Licence Appeal Tribunal File Number: 23-015462/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:
Marigo Perivolaris
Applicant
and
CAA Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nick Iannazzo
APPEARANCES:
For the Applicant:
Ian Drong, Counsel
For the Respondent:
Marim Hadi, Counsel
HEARD: In Writing
OVERVIEW
1Marigo Perivolaris, the applicant, was involved in an automobile accident on June 4, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, CAA Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Prior to the accident the applicant had several medical issues and impairments. Her family doctor had diagnosed her with imbalance issues, osteoarthritis, headaches, dizziness, lower back pain, and severe multilevel spinal stenosis. The applicant experienced numerous falls and resulting injuries. The applicant was prescribed several medications for her medical issues. The applicant was also seeing a chronic pain specialist.
3After the accident, the applicant had surgery to implant a pacemaker.
ISSUES
4The issues in dispute are:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from September 6, 2023 to date and ongoing?
Is the applicant entitled to $1,263.52 for massage and physiotherapy services, proposed by Ajax Family Physiotherapy & Sports Medicine in a treatment plan/OCF-18 dated September 7, 2023?
Is the applicant entitled to $1,888.58 for occupational therapy services, proposed by Joanne Romas, Occupational Therapy Professional Corp. in a treatment plan dated July 7, 2023?
Is the applicant entitled to $320.65 for various assistive devices, submitted on a claim form (OCF-6) dated November 30, 2023?
RESULT
5I find that:
i. The applicant is removed from the MIG.
ii. The applicant is not entitled to a NEB of $185.00 per week from December 8, 2023 to June 4, 2024.
iii. The applicant is entitled to $1,263.52 for massage and physiotherapy services, proposed by Ajax Family Physiotherapy & Sports Medicine in a treatment plan/OCF-18 dated September 7, 2023.
iv. The applicant is not entitled to $1,888.58 for occupational therapy services, proposed by Joanne Romas, Occupational Therapy Professional Corp. in a treatment plan dated July 7, 2023.
v. The applicant is not entitled to $320.65 for various assistive devices, submitted on a claim form (OCF-6) dated November 30, 2023.
Procedural ISSUE
The respondent is raising a new preliminary issue of whether the applicant is barred from pursuing her claim for accident benefits pursuant to section 55.
6On May 1, 2024, the parties attended the Case Conference and on consent determined the issues in dispute, which included: whether the MIG is applicable, entitlement to a non-earner benefit, and entitlement to three treatment plans. The Case Conference Report and Order (“CCRO”) was released and reflected that only these issues were in dispute for this hearing.
7In its submissions, the respondent submits that the applicant is barred from proceeding with her application for benefits due to non-attendance at insurer’s examinations (“IEs”), pursuant to section 55 of the Schedule, which states that an insured shall not apply to the Tribunal if the insurer has requested an examination, and the insured has not complied.
8The respondent submits that the applicant failed to provide clinical notes and records until nearly two years after the accident. Following receipt of the clinical notes and records, the respondent requested section 44 assessments and provided notice on July 10, 2024. The applicant notified the respondent that she would not attend as she was recovering from a recent medical procedure and would provide availability once cleared for examinations. The respondent rescheduled the assessment for September 2024 and provided notice on July 31, 2024. On August 6, 2024 the applicant again stated she would not attend for the same reason, stating that availability would be provided once cleared. To date, the applicant has neither provided evidence of an inability to attend nor made herself available for assessments.
9The respondent submits that the applicant has the onus to provide a reasonable explanation for non-attendance and to make reasonable efforts to attend assessments. The respondent relies on Naji v Economical, 2023 ONLAT, where the Tribunal dismissed the applicant’s claim due to the prejudice caused by non-attendance. The respondent submits that its ability to assess entitlement to NEB has been frustrated, as over two years have elapsed since the accident, and furthermore, it was deprived of the opportunity to conduct IEs to address entitlement to medical benefits within a reasonable time. The delay has caused irreparable prejudice and therefore, the application should be dismissed or stayed until the applicant attends the assessments.
10The applicant objected to the respondent raising this preliminary issue because it was not raised as an issue at the case conference, or by way of motion. The applicant submits that she is prejudiced because she is unable to articulate a full response given the limitations of time and submissions afforded by Reply Submissions.
11The applicant submits that the respondent was apprised of the applicant’s inability to attend at the proposed IEs in August of 2024, but took no steps whatsoever to request documentation pertaining to her inability to participate in these IEs. No motion was brought raising this preliminary issue. If it had, the applicant would have had an opportunity to make a full response, including obtaining records reflecting her hospitalization. Raising this preliminary issue at the hearing, the applicant submits, is equivalent to an ambush.
12I find that it would be highly prejudicial to the applicant if the respondent was allowed to raise this new preliminary issue in this hearing as the applicant was deprived of the opportunity to fully consider and prepare for this issue in advance of the hearing. The respondent did not bring a motion to add this issue in advance of the hearing. Neither did the respondent direct me to evidence to support that it advised the applicant that it intended to raise this issue for this hearing after the issuance of the CCRO. As such, I agree with the applicant that she did not have notice of the preliminary issue.
13As noted in the Divisional Court decision of Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986 at paragraph 8 “fundamental to any administrative process, is the requirement that it be fair. At its most basic, procedural fairness requires that a party have an opportunity to be heard and that it be able to respond to the position taken against it.” I am bound by the Divisional Court’s reasoning and find that if this preliminary issue was to be added at this time, it would be procedurally unfair to the applicant.
