even taking this approach, I find that the applicant did not meet his onus to establish entitlement to the disputed benefits because he did not satisfy the relevant tests for each issue, including causation. I am cognizant that "It is not this Tribunal's role to search through the evidence and make the argument on behalf of the applicant”; Dooman v TD Insurance, 2025 ONSC 184 at paragraph 50. I am mindful not to cross this threshold. I have reviewed the prior 2020 decision, the 2021 reconsideration, and the 2022 Divisional Court decision, and considered the applicant’s vulnerable status. In my view, after taking the above approach, further submissions from the parties are not warranted under the circumstances.

16For the reasons above, I have not excluded the applicant’s submissions.

Applicant’s Index

17For purposes of clarity for the parties and the reader of this decision, the applicant’s submissions refer me to the following evidence:

i. Tab 1, Case Conference Report and Order of Adjudicator Mary Henein Thorn dated October 9, 2024. However, the document labelled Tab 1 is the applicant’s initial written submissions and not the order referenced.

ii. Tab 2, Catastrophic Impairment Summary & Analysis Report of Omega Medical Associates, dated August 17, 2022.

iii. Tab 3, Occupational Therapy Recommendation letter by Mr. Josh Titus, Occupational Therapist and dated October 23, 2024.

iv. Tab 4, Licence Appeal Tribunal’s Decision and Order dated November 3, 2020.

v. Tab 5, section 25(1) of the Schedule.

vi. Tab 6, Chronic Pain Assessment Report by Dr. Sangita Sharma, and dated November 24, 2023.

vii. Tab 7, Case Management Report by Azrah Lavji, occupational therapist, from Innovative Occupational Services, and dated September 15, 2023.

viii. Tab 8, Physiotherapy Referral Letter by Azrah Lavji from Innovative Occupational Services, and dated March 2, 2023. Password protected.

ix. Tab 9, Chronic Pain Referral from Mr. Azrah Lavji, occupational therapist and case manager, of Innovative Occupational Therapy Services to Critical Trauma Therapy dated July 27, 2023.

x. Tab 10, Occupational Therapy In-Home Functional Assessment Report by Erin Mathison, Occupational Therapist from Innovative Occupational Therapy Services and dated April 11, 2023.

xi. Tab 11, Chronic Pain Referral by Dr. Mohammed Alam dated March 25, 2024.

xii. Tab 12, Medical Opinion Report of Dr. Mohammed Alam dated February 21, 2018.

xiii. Tab 13, Clinical Notes and Records of Dr. Alam. However, the applicant submitted a folder labelled Tab 13 which contains further folders and a number of documents, some are dated, and others are not.

xiv. Tab 14, letter from Sagar Bhatnagar, Clinic Operations Manager at iScope Concussion & Pain Clinics to Debbie C. Sawyer, Accident Benefits Adjuster at Wawanesa dated July 31, 2024.

xv. Tab 15, Occupational Therapy Equipment Submission Letter by Erin Mathison, occupational therapist, and accompanying OCF-18, dated May 5, 2023.

xvi. Tab 16, Insurer Examination Section 44 Catastrophic Impairment Determination Executive Summary by West Park Assessment Centre and dated January 3, 2023.

xvii. Tab 17, Clinical Notes and Records from Critical Trauma Therapy Clinic dated October 22, 2024. However, the applicant submitted a folder labelled Tab 17 containing 29 unique documents, none of them labelled with the relevant date of October 22, 2024.

xviii. Tab 18, Special Awards submissions of the applicant sent to the Respondent dated February 3, 2025.

xix. Tab 19, sections 14, 15(1), and 16(1) of the Schedule.

xx. Tab 20, 16-001031 v Aviva Insurance Canada (2017),.

ANALYSIS

The parties’ submissions on catastrophic impairment

18I note that in their written hearing submissions both parties have provided submissions on whether the applicant is catastrophically impaired. However, I find that the CCRO is clear that the applicant has been designated as catastrophically impaired. Further, the issue of catastrophic impairment was not listed as an issue in dispute in the CCRO and accordingly, I find that this issue is not an issue in dispute at this written hearing. The CCRO is clear that the parties resolved certain issues originally listed in the application. The CCRO states, in part, that the applicant has been found catastrophically impaired. On October 1, 2024, the parties participated in a case conference during which they had an opportunity to frame the issues in dispute. Therefore, I accept that the applicant sustained a catastrophic impairment as a result of the accident.

19The applicant’s submissions argue the applicant meets the definition of catastrophic impairment under Criterions 7 and 8. The respondent argues that the applicant is not catastrophically impaired as defined by the Schedule from a physical perspective and submits that any suggestion by the applicant that he is catastrophically impaired under criteria 1 through 7, is contested. I find that the parties’ submissions on whether he is catastrophically impaired and the basis for the designation are largely not relevant to the issues before me. However, I am mindful that this designation provides increased access to certain benefits under the Schedule including medical, rehabilitation, and attendant care.

20In light of the CCRO and based on the submissions of the parties, it seems that the parties are in agreement that the applicant meets the definition under Criterion 8. The s. 25 assessment report dated August 17, 2022 labelled Tab 2 of the applicant’s materials provided two moderate and two marked impairment ratings by Dr. Lara Davidson, Psychologist meeting the minimum threshold in the Schedule applicable to this 2014 accident. There is also a reference to an Insurer Examination Section 44 (In Person) Catastrophic Impairment Determination Psychiatrist’s Report, completed by Dr. J. Eisen, Psychiatrist, dated December 30, 2022. Dr. Eisen opined the applicant met the catastrophic impairment threshold under Criterion 8 with one moderate impairment and three marked impairment ratings.

21Since the applicant has sustained a catastrophic impairment as confirmed by the CCRO released December 9, 2024 and the s. 44 psychiatrist’s report completed by Dr. J. Eisen, Psychiatrist, dated December 30, 2022, the issues in dispute will be considered in the context of the increased access to benefits this designation provides. However, I am mindful that the onus remains on the applicant to establish entitlement to each benefit in dispute including a nexus to the accident, on a balance of probabilities. In that sense, the respondent is clear that causation for any physical injuries or impairments beyond uncomplicated soft tissue injuries is contested, as it was in the prior 2020 decision.

