Citation and File Number

Citation: Petersen v. Unifund Assurance Company, 2026 ONLAT 24-008774/AABS Licence Appeal Tribunal File Number: 24-008774/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:

Mary-Ann Petersen

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Diane Parsons, Counsel

For the Respondent:

Callum Micucci, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mary-Ann Petersen, the applicant, was involved in an automobile accident on September 25, 2019, 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, Unifund Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2A case conference took place on November 19, 2024, and this matter was set down for a videoconference hearing to take place on May 5-6, 2025. On April 9, 2025, the applicant filed a Notice of Motion requesting that the Tribunal order that the videoconference hearing date be vacated and that the hearing be converted to the written hearing format. The applicant advised that the attendant care issue that was in dispute at the case conference has been withdrawn. By order dated April 10, 2025, the Tribunal granted the motion.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to the services proposed by Aspire Rehab, as follows:

1. $4,500.50 for occupational therapy devices, in a treatment plan dated July 29, 2022; and

2. $2,942.99 ($5,769.39 less $2,826.40 approved) for occupational therapy devices and services, in a treatment plan dated May 27, 2024?

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

RESULT

4I find that the applicant is entitled to $4,500.50 for the electric bed proposed in the treatment plan dated July 29, 2022, plus interest.

5I find that the applicant is partially entitled to the balance of the treatment plan dated May 27, 2024 plus interest as follows:

1. $419.99 for the cost of the front entrance bench;

2. $1,145.00 for the cost of the purchase and installation of a runner for the basement stairs;

3. $290.00 for the cost of grab bars; and

4. $43.00 for the cost of a long-handled body scrubber.

6I find that the applicant is not entitled to the balance of the treatment plan dated May 27, 2024 for the following items:

1. $950.00 for the cost of the purchase and installation of bilateral railings; and

2. $245.00 for the cost of a handheld shower head.

PRELIMINARY ISSUE

7In its submissions, the respondent asked that a preliminary issue be added as an issue for the hearing. The preliminary issue is whether the applicant is statue-barred from proceeding with her application, due to her failure to attend insurer’s examinations (“IE”). The request is denied for the following reasons.

8In my view, the preliminary issue is not properly before the Tribunal. It is not listed in the response to the application nor in the Case Conference Report and Order. Neither party has filed motions to add a preliminary issue to this proceeding pursuant to Rule 15 of the Licence Appeal Tribunal Rules (“Rules”). In addition, Rule 20.4 provides that a preliminary issue should be raised in the Case Conference Summary for the Case Conference.

9The respondent submits that the application is statute barred as the applicant refused to attend IEs. It states that the applicant was notified of an IE scheduled for October 17, 2022. However, the applicant’s representative informed the respondent, without providing an explanation, that the applicant would not attend the scheduled IE. It therefore argues that pursuant to s. 55(1)(2) of the Schedule, her application is statute barred.

10The applicant in her submissions acknowledges that she did not attend the initial IE with respect to the treatment plan dated July 29, 2022, and states “The initial examination set up for the bed was cancelled as Mary Ann was not in a position to attend”. She notes that she subsequently attended IEs in respect to the treatment plan dated May 27, 2024.

11I find that as no steps were taken by the respondent to add this preliminary issue to the issues in dispute, either at the Case Conference or by motion, I do not agree to consider the preliminary issue and will focus my analysis on the issues that are outlined in the Case Conference Order. To allow the issue to be added at this point in time would amount to an abuse of process and set the tone for a complete disregard of the Rules.

ANALYSIS

Entitlement to Medical and Rehabilitation Benefits

12To receive payment for a treatment 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Entitlement to the treatment plan proposing an electric bed

13I find that the applicant is entitled to the treatment plan for an electric bed.

14The applicant claims entitlement to $4,500.50 for the cost of an electric bed base with accompanying orthopaedic mattress, proposed by Kim Teggelove, occupational therapist, in a treatment plan dated July 29, 2022. The goals of the treatment plan are pain reduction, return to activities of normal living, to offer positional support when sleeping/resting and to assist with transfers in and out of bed.