14Although the respondent’s preliminary issue is not being added, the respondent also submitted that the non-attendance at IEs is a reason why the applicant should not be entitled to benefits, so I will consider this submission when analysing the applicant’s entitlement to benefits.
ANALYSIS
Causation
15I find that the applicant has led sufficient evidence to establish that the accident was a necessary cause of her psychological impairment (i.e. anxiety) and some of her physical impairments.
16The applicant submits that the correct test for determining causation is the “material contribution” test based upon Monks v ING Insurance Company of Canada, 2008 ONCA 269, 90 OR (3rd) 689, para 87-88. On the other hand, the respondent submits that the correct test is the “but for” test based upon Sabadash v State Farm et al, 2019 ONSC 1121.
17I find that the correct test for determining causation is the “but for” test as set out in Sabadash. Causation is a factual determination made on a balance of probabilities. The applicant must show that they would not have suffered the injuries “but for” the accident. The accident need not be the sole cause of the impairment but must be a “necessary” cause. The Divisional Court in Sabadash went on to hold that, only in exceptional circumstances, where there are two or more “but for” causes of an impairment and it is not possible to prove causation under the “but for” test, the applicant may argue that one cause materially contributed to the injury and therefore should be found liable.
18I will discuss the psychological and physical impairments separately below.
Psychological impairments
19The applicant submits that the applicant suffered ongoing anxiety as a result of the accident and relies on the OCF-3 dated August 22, 2022 and, the clinical notes and records of her family doctor, Dr. Vlahos.
20The respondent submits that the applicant has not presented compelling medical evidence that she sustained a psychological impairment resulting from the accident. The respondent submits that the applicant’s anxiety and depression diagnosis predated the accident, and there is little to no objective evidence to establish that the applicant’s psychological symptoms were caused by or exacerbated by the accident. Furthermore, no assessments or psychometric findings have been presented to substantiate a psychological impairment or a causal connection with the accident, and no medication is being taken nor did the applicant see a psychiatrist or attend therapy or counselling.
21I find that the applicant has led sufficient evidence to establish that the accident was a necessary cause of her psychological impairment for the reasons that follow.
22Firstly, prior to the accident on June 4, 2022, Dr. Vlahos did not indicate in her notes that the applicant was suffering from anxiety. However, after the accident Dr. Vlahos notes many times that the applicant is suffering from anxiety. The applicant saw Dr. Vlahos six days after the accident on June 10, 2022, regarding her injuries from the motor vehicle accident, and in addition to notes regarding her other injuries, the doctor notes that the applicant was experiencing anxiety. The applicant continued to see Dr. Vlahos on a regular basis and anxiety appeared in her notes. More specifically, the following notations are contained in Dr. Vlahos’ clinical notes and records:
i. June 10, 2022 – “Anxiety”
ii. June 15, 2022 – The applicant reported “has a lot of fear in the car and yells – if sees a white car she starts screaming”. The doctor noted “Anxiety”.
iii. June 29, 2022 – “Anxiety”
iv. July 12, 2022 – The applicant reported “nerves are bad in the car and she screams with any car near her”. The doctor noted “Anxiety with driving” “consider psychologist for travelling in car”.
v. August 11, 2022 – The applicant reported “in the car she yells and feels she is going to faint”. The doctor noted “Anxiety with driving” “Depression – situational”
vi. September 27, 2022 - “Depression – situational”
vii. January 26, 2023 – “Anxiety, Adjustment Disorder with Depressed Mood”
viii. March 7, 2023 – “Anxiety, Adjustment Disorder with Depressed Mood”
23Secondly, Dr. Vlahos recommended on July 12, 2022 that the applicant consider seeing a psychologist regarding her anxiety when travelling in a car. Although the applicant did not attend a psychologist specifically with respect to travelling in an automobile, her family doctor found that her anxiety was serious enough to warrant that recommendation. On August 11, 2022, the doctor once again notes that the applicant was experiencing anxiety when travelling in a car.
24Thirdly, Dr. Vlahos completed the Disability Certificate (OCF-3) dated August 8, 2022 and noted in Part 5 that the applicant had “Anxiety” and in Part 7 that “pt being referred to psychologist for her anxiety after MVA”.
25Fourthly, I am not persuaded by the respondent’s submission that there should be assessments, psychometric findings, medication, therapy, counselling or psychiatric visits. These are not necessary when there is compelling and consistent evidence from the family doctor supporting a finding that the accident was a necessary cause of the anxiety.
26Accordingly, I find that the accident was a necessary cause of her anxiety.
Physical Impairments
27I find that the applicant has led sufficient evidence to establish that the accident was a necessary cause of her impairments to her neck, shoulders, back, chest wall, hips and knees.
28The applicant submits that the applicant suffered ongoing impairments as a result of the accident and relies on the OCF-3 dated August 22, 2022 and the clinical notes and records of Dr. Vlahos.
29The respondent submits that the applicant failed to meet her evidentiary burden. Furthermore, the respondent submits that the applicant’s main complaints are conditions that predate the accident - undiagnosed dizziness, spinal stenosis, and left lower extremity weakness from L.5 radiculopathy.
30I acknowledge that the applicant had pre-existing medical issues prior to the accident. Dr. Vlahos documented in her pre-accident clinical notes and records that the applicant had low back pain, balance issues, spinal stenosis, osteoarthritis, headaches, dizziness, and that the applicant had experienced numerous falls.
31However, I find that there is sufficient evidence that the accident was a necessary cause of some of her impairments and/or exacerbated some of her preexisting physical impairments.