Causation and Res Judicata

Physical Injuries and Impairment

22I find that res judicata applies to the adverse finding on causation of the applicant’s physical injuries and impairments.

23Generally, res judicata is a legal principle preventing matters that have been previously decided to be heard again. While some exceptions exist, there are three essential criteria for the principle to apply: first, there must be an earlier decision on the issue; second, there must be a final judgment on the merits; and third, the same parties must be involved. In my view, all three principles apply in this case. The purpose of the principle is to provide finality and to promote consistency in decisions.

24In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, the Supreme Court of Canada holds that issue estoppel extends to both “constituent issues or material facts necessarily embraced therein” at para 20. The Court goes on at para 24 to say, “the estoppel extends to the material facts and the conclusions of law or of mixed fact and law (“the questions”) that were necessarily (even if not explicitly) determined in the earlier proceedings.” And further, at para 54, “The estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that “issue” in the prior proceeding.” The Supreme Court further stated in Toronto (City) v. CUPE Local 798, 2003 SCC 63 at para. 52, that re-litigation of a prior-decided issue may be permissible where: (1) the first proceeding was tainted by fraud or dishonesty; (2) fresh evidence that was previously unavailable conclusively impeaches the earlier result; or (3) fairness dictates that prior result should not be binding in the new context.

25A prior proceeding in this case resulted in a Tribunal decision released on November 30, 2020; P.P. v Wawanesa Mutual Insurance Company, 2020 CanLII 94798 (ON LAT). The Tribunal considered causation and whether the applicant’s physical impairments reach the threshold of catastrophic impairment under s. 3(2)(e) of the applicable Schedule, which is commonly referred to as Criterion 7. The Tribunal found:

From my review of the medical evidence, I conclude that Mr. [P.] suffered uncomplicated soft tissue injuries in the accident and the source of his current physical condition is continued deterioration of his shoulders as a result of natural degeneration and earlier trauma.

26The respondent argues that the applicant is not entitled to a number of disputed benefits because from a physical perspective he only suffered uncomplicated soft tissue injuries in 2014. In support of this position, the respondent is relying on medical opinions of assessors that were before the Tribunal previously, and also relying on the prior findings of this Tribunal. In so far as the Tribunal has decided in 2020, 6 years post-accident, the extent of the applicant’s physical injuries, the respondent submits that any attempt to re-litigate the extent of the applicant’s physical injuries caused by the accident should be barred as res judicata.

27The applicant argues that the respondent’s position is based on stale medical evidence and that section 25 assessors opined, in 2022, that the applicant meets the definition of catastrophic impairment under Criterion 7. Further, that this fresh evidence is not barred because an insured may be reassessed due to changing circumstances. While it is true that an insured’s condition may be fluid and that reassessments may be warranted, the applicant has not made any submissions that would impeach the Tribunal’s 2020 finding on causation. I also note that the 2022 section 25 assessment report opines on the stability of the applicant’s condition from a physical perspective but that his status may be fluid from a psychological perspective.

28I do not have any guidance from the applicant’s submissions as to what changed between the initial hearing and the reassessments in 2022 that would warrant a reassessment of his physical impairments and impeach the adverse 2020 finding on causation. Further, the applicant has not argued that there is fresh evidence that was unavailable at the time of the original hearing that could not have been discovered with reasonable diligence, which has now become available and would conclusively impeach the original result. Indeed, my review of the Catastrophic Impairment Summary & Analysis Report dated August 17, 2022 does not indicate any such evidence discovered after the hearing which resulted in the initial 2020 decision.

29Instead, the applicant argues any reference to the 2020 decision by the respondent should be struck and it should be declared irrelevant. I am not persuaded that the responding submissions should be struck, especially because the applicant’s initial submissions refer and rely on the 2020 decision, requesting that I adopt the Tribunal’s reasoning for my decision on chronic pain, which I will address further below. Additionally, I am not persuaded in this case that the applicant has provided any good reason not to apply the principle of res judicata (issue estoppel) to the extent there is an overlap with the findings of fact, law, and mixed fact and law, found in the Tribunal’s 2020 decision and the findings I am necessarily required to make in this hearing, particularly as to causation.

30I find that the doctrine of res judicata (issue estoppel) applies to causation of the applicant’s physical injuries and impairments, and that the prior adjudicator’s explicit finding that the applicant sustained only soft tissue injuries when determining the extent of his physical injuries and the cause of this physical condition is a material fact as specified in Danyluk.

Chronic pain

31I find that res judicata applies to the adverse finding on causation of the applicant’s physical injuries and impairments. Further, that chronic pain is a material fact that is necessarily bound up with the determination of the extent of the applicant’s accident-related physical injuries and impairments, and that a chronic pain assessment report was specifically considered at the prior hearing where the Tribunal made its causation finding. I note that the applicant’s submissions do not address the causation test.

32The applicant has not led evidence that the applicant’s pain is accident related. I am mindful that the applicant has soft tissue injuries caused by the accident, and it is possible that his pain is caused by the accident. This is within a range of possible outcomes. The applicant does not directly deal with the causation test but makes a number of general arguments relating to chronic pain:

i. that I accept his interpretation of the Tribunal’s 2020 decision which he argues acknowledged accident-related chronic pain, and the Tribunal stated it would have approved a chronic pain OCF-18 had it been before it, and

ii. that the respondent has already approved and is funding chronic pain treatment.

33The respondent argues that the applicant has provided no basis for the submission that the Tribunal would have “ruled differently” in respect of the November 2020 Decision if a copy of a chronic pain treatment plan had been provided. Further, that the Tribunal does not mention any chronic pain treatment plan in the prior decision and does not state that it would have reached a different conclusion if one were provided.