32On June 4, 2022, after the accident, the applicant was taken by ambulance to Lakeridge Hospital. The hospital records note that the applicant reported low back pain and it was “very painful to weight bear”. The June 5, 2022 hospital records note “…right pelvic and hip pain, painful weightbearing, diffuse lower abdominal pain…” and “having bilateral neck discomfort with rotation (no spinal tenderness)” and “She needs 1+ assistance to ambulate”.
33After the accident the applicant saw Dr. Vlahos regularly, and her doctor consistently notes the applicant’s injuries to her neck, shoulders, back, chest wall, hips and knees, and the related pain. In Dr. Vlahos’ clinical notes and records she reports, among other things:
i. June 10, 2022 – “Whiplash injury to neck”, “Multiple soft tissue injuries to shoulders, back, chest wall, hips, knees”, “Multiple Bruises”, “Anxiety”, “physiotherapy pt requires physio for MVA injuries whiplash, shoulders, chest, back, knees, hips”
ii. June 15, 2022 – The applicant reported “feels neck pain is worse”, ‘shoulders feel worse with more pain”, “back is worse and the pain is running down her left leg”, “she is not doing any housework”. The doctor noted “Whiplash injury to neck”, “Multiple soft tissue injuries to shoulders, back, chest wall, hips, knees”, “Bruising fading”, “Anxiety”, “Numbness in hands – Local nerve irritation due to soft tissue injuries”
iii. June 29, 2022 – The applicant reported “neck is sore on the left side to head and gives headaches” “pain is the same” “back is worse now and has to use a walker”, “June 27, 2022 started physio”. The doctor noted “Whiplash injury to neck”, “Multiple soft tissue injuries to shoulders, arms, chest wall, back, hips, knees”, “Bruising resolving”, “Anxiety”, “Bradycardia”, “?Concussion”.
iv. July 12, 2022 – The applicant reported “neck is the same, pain continues”, “back is bad and no change noted”
v. August 11, 2022 – The applicant reported “back is very sore and takes Tylenol and Robaxicet …” The doctor noted “Whiplash injury to neck”, “Multiple soft tissue injuries to shoulders, back, hips, knees”.
vi. August 22, 2022 – Dr. Vlahos completed the OCF-3.
34I find Dr. Vlahos’ notes detailed, consistent and supportive of the view that the automobile accident was a necessary cause of the applicant’s physical injuries to her neck, back, shoulders, chest wall, hips and knees.
35However, the applicant had a number of pre-existing conditions and impairments prior to the accident that the applicant has not persuaded me were exacerbated by the accident. Prior to the accident, her family doctor noted imbalance issues, osteoarthritis, headaches, dizziness, and severe multilevel spinal stenosis, and I find that the applicant has not proven that these conditions were caused by or exacerbated by the accident. Also, the applicant had surgery after the accident to implant a pacemaker, and the applicant made no submissions nor presented evidence that the applicant’s heart condition was caused or exacerbated by the accident.
The Minor Injury Guideline (MIG)
36Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
37An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing medical condition combined with compelling evidence that the condition will prevent them from achieving maximal recovery from the minor injury if they are subject to the limit or limited to the goods and services authorized under the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
38The applicant submits that she is entitled to treatment outside the MIG limit because she sustained a psychological impairment as a result of the accident, that her pre-existing medical condition will prevent her from achieving maximal recovery if kept within the MIG, and she suffered a concussion.
Does the Applicant have a psychological impairment that would warrant removal from the MIG?
39I find that the applicant has proven on a balance of probabilities that she should be removed from the MIG because of a psychological impairment.
40Psychological impairments are not included in the definition of minor injury in section 3 of the Schedule.
41The applicant submits that she suffered anxiety as a result of the accident and relies on the OCF-3 dated August 22, 2022 and the clinical notes and records of Dr. Vlahos. The respondent submits that the applicant has not presented compelling medical evidence that she sustained a psychological impairment resulting from the accident. And if the applicant has met the burden of proving causation, the respondent submits that the applicant has not provided sufficient objective medical evidence to establish a psychological impairment.
42As set out earlier, in the section on “Causation”, I have found that the accident was a necessary cause of the applicant’s anxiety, and I explained in detail how I arrived at that finding. Accordingly, I find that the applicant should be removed from the MIG because she has proven on a balance of probabilities that she suffered a psychological impairment (i.e. anxiety) as a result of the accident.
43Having found that the applicant is out of the MIG it is unnecessary to consider the submissions regarding pre-existing medical impairments and a concussion.
The applicant is entitled to the treatment plan dated September 7, 2023 in the amount of $1,263.52.
44The treatment plan dated September 7, 2023 in the amount of $1,263.52 was completed by Ajax Family Physiotherapy and Sports Medicine Centre Inc. and proposed massage and physiotherapy services.
45The proposed goals of the treatment plan are pain reduction, increase in strength and increased range of motion. The stated functional goals are returning to activities of normal living and pre-accident work activities. Barriers to recovery were identified as “Multiple sites of injury, MD Diagnosed Concussion, previous medical history, age of client”.
46The applicant submits that the respondent’s denial does not rely on medical evidence, and merely states that the applicant suffered a minor injury and is not entitled to benefits beyond $3,500.00. The applicant submits that section 38(8) of the Schedule, requires the respondent to give proper medical reasons in denying a treatment plan, and section 38(11) requires the respondent to pay for treatment plans where they have failed to provide sufficient notice of their denial.