The 2020 decision does not acknowledge the applicant has accident-related chronic pain

34The applicant refers to paragraph 66 of the prior decision, before which I note the Tribunal set aside the adverse finding on causation, that the extent of the applicant’s accident-related injuries are soft tissue injuries from a physical perspective to consider whether physiotherapy was reasonable and necessary as a result of chronic pain and shoulder surgeries. Paragraph 66 states:

“Dr. Al-Samak’s report, 4 years post-accident, suffers from the same conclusory faults that Dr. Richards’s report does. Dr. Al-Samak accepts, without critical analysis, that Mr. [P.]’s chronic pain condition was caused by the accident. This is not to say that Mr. [P.] does not have a chronic pain condition but Drs. Paitich and Halman raise the question of causation. To the extent that Mr. [P.]’s accident-related impairments are psychological in nature as agreed by Dr. Wolf in his assessment, a broad-spectrum approach involving psychological treatment and physiotherapy, as Dr. Al-Samak suggests, may provide relief, but I do not have such a treatment plan before me. In its absence, $11,346.00 for physiotherapy to provide only transient relief would be the epitome of unreasonableness and lack of necessity.”

35In the reconsideration decision, the adjudicator of the initial Tribunal decision clarified in relation to whether treatment plans are reasonable and necessary, at para 29: “At no point did I state that the Applicant is not in need of further treatment. I stated that Dr. Al-Samak suggests other treatment. There was little medical support for continuing largely ineffective treatment.” I have considered this when interpreting the original decision.

36The Tribunal set aside the adverse finding in order to consider the applicant’s arguments on whether physiotherapy treatment plans were reasonable and necessary as a result of his chronic pain and during recovery periods after shoulder surgeries, at para 63. The Tribunal did not accept that the applicant suffered from chronic pain caused by the accident as the applicant suggests. Rather, the Tribunal faults the assessors for accepting that chronic pain was caused by the accident without critical analysis in a case where causation was and still is disputed. The Tribunal had before it a chronic pain assessment report that it considered in coming to its conclusion on causation.

37I have considered the timeline and history of this file in coming to my decision on applying the principle of res judicata. In context, there is clearly a final judgment on the merits of the applicant’s physical impairments that were caused by the subject accident after an extensive hearing on the subject that considered the applicant’s physical impairments under Criterion 7, including causation and substantial medical evidence. The proper way to challenge that initial decision was through reconsideration or appeal/judicial review heard by the Divisional Court and I find that the applicant exhausted these options. The accident took place in December 2014. In 2020, the Tribunal considered the applicant’s physical injuries, catastrophic impairment, and causation, and found that the applicant suffered uncomplicated soft tissue injuries from a physical perspective. Further, that the source of his physical condition in 2020 was continued deterioration of his shoulders as a result of natural degeneration and earlier trauma. The reconsideration request of the 2020 Tribunal decision was dismissed, released July 12, 2021. Subsequently, the Divisional Court heard and dismissed an appeal by the applicant: Papadakis v. Wawanesa Mutual Ins. Co., 2022 ONSC 6928, released December 8, 2022. There is no indication that the applicant pursued a further appeal to the Court of Appeal for Ontario.

38Since the finding has not been impeached, and for the reasons above, the principle of res judicata applies to the adverse finding on causation of the applicant’s physical condition.

The applicant has not provided evidence or particulars of its claim that the respondent has approved and is funding chronic pain treatment or provided submissions addressing the causation test

39It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121. To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered the impairments which form the basis for his application. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause.

40Even if I was to set the adverse finding on causation aside in order to consider the applicant’s argument at this hearing, as the Tribunal did in 2020, he has not made a causation argument based on evidence for me to consider. For example, while the applicant submits that the respondent is funding chronic pain treatment, the applicant has not provided any particulars or evidence that would establish what this entails, such as details about prior treatment or copies of OCF-18s, or notices approving chronic pain treatment.

41Further, the applicant alleges that Dr. Sofian Al-Samak, chronic pain specialist, confirmed the applicant’s chronic pain is directly caused by the subject accident. However, the applicant has not referred me to any evidence of this opinion, or any evidence authored by Dr. Al-Samak at all. I have also considered that Dr. Al-Samak’s evidence was already considered by the Tribunal in 2020 which was found to not critically consider causation. If the applicant is referring to evidence that was before the Tribunal previously, there is already a finding based on that evidence. There is no argument before me that the applicant is referring to fresh evidence from Dr. Al-Samak. As noted above, I do not have any reports authored by Dr. Al-Samak to consider in any case.

Consideration of pain by other assessors and whether the applicant’s pain is a symptom of a mental disorder

42The applicant did provide a Chronic Pain Assessment Report by Dr. Sangita Sharma dated November 24, 2023 to argue psychological treatment is recommended to manage his emotional symptoms related to pain. This is the only purpose for which the applicant relies on this evidence. However, this is largely not relevant to the issues in dispute because psychological treatment is not in dispute on this application. A review of the report indicates the same shortcoming identified in the applicant’s evidence that was before the Tribunal in 2020. Dr. Sharma’s report accepts, without critical analysis, that the applicant’s chronic pain condition is caused by the accident. Dr. Sharma includes left shoulder and right shoulder tears in her clinical impression despite the adverse finding on causation addressing the applicant’s shoulders.

43Similarly, the report of Dr. Lara Davidson, Psychologist, when noting the applicant’s pain, refers heavily to the applicant’s experience of constant pain in his right and left shoulders when assessing him under Criterion 8. Dr. Davidson relies on and refers to an occupational therapy report by Ms. Melissa Paniccia for functional data in formulating her ratings. The applicant’s right shoulder pain is noted to be the worst and most disabling. Again, there is a significant reliance on the applicant’s pain and non-use of his right upper extremity, as well as compensatory overuse pain in his left upper extremity, whereas the Tribunal found the applicant’s shoulder condition was not due to the accident, but rather due to prior trauma and natural degeneration. For further context, the prior in-person hearing took place on select dates between November 2018 and June 2019, and the applicant’s August 2022 s. 25 reports state the applicant was left with pain and residual impairment due to right shoulder surgery in September 2017, and he underwent left shoulder surgery in January 2019, during the prior hearing. Prior to this, the applicant had right shoulder surgery in 2011 or 2012, as considered in the Tribunal’s 2020 decision.

44I have also considered the applicant’s reports of pain in light of the Ontario Court of Appeal decision of Pastore v. Aviva Canada Inc., 2012 ONCA 642. While I am not deciding whether the applicant is catastrophically impaired, I find that the decision is assistive in the context of assessing chronic pain and causation considering the applicant’s catastrophic determination under Criterion 8. I note that pain that presents only as a symptom of a mental disorder is rare. Since the applicant’s accident-related physical injuries are uncomplicated soft-tissue injuries, and the applicant’s most significant pain complaints arise out of continued deterioration of his shoulders as a result of natural degeneration and earlier trauma, the applicant has not connected his experience of pain to an accident-related injury or impairment. As a result of this lack of causal connection, I find that the disputed benefits addressing chronic pain are not reasonable and necessary.