47The applicant also submits that the treatment plan is reasonable and necessary and relies upon the treatment plans, the treating records of Dr. Vlahos, the OT assessment of Ms. Sun, the records of Dr. Sokolova that specifically recommended ongoing physiotherapy, and the treating records of Ajax Family Physio that she made improvement with treatment.
48The respondent submits that the applicant did not prove that the treatment plan is reasonable and necessary. The respondent did not address the applicant’s submission that the respondent did not comply with section 38(8).
49For the reasons that follow, I find that the respondent’s denial of the treatment plan failed to satisfy section 38(8).
50Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan. The requirement of medical reasons was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), in which the Executive Chair stated:
an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.
51The respondent’s letter dated December 4, 2023 denied the September 7, 2023 treatment plan (incorrectly referred to as “September 27, 2023” in the respondent’s letter). The respondent enclosed the Insurer’s Examination Report from Dr. R. Moolla dated November 27, 2023. The letter stated that:
Based on this report we have determined that the OCF-18 is not reasonable and necessary as a result of injuries sustained in the accident. Please refer to the attached report for further details.
Please accept this correspondence as confirmation that, in accordance with Section 38(14)(a) of the Statutory Accident Benefits Schedule and based on the findings of this report, we are unable to fund the goods and services proposed on the OCF-18 or the affiliated costs.
52I find that the respondent’s letter does not satisfy section 38(8). The denial did not provide specific details regarding the applicant’s condition that formed the basis of the respondent’s decision. Also, the enclosure of an examination report with a statement that based on this report the respondent has determined that the treatment plan is not reasonable and necessary as a result of injuries sustained in the accident is not clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue because it imposes upon the applicant the obligation to review and understand a long and complex report and discern what conditions the respondent is referring to. This does not serve the Schedule’s consumer protection goal.
53Since the respondent did not submit that a subsequent denial letter compliant with s. 38(8) was issued, I find that the respondent did not issue a subsequent compliant denial letter.
54For these reasons, I find that the respondent’s denial falls short of its obligations under section 38(8). As a result, section 38(11)2 is triggered and the treatment plan is payable, if incurred, starting on the 11th business day after the day that the respondent received the treatment plan.
55However, at this time I wish to consider the respondent’s submission that it was irreparably harmed because the applicant failed to attend IEs that it scheduled after the case conference with respect to the applicant’s entitlement to medical benefits. The applicant submits that it would be procedurally unfair to permit this argument to succeed because the matter was raised for the first time in the respondent’s submissions. The respondent should have brought a motion prior to the hearing but did not. Accordingly, the applicant submits she was not afforded an opportunity to articulate a full response and obtain hospitalization records given the limitations of time and submissions afforded by Reply Submissions.
56I find that the IEs were scheduled a few months after the case conference, and the respondent did not notify the applicant prior to the hearing that her non-attendance at the IEs would be raised at the hearing. So, the applicant learned about this matter for the first time in the respondent’s submissions. I agree with the applicant that she was not given an opportunity to articulate a full response and obtain evidence within the limited time and submissions afforded by Reply Submissions. Although the applicant alludes to her hospitalization in her Reply Submissions, submissions are not evidence, and so, she would have had to obtain evidence to support her position but was not given a reasonable opportunity to do so. Procedural fairness requires that a party have an opportunity to be heard and respond to a position taken against them. I find that it would be procedurally unfair to the applicant to allow the respondent’s submission regarding non-attendance to prevail because the applicant was not given an opportunity to provide a full response and gather and present evidence to support it.
57Accordingly, as I stated earlier, the respondent did not comply with section 38(8), and therefore section 38(11)2 is triggered and the treatment plan is payable, if incurred, starting on the 11th business day after the day that the respondent received the treatment plan.
The applicant is not entitled to the Expenses Claim Form (OCF-6) dated November 30, 2023 in the amount of $320.65.
58The Expenses Claim Form (OCF-6) dated November 30, 2023 in the amount of $320.65 was for the following assistive devices: airway support, drive wedge bed and donjoy ankle support, bathroom safety bench.
59The applicant submits that the respondent’s denial does not rely on medical evidence, and merely states that the applicant suffered a minor injury and is not entitled to benefits beyond $3,500.00. The applicant submits that section 38(8) of the Schedule, requires the respondent to give proper medical reasons in denying a treatment plan, and section 38(11) requires the respondent to pay for treatment plans where they have failed to provide sufficient notice of their denial.
60The applicant also submits that the OCF-6 is reasonable and necessary and relies upon the treatment plans, the treating records of Dr. Vlahos, the OT assessment of Ms. Sun, the records of Dr. Sokolova that specifically recommended ongoing physiotherapy, and the treating records of Ajax Family Physio that she made improvement with treatment.
61The respondent submits that the applicant did not prove that the OCF-6 is reasonable and necessary.
62For the reasons that follow, I find that the applicant is not entitled to Expenses Claim Form (OCF-6) dated November 30, 2023 in the amount of $320.65.
63Firstly, sections 38(8) and 38(11) apply to a treatment and assessment plan, and the applicant did not submit a treatment and assessment plan. She submitted an OCF-6 dated November 30, 2023, and therefore, sections 38(8) and 38(11) do not apply.
64Secondly, the applicant did not persuade me that the assistive devices referred to in the OCF-6 are reasonable and necessary. The applicant made submissions that they were reasonable and necessary, and stated that she relied upon the treatment plans, the treating records of Dr. Vlahos, the OT assessment of Ms. Sun, the records of Dr. Sokolova that specifically recommended ongoing physiotherapy, and the treating records of Ajax Family Physio that she made improvement with treatment. The assistive devices were purchased on March 21 and July 2, 2023. However, the applicant did not direct me to evidence, on or about the time of the purchases, supporting the position that the assistive devices (i.e. airway support, drive wedge bed and donjoy ankle support, bathroom safety bench) were reasonable and necessary. Dr. Vlahos did not recommend these devices on or about the time of the purchases. Ms. Sun’s assessment dated August 17, 2023 was done after the purchases so does not address these devices being reasonable and necessary. Dr. Sokolova’s recommendation on March 20, 2023 was for ongoing physiotherapy, not for these assistive devices, and Ajax Family Physio does not recommend these assistive devices.
65I find that the applicant is not entitled to the assistive devices referred to in the Expenses Claim Form (OCF-6) dated November 30, 2023 in the amount of $320.65. Given this finding, I do not need to consider the respondent’s argument with respect to the applicant’s non-attendance at IEs.
The applicant is not entitled to the treatment plan dated July 7, 2023 in the amount of $1,888.58.
66The treatment plan dated July 7, 2023 in the amount of $1,888.58 was completed by Joanne Romas Occupational Therapist Professional Corp. and proposed an attendant care assessment.
67The proposed goals of the treatment plan are pain reduction and functional restoration. The stated functional goal is to return to activities of normal living. Barriers to recovery were identified as “Chronicity and severity of injuries; lack of Occupational Therapy treatment”.
68The applicant submits that the respondent’s denial does not rely on medical evidence, and merely states that the applicant suffered a minor injury and is not entitled to benefits beyond $3,500.00. The applicant submits that section 38(8) of the Schedule, requires the respondent to give proper medical reasons in denying a treatment plan, and section 38(11) requires the respondent to pay for treatment plans where they have failed to provide sufficient notice of their denial.
69The applicant also submits that the treatment plan is reasonable and necessary and relies upon the treatment plan, the treating records of Dr. Vlahos, the OT assessment of Ms. Sun, the records of Dr. Sokolova that specifically recommended ongoing physiotherapy, and the treating records of Ajax Family Physio that she made improvement with treatment.
70The respondent submits that the applicant did not prove that the treatment plan is reasonable and necessary.
71The respondent also submits that the applicant did not submit the subject treatment plan to the respondent for approval prior to incurring it. The applicant incurred the treatment plan on August 17, 2023, but did not submit it to the respondent for approval until November 30, 2023. The respondent relies on section 38(2) of the Schedule that states that an insurer is not liable to pay an expense if the expense was incurred prior to submission for approval.
72The respondent did not address the applicant’s submission that the respondent did not comply with section 38(8).
73I find that the applicant is not entitled to the payment of the subject treatment plan.
74Section 38(2) states:
An insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) unless,
(a) the insurer gives the insured person a notice under subsection 39 (1) stating that the insurer will pay the expense without a treatment and assessment plan;
(b) the expense is for an ambulance or other goods or services provided on an emergency basis not more than five business days after the accident to which the application relates;
(c) the expense is reasonable and necessary as a result of the impairment sustained by the insured person for, (i) drugs prescribed by a regulated health professional, or (ii) goods referred to in clauses 15 (1) (d) to (f) and 16 (3) (h) to (j) with a cost of $250 or less per item; or
(d) the insurer agrees that the expense is essential for the treatment or rehabilitation of the insured person for goods or services referred to in clause 15 (1) (h) or 16 (3) (l) with a cost of $250 or less per item or service, as the case may be.
75Firstly, I find that the applicant incurred the expense prior to submitting the treatment plan for approval as evidenced by the Assessment Report dated August 17, 2023 that was prepared by Vanessa Sun, OT Reg (Ont.) pursuant to the treatment plan. The applicant did not dispute that she had incurred the expense prior to submitting the treatment plan to the respondent for approval.
76Secondly, the applicant did not make any submissions that she fell within one of the exceptions set out in sections 38(2)(a) to (d).
77Thirdly, section 38(2) is clear that if an applicant incurs an expense prior to submitting the treatment plan to the insurer for approval and the applicant does not fall within one of the exceptions set out in subsections 38(2)(a) to (d), the insurer is not liable to pay the expense.
78Accordingly, the respondent is not liable to pay for the expense incurred with respect to the treatment plan, even if the treatment plan is reasonable and necessary.
79Since section 38(2) is determinative of the issue, it is unnecessary to consider the other submissions by the parties.
80I find that the applicant is not entitled to the treatment plan dated July 7, 2023 in the amount of $1,888.58. Given this finding, I do not need to consider the respondent’s argument with respect to the applicant’s non-attendance at IEs.
The applicant is not entitled to non-earner benefits
81Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
82The CCRO states that the claim for NEB is from September 6, 2023 to date and ongoing. However, the respondent in its submissions states that the NEB was stopped on December 7, 2023, and therefore the disputed period is from December 8, 2023 to June 4, 2024. The applicant did not dispute this in her Reply Submissions, and accordingly I find that this is the correct disputed period.
83The applicant submits that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. The applicant asserts that prior to the subject accident, she gardened, did yard work, housekeeping, baking and cooking and engaged with her grandchildren, did social activity, and after the accident she was substantially unable to do these things. She relies upon the records of Dr. Vlahos, the OT assessment of Ms. Sun, and both OCF-3s in support of her entitlement to a NEB.