45Accordingly, I find that, on a balance of probabilities, the applicant has not established he suffers from chronic pain caused by the accident.

46In summary, the rest of my analysis is based on a backdrop of the Tribunal’s finding on causation and the extent of the applicant’s physical impairment due to the accident. Also, that the applicant has not established accident-related chronic pain. Further, that the issue of catastrophic impairment is not before me but that he has been designated catastrophically impaired under Criterion 8.

47Therefore, I find that on a balance of probabilities, the principle of res judicata applies to the findings made in the 2020 decision, to the extent they overlap with the findings that are necessary for resolution of the disputes before me.

Is the applicant entitled to attendant care benefits in the amount of $6,000.00 per month from December 3, 2014 to date and ongoing?

48I find that the applicant is not entitled to attendant care benefits in the amount of $6,000.00 per month from December 3, 2014 to date and ongoing. However, he is entitled to $655.87 per month from January 31, 2024 to date and ongoing, if incurred. There is no dispute between the parties as to the $655.87 per month entitlement.

49Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”). Section 42(5) provides that an insurer is not required to pay an expense incurred until a Form-1 is submitted. Section 19(3)1.ii. states that the amount of ACBs shall not exceed $6,000.00 per month, if the insured sustained a catastrophic impairment.

50The applicant seeks payment of ACBs from December 3, 2014 to date and ongoing. However, the applicant submitted a Form-1 on April 11, 2023. This Form-1 dated March 9, 2023 is completed by Erin Mathison, occupational therapist, assessing a monthly amount of $8,521.80. Accordingly, under s. 42(5), the respondent is not required to pay any expenses incurred prior to April 11, 2023, when the Form-1 was submitted. Further, the applicant’s submissions state that there are no ACB expenses incurred prior to January 31, 2024, the date the applicant began incurring expenses in the amount of $655.87 per month through Access Personal Support Ltd., an amount accepted and paid by the respondent. This further narrows the relevant period in dispute to January 31, 2024 to date and ongoing, as there are no incurred expenses prior to this according to the applicant’s submissions.

51The applicant argues that there is a significant discrepancy between the ACB assessments relied on by the parties and that I should give more weight to the Form-1 completed by Ms. Mathison because it reflects his need for 24-hour care. The applicant argues this Form-1 is comprehensive because it considers physical, cognitive, and psycho-emotional needs but the applicant’s submissions and evidence do not address causation by a qualified practitioner, which is outside the scope of occupational therapists. Causation is not considered critically in the context of the explicit adverse finding on the applicant’s accident-related physical impairments.

52The applicant further argues that the report captures critical areas of need that are absent from the section 44 assessment, including: a. Supervisory functions (7,525 minutes/week); b. Care coordination (30 minutes/week); c. Mobility assistance in and outside the home (840 minutes/week); and d. Cognitive and emotional support related to safety and functional independence. The respondent argues that the applicant’s claim for ACBs is based on physical impairments and therefore he ought not to be entitled to the larger amount he is claiming. I note that the applicant has not addressed, in light of the adverse finding on causation made previously by this Tribunal, the basis for entitlement to ACBs due to physical impairments that are uncomplicated soft tissue injuries. Further, the applicant’s evidence and submissions do not parse out his accident-related injuries and impairments from his condition that has been found to be a result of natural degeneration and earlier trauma relating to his shoulders.

53The respondent relies on the Form-1 and clinical opinion of Linda Cottrell, occupational therapist, arguing that the applicant requires 14 hours of assistance per week in respect of his housekeeping and outdoor home maintenance needs. This would decrease to 7 hours per week in the winter months. Ms. Cottrell has provided a Form-1 in the amount of $655.87 per month. A review of Ms. Cottrell’s report clarifies that in concluding the amount of assistant reasonable and necessary, she considered Dr. Eisen’s opinion that the applicant demonstrates a “marked impairment” where his ability to perform his activities of daily living is concerned as a result of his mental/behavioural impairments arising from the subject accident.

54Upon review, the Form-1 and Occupational Therapy In-Home Functional Assessment Report of Ms. Mathison dated April 11, 2023 indeed rely heavily on the applicant’s physical condition including limitations in his upper extremities which are claimed to be caused by the subject accident as a forgone conclusion despite the 2020 decision addressing this issue. For example, the applicant argues that I accept the report’s conclusion that the applicant has been diagnosed with cervical and lumbar spine strain, right shoulder re-tear, and a left shoulder tear. I note that a cervical and lumbar spine strain is a soft tissue injury and this Tribunal’s prior decision addressed that the applicant’s shoulder complaints are not caused by the accident. The applicant’s evidence falls short of addressing the applicant’s ACB needs with causation in mind.

55Further, I am referred to a letter dated October 23, 2024 by Josh Titus, the applicant’s treating occupational therapist. The purpose of the letter is to recommend a cane, lumbar support pillow, and prescriptions for the applicant’s physical injuries and symptoms. The applicant argues this is relevant to ACBs because Josh Titus opined that the applicant’s accident-related mental and behavioural impairments caused his physical decline and exacerbation. However, there is no doubt that causation is outside the scope of a treating occupational therapist, so I give no weight to this opinion

56There is no dispute between the parties as to the $655.87 per month entitlement. The dispute is whether the applicant is entitled to $6,000.00 per month, or any amount above the $655.87 already being paid.

57For the reasons above, I find on a balance of probabilities, that the applicant is not entitled to attendant care benefits above $655.87 per month from January 31, 2024 to date and ongoing.

Is the applicant entitled to $39.19 ($112.33 less $73.14 approved) for prescription medication, submitted on a claim form (OCF-6) dated October 17, 2023?

Is the applicant entitled to $118.12 for medication and a lumbar support belt, submitted on a claim form (OCF-6) dated July 19, 2023?

58I find that the applicant is not entitled to $39.19 for prescription medication and $118.12 for medication and a lumbar support belt.

59The applicant did not refer me to any particulars of the medications. I am not referred to the OCF-6s in dispute. However, even if the applicant had filed and referred to the OCF-6s, the applicant’s submissions on this issue do not refer to any evidence that would establish these medications are related to the accident or that they are reasonable and necessary. While the applicant argues this medication is essential for ongoing treatment and management of chronic pain, I am not referred to any qualified medical opinion relating to these claimed medications. Further, the applicant has not established the applicant’s chronic pain has a nexus to the accident for reasons reviewed previously. Even if I set aside the adverse finding, the applicant did not lead evidence that the medications are related to chronic pain, or otherwise related to the accident.

60As for the lumbar support belt, the applicant did not lead evidence or provide submissions addressing the reasoning behind requiring a lumbar support belt in 2023 when the applicant’s physical injuries from 2014 were found to be uncomplicated soft tissue injuries in the 2020 decision and his physical condition was not caused by the accident. Further, the letter by occupational therapist Josh Titus refers to the following relevant reasons for the respondent’s denial:

It was determined the physical injuries you sustained, as a result of the motor vehicle accident of December 3, 2014, were uncomplicated soft tissue injuries. Dr. Paitich, Orthopaedic: Surgeon's assessment of October 27, 2022, opined,'' .... Mr. Papadakis's stated neck and back pain is in no way related to the subject motor vehicle accident."

61As to the applicant’s self-reporting about causation, while I am alive to the fact that the applicant may not appreciate what caused his pain or impairments, it is still the applicant’s evidentiary burden to establish entitlement to disputed benefits at this hearing.

62For the reasons above, I find on a balance of probabilities, that the applicant is not entitled to $39.19 for prescription medication and $118.12 for medication and a lumbar support belt.

Is the applicant entitled to $15,142.00 for a catastrophic assessment, proposed by Omega Medical in a treatment plan dated April 28, 2022?

63I find that the applicant is partially entitled to the disputed plan.

64To 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.

65Notably, for an applicant to prove that an assessment is reasonable and necessary, the applicant must prove that there is some objective evidence to suggest that some condition exists and warrants investigation via an assessment. I also note that, by their nature, assessments are speculative. They are conducted to determine if an applicant has a specific condition or meets a specific threshold. Certainly, there is a possibility that the assessment will prove negative. On the facts before me, my decision turns on the benefit of hindsight, where the assessment took place, proved positive as to the threshold under Criterion 8, and a section 44 assessor subsequently also agreed that the threshold is met.

66The applicant seeks entitlement to the OCF-18 dated April 28, 2022 proposing a comprehensive file review, physical, psychological, and mental/behavioral assessments, and various occupational therapy evaluations, totaling $15,142.00. The respondent included the OCF-18 and its denial notice in its evidence brief. The applicant sought $13,400.00 for the following nine line-items, plus $1,742.00 in applicable tax:

i. $1,000.00 for Physiotherapy Updated File Review

ii. $2,000.00 for Physiatry Catastrophic assessment

iii. $2,000.00 for Psychology Catastrophic assessment

iv. $2,000.00 for Mental/Behavioural Catastrophic assessment

v. $2,000.00 for Occupational Therapy Catastrophic Activities of Daily Living & Community assessment

vi. $2,000.00 for Occupational Therapy Catastrophic Situational assessment

vii. $2,000.00 for Catastrophic Impairment Summary, Analysis & Overall Ratings

viii. $200.00 for Application for Determination of Catastrophic Impairment (OCF-19)

ix. $200.00 for Treatment and Assessment Plan (OCF-18)

67The applicant argues the proposed 2022 assessments are reasonable and necessary despite completion of prior catastrophic impairment assessments in 2017, and subsequent medical examinations by the insurer. The applicant did not refer me to a list of the assessments he is referring to which took place between 2017 and 2022 and their conclusions. As noted earlier, I have gathered that the parties agree on the application’s designation under Criterion 8.

68Regarding entitlement, the applicant makes two general arguments. First, that his evolving condition mandates further catastrophic impairment assessments in 2022, under s. 25(1) of the Schedule. While the Schedule does not limit the number of assessments that may be reasonable and necessary, it is still the applicant’s onus to establish each assessment is reasonable and necessary. I note in this regard, the applicant did not lead objective evidence of his evolving accident-related condition to warrant any further investigation. The applicant did not address any of the line items proposed in the OCF-18. For these reasons, the applicant’s first argument does not establish any investigation is warranted, on a balance of probabilities.

69Second, he argues that the further assessments are reasonable and necessary because section 44 assessors have subsequently opined that he meets the definition for a catastrophic impairment designation. The applicant did not argue this point beyond this general reference and did not file any s. 44 opinions he is relying on in this regard. I reviewed Erin Mathison’s April 11, 2023 report which refers to and quotes, section 44 assessor, Dr. Eisen’s opinion that the applicant met the catastrophic impairment threshold under Criterion 8. A catastrophic designation under Criterion 8 is not conclusive on its own as to whether all of the proposed assessments were reasonable and necessary. The conclusion does not address whether there is some objective evidence to suggest that each of the proposed investigations are warranted. However, I am persuaded in these specific circumstances that an opinion of both section 25 and 44 assessors concluding that the applicant meets the definition of catastrophic impairment under Criterion 8 means that the related proposed assessments became reasonable and necessary.