84The respondent submits that the applicant fails to meet the test for eligibility to NEB because she has not demonstrated a complete inability to carry on a normal life as a result of the accident. The respondent submits that the applicant was significantly limited prior to the accident, and after the accident continued to remain limited. Furthermore, the respondent submits that an insured person must suffer a complete inability, not just a reduced inability, to carry on a normal life as a result of the accident and the impairment must continuously prevent them from engaging in substantially all of the activities engaged in before the accident. Furthermore, the uncertainty documented by the applicant’s physicians regarding the cause of her limitations makes it impossible to conclude her reduced abilities are accident related. The respondent relies on the opinions of its assessors, Dr. Moolla and Ms. N. Van Loene (OT), who assessed the applicant on November 22 and 23, 2023, respectively, and concluded that she did not suffer a complete inability to carry on a normal life as a result of the accident.
85I find that the applicant has not met her onus to prove that she is entitled to NEB.
Prior to the Accident
86As to the applicant’s pre-accident activities, the applicant refers to Dr. Vlahos’ OCF-3 dated August 22, 2022 where she states “Pt was not limited in her mobility + her ability to cook + clean”. Also, she refers to Dr. Vlahos’ notes dated July 12, 2021 where the applicant reported that she works in the yard, enjoys gardening, cooks and engages with her grandchildren.
87The applicant also relies on the In-Home OT Assessment dated August 10, 2023 where the applicant reported “…that prior to the accident, she enjoyed an active lifestyle; she did not sit still. She enjoyed cleaning the house, gardening, and tending to the yard, she enjoyed entertaining and socialized with others in the neighbourhood. She also enjoyed baking. At this time, she in unable to participate in these activities due to her accident-related injuries. She reported that she does not want to see people anymore.”
88I find that Dr. Vlahos’ clinical notes and records from prior to the accident do not support the OCF-3 statement that before the accident the applicant “…was not limited in her mobility” nor does it support the applicant’s self-reporting of pre-accident activities in the In-Home OT Assessment. The doctor’s records reveal many medical issues, impairments and complaints from the applicant. The applicant reported weakness, extended time in bed, difficulty getting up from bed or off the couch, low mood, material decline in activity, balance issues, back and leg pain, pain with walking, and limited walking ability. The applicant was prescribed several medications for her medical issues. Furthermore, Dr. Vlahos advised the applicant that her legs may get weaker and eventually she may not be able to walk due to osteoarthritis and severe spinal stenosis as they continue to progress with age. The doctor also noted the applicant’s use of a cane and recommended that she use a walker and bathtub chair. Some excerpts from Dr. Vlahos’ notes are set out below:
i. March 4, 2020 –headaches, dizziness, falls with head injury;
ii. Oct. 6, 2020 – “tired and weak lately – in bed a lot”; “needs help to get out of bed or off the couch; loses her balance and falls a lot”; “slowed down a lot compared to how she used to be when she would cook and clean and bake” “she does her work now as best as she could but more and more wants to stay in the house and not go outside anymore” “fatigues easily” “she does not want to stop doing her usual work around the house but her brain says no to her and realizes that she is slowing down”; her grandchildren come and they tire her.
iii. Oct. 29, 2020 – “likely OA hips affecting balance”; “Plan: walker, chair for bathtub; OT to see; can use cane but daughter feels she cannot manage”; “consider Providence Villa for Frailty clinic – pt declined for now”.
iv. July 12, 2021 – “cannot lift a lot”; “balance a bit off”; “hard to climb stairs”; “is nervous”; “back and legs are sore and she needs her socks on at night as she feels cold”; “she is working in the yard and enjoys doing the work in the garden”; “will also cook”; “she wants to do things but cannot do them how she used to and she finds she cannot slow down – forces self to do the work”; “she wants to help and cooks for everyone”; “does not want to say no to the grandchildren and does anything for them”
v. October 26, 2021 – “reviewed her MRI – severe spinal stenosis at L4/L5”; “rest of the levels have mild to moderate spinal stenosis”; “discussed spinal stenosis and how it can result in weakness of her legs and lead to falls as well; “discussed how at the severe level she can undergo surgery”; “she is 81 years old and does not want any surgery to correct”; “reviewed that with age her legs may get weaker and may eventually not be able to walk due to OA as it continues to progress with age”; “reviewed that for pain management can look at epidural steroid injections and reviewed we can refer to Dr. Jamensky …”;”not sure that she wants to see orthopedic surgeon to get an opinion – she is against surgery …”
vi. Oct. 26, 2021 – Referral to Dr. Jamensky notes “Thank you for seeing this patient with spinal stenosis of L4-L5 C/O pain with walking and limited walking ability. Has weakness in legs with balance being off. Please assess and advise re epidural steroid injection.”
vii. March 3, 2022 – “more mobile and more warm now in her feet after she had the epidural steroid injection”; “pain is coming back now – it has lasted 6 weeks”; “…she can go back and see Dr. Jamensky to decide if she needs another injection to help”; “she has generally been healthy and she has been able to manage to do her housework despite being 82 – she is slower now after her OA is flaring but still well compared to others her age”
viii. June 4, 2022 – Motor Vehicle Accident.
89Prior to the accident, Dr. Vlahos referred the applicant to Dr. Jamensky, a chronic pain specialist, who saw the applicant on January 21, 2022. Dr. Jamensky corroborates Dr. Vlahos’ notes regarding the applicant’s back impairments and limitations, and that they were getting worse. The applicant reported having back pain for many years and over the last 2 years it was getting progressively worse. She reported several falls over the last year and had difficulty picking up objects. She could walk for less than 20 minutes without assistance, and 30 to 40 minutes with either a walker or leaning onto an object. She could only stand for about 10 to 15 minutes and has pain when sitting. Dr. Jamensky reported that the applicant has significant spinal stenosis with neurogenic claudication and chronic low back pain. The applicant was given an epidural steroid injection to help with the pain.