70While the applicant did not refer me to the s. 44 opinion other than a general reference and he did not file the report for purposes of this hearing, the evidence establishes a general timeline of events that is helpful for context as follows. The applicant’s 2017 section 25 assessments found he did not meet the threshold under Criterion 8. The subsequent section 44 assessments between 2017 and 2022 also found he did not meet the threshold. A section 44 insurer examination report dated May 28, 2019 by Dr. Ariel Zielinsky, Psychiatrist, is a specific example referenced in the respondent’s denial notice. The applicant sought the disputed section 25 assessments in April 2022 and was denied on May 9, 2022. Subsequently, the applicant obtained the following section 25 reports:

i. Physiatry Evaluation by Dr. Kevin Hsu, Physiatrist, on June 8, 2022

ii. Psychological Evaluation by, Dr. Lara Davidson, Psychologist, on June 14, 2022

iii. Mental and Behavioural Evaluation by Dr. Lara Davidson, Psychologist, on June 14-15, 2022

iv. Occupational Therapy Evaluation by Ms. Melissa Paniccia, Occupational Therapist, on June 20 & 21, 2022

71Since catastrophic assessments are speculative, and I have before me confirmation that both section 25 and section 44 assessors agree that the applicant meets the threshold under Criterion 8, it follows that seeking further assessment under Criterion 8 was reasonable and necessary. On this basis, I find that the following disputed line items are reasonable and necessary in the context of the applicant’s subsequent confirmed Criterion 8 rating:

i. $2,000.00 for Dr. Lara Davidson’s Mental and Behavioural Evaluation, assessing and providing a Criterion 8 rating.

ii. $2,000.00 for an Occupational Therapy Evaluation, relied upon by Dr. Davidson in the context of a Criterion 8 assessment and rating.

iii. $200.00 for Application for Determination of Catastrophic Impairment (OCF-19), seeking a Criterion 8 determination.

iv. $200.00 for Treatment and Assessment Plan (OCF-18), seeking the disputed assessments.

72I find that the applicant has not connected all of the disputed line items to Criterion 8 when making the general argument. Further, since the applicant did not refer me to contemporaneous, compelling, or objective evidence that the rest of the assessments are reasonable and necessary, I find that he has not met his burden to establish entitlement, on a balance of probabilities.

73Accordingly, on a balance of probabilities, I find that the applicant is entitled to $4,400 plus any applicable taxes for the four line-items specified above.

Is the applicant entitled to $2,460.00 for a housing assessment and form completion, proposed by Critical Trauma Therapy in a plan dated March 28, 2023?

Is the applicant entitled to $2,200.00 for a housing assessment and form completion, proposed by Innovative Occupational Therapy Services in a plan dated March 28, 2023?

74I find that the proposed housing assessments are not reasonable and necessary.

75The applicant argues that home modifications are required to make the applicant’s day-to-day life more manageable, safe, and lessen the effects of his injuries and impairments. The applicant argues that he is entitled due to his serious psychiatric, cognitive, and chronic pain issues, and because he has been designated catastrophically impaired. I note that while catastrophic impairment is a designation that may make certain benefits available to an insured, it is still the applicant’s onus to establish entitlement to disputed benefits.

76The applicant submits that the purpose of the assessment is for “the Housing Assessor to provide costing and a report outlining the costs and planning for the actual completion of the home modification assessment. This included a contractor to comment on the implementation of the occupational therapist’s recommendations.” While the applicant is critical of the respondent’s denial, arguing that it relies on outdated medical reports to deny this assessment, it is the applicant’s onus to prove on a balance of probabilities that he is entitled to this benefit. The applicant’s submissions and evidence continue to rely on the applicant’s physical injuries that have not been established to have a nexus to the accident as the basis for entitlement to this and other benefits.

77Based on the applicant’s submissions, this assessment does not meet the threshold of being reasonable and necessary because the applicant did not refer me to some objective evidence to suggest that a housing assessment is warranted as a result of accident-related impairments. I note that the applicant did not include and refer to the disputed plans or identify the stated goals of the plans. However, in this case, even if the applicant had filed and referred to the plans he still has not met his evidentiary burden because it is well-established that the treatment and assessment plans themselves are not medical evidence.

78For the reasons above, on a balance of probabilities, I find that the proposed housing assessment is not reasonable and necessary.

Is the applicant entitled to $21,640.50 for dental services, proposed by Innovative Occupational Therapy Services Inc. in a plan dated May 12, 2023?

79I find on a balance of probabilities that the applicant is not entitled to the disputed dental services.

80The applicant relies on a Case Manager’s Report dated September 15, 2023 by Azrah Lavji, occupational therapist. This report refers to the applicant’s self report that “he underwent dental procedures due to his inability to effectively clean his teeth secondary to pain, restricted range of motion, and lack of strength at his shoulders. He advised that more procedures are required.” The applicant’s submissions regarding this plan do not refer me to any objective evidence to establish entitlement of the goods and services proposed. It is entirely based on self-reporting from the applicant. Further, the adverse finding relating to the applicant’s shoulder complaints means that his dental concerns are not caused by the subject accident. I note that the applicant did not file and refer to the disputed plan which limits the Tribunal’s ability to assess the goals of treatment, or whether they would be met to a reasonable degree. However, in this case, even if the applicant had filed and referred to the plan, he still has not met his evidentiary burden to establish entitlement.

81For these reasons, I find, on a balance of probabilities, that the applicant is not entitled to the disputed dental services.

Is the applicant entitled to $1,185.00 for osteopathic sessions, proposed by The Health First Group in a plan dated January 8, 2024?

82I find that the applicant is not entitled to the plan proposing osteopathic sessions.

83The applicant submits that Dr. Al-Samak recommends continued treatment for the applicant to manage his chronic symptoms, which include osteopathic care. I have no evidence before me authored by Dr. Al-Samak, as noted previously. Further, chronic pain has not been established to be caused by the accident.

84While the applicant did not provide the disputed plan for review, this is not the basis for my decision. The applicant did not lead evidence to establish these sessions are reasonable and necessary, as required to establish entitlement.

85For the reasons above, the applicant is not entitled to the plan proposing osteopathic sessions.

Is the applicant entitled to $1,108.21 for other assistive devices, proposed by Innovative Occupational Therapy Services in a plan dated March 14, 2023?

86I find that the applicant is not entitled to this plan.

87The Applicant claims assistive devices with respect to: “(i) a cane ($11.29); (ii) a lumbar support belt ($90.39); (iii) Bath bench = $100.56; (iv) Shower hose/head, hand held = $42.93; (v) Installation for shower head = $39.55; (vi) Inner non slip bath mat = $32.56; (vii) Outer non slip bath mat = $53.10; (viii) 3 Grab bars - e.g. as prescribed for bathroom for safe transfers = $31.63, $29.37, and $33.89; (ix) Installation for grab bars (3) = $254.25; (x) Long-handled reacher = $20.33; (xi) Sock aid = $22.59; (xii) Long handled bath sponge = $13.55; (xiii) Bed assist rail = $126.55; (xix) Installation of bed assist rail = $39.55; and (xx) Delivery of items from Agta Home Health Care = $67.80.”

88While the issue is drafted as claiming $1,108.21, the amounts above only add up to $1,009.89 and the applicant has not addressed what this difference accounts for. Further, I have already decided the dispute regarding a lumbar support belt claimed on an OCF-6 dated July 19, 2023, so this aspect is a duplication.

89The applicant submits that I consider the claimed assistive devices in light of the applicant’s chronic pain, psychiatric, cognitive issues, and that he has been designated catastrophically impaired. The applicant does not connect a Criterion 8 mental and behavioural catastrophic impairment designation to any of the assistive devices disputed in this plan. Rather, the applicant states the medical condition necessitating these expenses are due to chronic pain as a result of the accident. While the applicant did not refer me to the plan in dispute, that is not the basis on which the applicant is not entitled to the disputed plan.

90On this point, the respondent maintains that the applicant’s accident-related physical injuries are uncomplicated soft tissue injuries. For reasons already provided, the applicant has not established that he suffers accident-related chronic pain.

91The applicant refers me to a letter from Erin Mathison, occupational therapist dated May 5, 2023 as support for a raised garden bed and a tablet, and related items. A significant portion of the applicant’s submissions on this issue in dispute advocate for these items and refer me to the applicant’s Tab 15 which contains the above-noted letter and a plan proposing these items in the amount of $1,186.01. I do not have before me a dispute relating to the plan submitted to the respondent on May 5, 2023 containing a raised garden bed and tablet, and this plan was not identified as an issue in dispute at this hearing, so I do not need to decide whether it is reasonable and necessary. However, adding to my concern for this vulnerable applicant are some noted observations made on June 6, 2023 during a s. 44 occupational therapist assessment by Linda Diane Cottrell that I would like to note:

He flatly declined the proposed tablet, noting, “If you give this thing to me, I promise you that I will throw it away. Who would recommend something like [this] to me? At my age, I have no interest in learning how to use such a thing. I do not want it. I will throw it away. The person who recommended [this] needs to see a Psychiatrist.”

When the assessor explained what a raised garden bed is and showed him a few pictures of these on her cell phone, Mr. Papadakis scoffed at the idea of engaging in gardening in this manner. He then began to cry again, noting, “I don’t want anything like this. If you give it to me, I will throw it away.”

92The applicant did not meet his evidentiary burden establishing the items claimed in his submissions are reasonable and necessary as a result of the accident. On a balance of probabilities, I find that he is not entitled to this plan.

Is the applicant entitled to $2,200.00 for case management assessment, proposed by Critical Trauma Therapy in a plan dated July 24, 2024?

93I find that this assessment does not meet the threshold of being reasonable and necessary.

94The applicant argues that although the respondent has approved case management services it is necessary to reassess the applicant’s case management needs. The applicant argues that this assessment is reasonable and necessary due to the applicant’s condition evolving, and the assessment will identify gaps that may need to be addressed. In addressing this proposed benefit, the applicant has not led any evidence to establish that an assessment is reasonable and necessary. While the applicant is critical of the respondent for not appreciating the importance of ongoing comprehensive evaluations, the onus is on the applicant to establish entitlement. The applicant has not referred to any objective evidence to establish that this assessment is warranted.

95I find, on a balance of probabilities, that this assessment does not meet the threshold of being reasonable and necessary.

Is the applicant entitled to $1,995.51 for vestibular physiotherapy services, proposed by Iscope Concussion and Pain Centres in a plan dated May 16, 2024?

96I find that the plan proposing vestibular therapy does not meet the threshold of being reasonable and necessary.

97The applicant argues that the proposed plan is reasonable and necessary because the applicant developed vestibular issues, including dizziness, balance problems, and other symptoms that are typically treated through vestibular rehabilitation therapy. The applicant did not refer me to evidence of any contemporaneous complaints that would support these submissions. Rather, the applicant refers to various reports of headaches. Further, the applicant has made no reference to evidence that vestibular therapy has been recommended outside of the health practitioner that proposed the disputed plan. Although I do not have a copy of the proposed plan, it is well established that a treatment and assessment plan is not in itself medical evidence that the goods and services proposed within it are reasonable and necessary.

98The applicant’s submissions do not refer me to any reporting of either dizziness or balance issues prior to 2022, 8 years post-accident. The applicant’s submissions do not address this significant gap in the evidence or argue a basis to accept these complaints as being related to the 2014 accident.

99As to the applicant’s headaches, Dr. Sharma’s s. 25 report dated November 24, 2023 contradicts the applicant’s submissions that he experiences headaches with symptoms of photophobia and phonophobia:

Headaches: Mr. Papadakis’s frontal headaches are not associated with nausea, vomiting, photophobia, phonophobia, visual changes or aura. He describes an aching, sharp, and shooting sensation. He reports no history of syncope, seizure, or head injury. He reports no fever/chills or signs of systemic infection. He/She reports no history of hypertension. There are no indications of medication overuse headache. His headaches occur spontaneously without any aggravating factors. He finds that nothing relieves his headaches.

100The applicant notes that the respondent has approved Dr. Sharma’s recommendation for interventional management though a trial of nerve block injections. However, the applicant has not argued any nexus between the applicant’s headaches and the request for vestibular therapy. The respondent did not directly address nerve block injections in its submissions; but the onus remains on the applicant to establish entitlement. The applicant has not referred me to any opinion that the applicant’s headaches require vestibular therapy or that nerve block injections are related to vestibular therapy. In sum, the applicant has not provided evidence of vestibular therapy being recommended for the applicant’s symptoms, or that such recommendation is reasonable and necessary.

101I find, on a balance of probabilities, that the plan proposing vestibular therapy does not meet the threshold of being reasonable and necessary.

Is the applicant entitled to $4,059.00 for physiotherapy services, proposed by Natalia Converso of Pony Holdings Inc. in a plan dated February 23, 2023?

Is the applicant entitled to $3,181.00 for physiotherapy services, proposed by Physiomed Hurontario in a plan dated June 19, 2023?

Is the applicant entitled to $2,916.00 for physiotherapy services, proposed by Physiomed Hurontario in a plan dated August 21, 2023?