90I find that, based upon Dr. Vlahos’ and Dr. Jamensky’s records, prior to the accident, the applicant had several well documented medical conditions and impairments that limited her mobility and activities, as recorded by the doctors. The doctors noted the applicant’s use of a cane, and Dr. Jamensky noted that she used a walker. Dr. Vlahos recommended a walker and bathtub chair as far back as October 29, 2020.
91I find that the applicant reported to Dr. Vlahos on July 12, 2021 that she worked in the yard and gardens, cooks and engages with her grandchildren, however, there is no indication as to the extent or duration of these activities. Moreover, I was not directed to evidence as to what activities the applicant was engaging in on or about 11 months later, when the accident occurred.
After the Accident
92For the disputed period December 8, 2023 to June 4, 2024, the applicant must prove that she is continuously prevented from engaging in substantially all of her pre-accident activities.
93As to the applicant’s post-accident activities, the applicant relies on the updated Disability Certificate completed on November 22, 2023 where Ms. Sun, OT, opined that the applicant suffers a complete inability to live a normal life, with an anticipated duration of 12+ weeks. She commented that “She has decreased sitting, standing and walking tolerances, left lower extremity pain, bilateral shoulder pain, dizziness and multiple falls, decreased activity tolerances and cognitive and emotional limitations.”
94The respondent submits that the limitations noted in the Disability Certificate dated November 22, 2023 were essentially the same ones the applicant experienced prior to the accident.
95I find that Ms. Sun’s description of the applicant’s post-accident activities in the Disability Certificate dated November 22, 2023 is substantially similar to the applicant’s pre-accident activities. Dr. Vlahos reported headaches, dizziness, numerous falls, back pain, leg pain and weakness, imbalance, decreased mobility, depressed mood, fatigue, and that they were getting progressively worse. Dr. Jamensky also reported many of these symptoms. Therefore, I find that Ms. Sun’s description does not support the submission that the applicant was continuously prevented from engaging in substantially all of her pre-accident activities.
96The applicant submits that on March 7, 2023 Dr. Vlahos noted that the applicant “now can only do 40% of what she does” and she should consider a counsellor to help with her anxiety, and that she uses a number of assistive devices, including a bath chair. Firstly, this note was not made on or about the time of the disputed period (Dec. 8, 2023 to June 4, 2024). It was made 9 months before the disputed period, and at that time the applicant was being paid NEB. Secondly, upon review of Dr. Vlahos’ notes, I find that the “… 40%...” comment is under the heading “Subjective” indicating that the comment was made by the applicant to the doctor. There is no indication as to how the applicant arrived at this statement. Importantly, the doctor did not indicate that she concurred with the applicant’s statement nor did she render a similar opinion. Thirdly, prior to the accident, Dr. Vlahos and Dr. Jamensky noted that the applicant was already using a cane and walker. In fact, Dr. Vlahos recommended a walker and bathtub chair as far back as October 29, 2020. Accordingly, I find that the doctor’s note is not supportive of NEB during the disputed period.
97The applicant submits that on March 20, 2023, her neurologist, Dr. Sokolva, noted that since the car accident the applicant has been experiencing dizziness and light-headedness, and that she uses a cane constantly and her walker sometimes. Firstly, this note was not made on or about the time of the disputed period (Dec. 8, 2023 to June 4, 2024). It was made over 8 months before the disputed period, and at that time the applicant was being paid NEB. Secondly, it is well documented by Dr. Vlahos that the applicant’s dizziness, headaches and resulting falls, did not commence after the accident. The applicant had been reporting these matters since at least March 4, 2020. Also, the applicant had been using a cane and walker prior to the accident and this is recorded in her doctors’ notes. Accordingly, I find that Dr. Sokolva’s note is not supportive of NEB during the disputed period.
98The applicant submits that on December 6, 2023, Dr. Vlahos commented that the applicant’s lower area has osteoarthritis and “as it progresses with age, and progresses with the accident (MVA) she will get worsening OA over the next several years to the point it may result in worsening spinal stenosis and weakness in her legs with falls and eventually she will become wheelchair bound”. She also noted that the applicant is “… unable to manage walking like she did before the accident”. Firstly, Dr. Vlahos does not explain what she means by “… progresses with the accident (MVA) …”. She does not indicate what accident-related injuries are causing a progression in the applicant’s osteoarthritis and spinal stenosis, nor how and to what extent they are causing the progression. Importantly, prior to the accident, on October 26, 2021, Dr. Vlahos made a very similar statement to the applicant. She advised the applicant that as she ages her legs may get weaker due to her spinal stenosis and osteoarthritis and eventually, she will not be able to walk as it progresses with age. She advised that surgery will be required when it gets severe, but the applicant did not want surgery. Accordingly, I cannot place significant weight on this submission. Secondly, when Dr. Vlahos noted that the applicant is unable to manage walking like before the accident, she did not state that this was due to the accident. Overall, I find that Dr. Vlahos’ note is not supportive of NEB during the disputed period.
99The applicant relies on the In-Home OT Assessment dated August 10, 2023 where the applicant reported to Ms. Sun that:
i. At the present time, she is able to manage some lighter personal care tasks, however, requires assistance from her daughter and family with heavier personal care, housekeeping and outdoor maintenance tasks due to her accident-related injuries. A landscaping company was hired to complete lawn care, and neighbours assisted with snow removal.
ii. With respect to activities of daily living, prior to the accident, she enjoyed an active lifestyle; she did not sit still. She enjoyed cleaning the house, gardening, tending to the yard, baking and socializing. At the present time, she is unable to participate in any of these activities due to the accident-related injuries.