Is the applicant entitled to $1,496.75 for physiotherapy services, proposed by Iscope Concussion and Pain Centres in a plan dated May 16, 2024?

102I find that the plans proposing physiotherapy therapy do not meet the threshold of being reasonable and necessary.

103The applicant refers to an opinion of Dr. Taromi, whom he describes as his treating physician and states that Dr. Taromi had previously advocated for the necessity for physiotherapy during the recovery period post-surgery, specifically for the right and left shoulder injuries sustained in the motor vehicle collision. I do not have any reference in the applicant’s submissions pointing me to any evidence authored by Dr. Taromi or reference to evidence establishing that the applicant required surgery as a result of the accident rather than as a result of degeneration and prior trauma that impeaches the adverse finding. Upon review of the Referral For Chronic Pain Clinic letter dated July 27, 2023 authored by Azrah Lavji, occupational therapist, a progress note by Dr. Behzad Taromi, Orthopaedic Surgeon, is cited. The progress note dated June 9, 2021 is quoted in the referral letter as follows:

“This 70-year-old male was seen on June 9, 2021, he previously underwent bilateral shoulder rotator cuff repair; He had right shoulder SCR (superior capsular reconstruction) in 2017 and left-sided shoulder rotator cuff repair 2019. Currently complains of right more than left shoulder pain increases with after above shoulder tasks that pain is moderate intermittent deep over the shoulders…”

104This does not impeach the 2020 adverse finding that the source of his current physical condition is continued deterioration of his shoulders as a result of natural degeneration and earlier trauma. Since I am not referred to any evidence authored by Dr. Taromi, there is no evidence from him that after the prior hearing took place, some fresh evidence would connect the applicant’s shoulder condition to the accident.

105I find, on a balance of probabilities, that the plans proposing physiotherapy do not meet the threshold of being reasonable and necessary.

Interest

106The applicant is entitled to interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

107The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

108In determining the type of conduct for which an award is appropriate, the adopted standard is set out in the Financial Services Commission of Ontario case: Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 (“Plowright”). According to Plowright, unreasonable conduct can include “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” behaviour. In November 2024, this approach was reviewed by the Divisional Court in McDonald v. Aviva Insurance Company, 2024 ONSC 6030.

109Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198 (“Vivekanantham”), at paras 43-51, recognizes the Court of Appeal’s finding that the Tribunal’s jurisdiction to grant an award is a broad power. The Divisional Court found the Tribunal has jurisdiction to consider an award on benefits that are settled or paid prior to a final determination by the Tribunal. I find that, as to the benefits to which the applicant is not entitled, the respondent is not liable to pay an award. In this context of entitlement, I will review the parties’ arguments regarding the following benefits:

i. The ACB up to $655.87 per month from January 31, 2024 to date and ongoing that the applicant is entitled to on prior agreement of the parties,

ii. The $4,400.00 relating to the disputed OCF-18 to which the applicant is entitled as a result of my decision.

Delayed or withheld ACB

110As to the ACB entitlement, the applicant argues that since the applicant was designated as catastrophically impaired under Criterion 8 by January 3, 2023, the respondent’s ACB insurer examination scheduled for June 6, 2023 is an unreasonable delay. The applicant also submits that his claim for ACBs was submitted on March 9, 2023.

111As reviewed in my ACB analysis above, the applicant submitted a Form-1 on April 11, 2023. This Form-1 dated March 9, 2023 is completed by Erin Mathison, occupational therapist. Accordingly, under s. 42(5), the respondent is not required to pay any expenses incurred prior to April 11, 2023, when the Form-1 was submitted. For this reason, I am not persuaded that an application for ACB submitted April 11, 2023 and a scheduled insurer examination on June 6, 2023, is an unreasonable delay meeting the threshold described in Plowright.

Delayed or withheld catastrophic assessment

112I have found that the applicant is entitled to $4,400.00 plus any applicable tax relating to the disputed catastrophic assessment OCF-18. The applicant’s arguments for an award relating to these benefits are largely a repetition of the arguments made regarding this benefit being reasonable and necessary. I have already addressed those arguments in my analysis of the disputed OCF-18.

113As argued by the respondent, the applicant has not made any argument or led evidence that the respondent engaged in “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” behaviour that unreasonably delayed these benefits. The applicant sought assessments through the disputed OCF-18 but did not lead evidence of changed circumstances or an evolving condition. The applicant did not lead any compelling, contemporaneous, or objective evidence that would support the applicant’s position that the respondent ought to have found the OCF-18 reasonable and necessary rather than denying it. The respondent denied the OCF-18 relying on prior assessments, among other reasons. While I have found that the applicant is ultimately partially entitled to the OCF-18, it is well established that a decision of the Tribunal that is contrary to the respondent’s position does not in itself warrant entitlement to an award.

114Taking into consideration the overall situation regarding Criterion 8, I note that, in my view, there was delay relating to approving Criterion 8 assessments. Based on the record before me, both parties’ assessors opined between 2017 and 2022 that the applicant did not meet the definition under Criterion 8. The applicant’s assessor updated this opinion in a report dated August 17, 2022. As the applicant argues, by January 3, 2023, both parties agreed the applicant met the definition under Criterion 8. Certainly, from the point when the applicant’s status was updated with a catastrophic impairment designation, there was delay in approving the disputed section 25 assessments that would address Criterion 8. I do not have before me any reasons for denial of Criterion 8 assessments that the respondent relied upon which would continue to apply after its assessor opined that he met the definition under Criterion 8. Under the circumstances the respondent did not act perfectly, considering the respondent’s duty to adjust the applicant’s file on an ongoing basis. However, the applicant has not met his onus to establish that any of the delay was unreasonable, as described in Plowright.

115For the reasons above, I find that the respondent is not liable to pay an award.

ORDER

116For the reasons above, I make the following orders:

i. The applicant is entitled to $2,000.00 for Dr. Lara Davidson’s Mental and Behavioural Evaluation, $2,000.00 for an Occupational Therapy Evaluation, $200.00 for Application for Determination of Catastrophic Impairment (OCF-19), and $200.00 for Treatment and Assessment Plan (OCF-18), plus interest.

ii. The applicant is not entitled to the rest of the benefits sought on this application.

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