100I find that the applicant’s conclusion that her inability to participate in activities is “due to her accident-related injuries” is her opinion and it is not explained nor supported with objective evidence in the report, and furthermore, Ms. Sun did not make any inquiries as to what accident-related injuries were being referred to by the applicant. Accordingly, I place little weight upon that conclusion.
101The In-Home OT Assessment on August 10, 2023 was carried out approximately 4 months before the disputed period (Dec. 8, 2023 to June 4, 2024) for NEB. On August 10, 2023 the applicant was being paid NEB. Nevertheless, the applicant did report to Ms. Sun that she was able to manage some lighter personal care tasks, but required assistance from her daughter and family with heavier personal care, housekeeping and outdoor maintenance tasks. A landscaping company was hired to complete lawn care, and neighbours assisted with snow removal.
102The NEB was stopped on December 8, 2023, and therefore it is evidence on or about this time that is more probative of whether the applicant experienced a complete inability to carry on a normal life as a result of the accident.
103In stopping the NEB on December 8, 2023, the respondent relies on its assessors, Dr. Moolla and Ms. N. Van Loene (OT), who assessed the applicant for the purpose of eligibility to NEB on November 22 and 23, 2023, respectively, and opined that she did not suffer a complete inability to carry on a normal life as a result of the accident.
104Dr. Moola, Physician, carried out an examination of the applicant on November 22, 2023, and opined that, as a result of the accident, the applicant sustained myofascial strain injuries to her cervical and thoracolumbar spine, as well as posttraumatic cervicogenic and analgesic overuse headaches. She had reduced range of motion of her cervical and thoracolumbar spine related to myofascial pain and pre-existing osteoarthritis. There was no evidence of an accident-related impairment. Dr. Moola opined that the applicant did not have a substantial inability to carry on a normal life as a result of her accident-related injuries or engage in her pre-accident activities of daily living, as there was no objective evidence of impairment when examined.
105I am not persuaded by the applicant’s submission that little or no weight should be placed upon Dr. Moola’s opinion because his findings differ from the applicant’s documented condition and that he did not consider the applicant’s psychological complaints. Firstly, the applicant acknowledges that she did not provide any of her medical records to Dr. Moola, and accordingly, Dr. Moola had to carry out the assessment without them. Secondly, Dr. Moola was not carrying out a psychological assessment. Thirdly, I find Dr. Moola’s opinion is worthy of weight as it was based upon a physical examination of the applicant for the purpose of eligibility for NEB, and his opinion is corroborated by Ms. Van Loenen’s opinion.
106Ms. Van Loenen, OT, carried out an in-home and functional abilities assessment on November 23, 2023 for the purpose of eligibility for NEB. The applicant lived with her daughter before the accident and after it. The applicant reported partial independence with respect to personal care, resumption of lighter housekeeping duties, and meal preparation using the stovetop or microwave. She reported reduced social activities but did have visits from family, friends and neighbours. Ms. Van Loenen, OT, opined that the applicant’s functional abilities have been affected but it is unclear whether they are directly caused by injuries sustained during the accident or during a possible stroke in the time after the accident. She was not able to opine as to whether the applicant’s balance issues and left-sided weakness were attributable to the accident, and accordingly, recommended a neurologist. Ms. Van Loenen opined that the applicant had not sustained a complete inability to carry on a normal life, and there was no objective medical impairment documented in the medical brief to indicate such a level of disability.
107Dr. Vlahos’ notes on April 6, 2024, which is during the disputed period, indicates that the applicant reported that she was able to do her own cooking, but fatigues easily.
108I find the reports of Ms. Van Loenen, OT, and Dr. Moola, persuasive and worthy of weight, because they were prepared on or about the time that the NEB was stopped, the reports were carried out specifically for the purpose of determining eligibility for NEB, in-person assessments were carried out, and both reports conclude that the applicant did not sustain a complete inability to carry on a normal life as a result of the accident.
109A reduced ability to complete pre-accident tasks is insufficient to meet the test for NEB. The test for entitlement to NEB is stricter and requires the applicant to demonstrate a complete inability to continuously engage in substantially all of her pre-accident activities. I find that applicant has not met her burden to prove that she suffers a complete inability to carry on a normal life as a result of the accident.
110For the foregoing reasons, I find that the applicant has not met her onus to demonstrate entitlement to NEB. Given this finding, I do not need to consider the respondent’s argument with respect to the applicant’s non-attendance at IEs.
Interest
111The applicant did not claim interest.
ORDER
112For the reasons outlined above, I find that:
i. The applicant is removed from the MIG.
ii. The applicant is not entitled to a NEB of $185.00 per week from December 8, 2023 to June 4, 2024.
iii. The applicant is entitled to $1,263.52 for massage and physiotherapy services, proposed by Ajax Family Physiotherapy & Sports Medicine in a treatment plan/OCF-18 dated September 7, 2023.
iv. The applicant is not entitled to $1,888.58 for occupational therapy services, proposed by Joanne Romas, Occupational Therapy Professional Corp. in a treatment plan dated July 7, 2023.
v. The applicant is not entitled to $320.65 for various assistive devices, submitted on a claim form (OCF-6) dated November 30, 2023.
Released: January 5, 2026
Nick Iannazzo
Adjudicator