15The applicant submits that as a result of the accident, she suffered a significant injury to her left shoulder which developed into frozen left shoulder as well as chronic pain. She submits that she requires the electric bed because she suffers from a very disturbed and interrupted sleep. Her mood, motivation, energy levels and even pain levels are all negatively affected by the fact she has trouble falling asleep and staying asleep due to the pain in her left shoulder and her upper and lower back.

16The applicant relies upon the report of Ms. Teggelove, dated May 20, 2024 which assessed her functional abilities. Under “Bed Mobility”, Ms. Teggelove noted that the applicant describes difficulty moving around her bed and describes pain in her left shoulder, back, and left leg when trying to find a comfortable position. She is using magic pillows and magic bags to prop herself up as lying flat aggravates her pain. Ms. Teggelove therefore recommended an electric bed with an orthopaedic mattress.

17The applicant further relies upon clinical note and record (“CNR”) of her family physician, Dr. Michael Kroll, dated June 15, 2023, which confirmed she has “chronic pain and may have a reflex sympathetic dystrophy”. She also relies upon the letter of Dr. Robin Richards, orthopaedic surgeon, dated December 8, 2020, and his report dated December 16, 2024, to support her ongoing chronic left shoulder impairment.

18The applicant also submits that while an initial s. 44 assessment was scheduled, it was cancelled due to the applicant not being in a position to attend. The applicant submits that the respondent’s s. 44 assessors were not asked to opine on this treatment plan even though s. 44 examinations were conducted after the application to the Tribunal was served and responded to by the respondent.

19The respondent submits that the applicant, by her own admission and without explanation, refused to attend a s. 44 examination with respect to this treatment plan. The respondent therefore submits that it has not had the opportunity to respond to the applicant’s evidence with that of its own. The respondent argues that the fact the applicant subsequently attended other IEs related to other treatment plans is not relevant, as the applicant refused to attend the IE specifically regarding the bed. In the alternative, the respondent submits that the applicant has not discharged her burden that the treatment plan in dispute is reasonable and necessary.

20The respondent submits that the applicant’s failure to attend the scheduled IE is a defence to the applicant’s claim for the disputed treatment plan. I disagree for the following reasons.

21Under s. 38(10) of the Schedule, when an insurer receives a treatment plan, it may notify a claimant in its denial letter under s. 38(8) that it requires the claimant to undergo an IE. Under s. 44(9)2(iii) of the Schedule, the claimant is required to submit to all reasonable examinations requested by the IE assessors. However, there is no provision in the Schedule for a claimant to forfeit medical and rehabilitation benefits or the cost of assessments for the period of time the claimant refuses to attend an IE without a reasonable excuse. This is to be contrasted with the forfeiture provisions for specified benefits for a failure to attend an IE without a reasonable excuse under s. 37(7) and s. 37(8)(b)(ii) of the Schedule. The only recourse for an insurer when a claimant refuses to attend an IE scheduled to assess entitlement to medical and rehabilitation benefits is to bring a preliminary issue before the Tribunal for a determination that the claimant is barred from proceeding with their application at the Tribunal under s. 55(1)2. As noted above, the respondent failed to list this as an issue in its response, at the Case Conference or by way of notice of motion under the Rules to add an issue. Accordingly, as there is no other remedy for the applicant’s failure to attend the IE requested, the respondent cannot use the applicant’s failure to attend the IE as a defence to her claim for the disputed treatment.

22I find that the applicant has proven entitlement to the treatment plan in dispute for the following reasons.

23I find that the MRI report dated March 8, 2021, confirms that the applicant suffers “Left shoulder tendinosis and associated low-grade partial articular-sided tear involving the supraspinatus tendon. There was degeneration of superior glenoid labrum without a discrete tear. There was edema of the joint capsule at the axillary recess and rotator interval. These findings were thought to suggest capsulitis.”

24I find that the report of Dr. Richards, dated December 16, 2024, supports the applicant’s ongoing chronic left shoulder impairment. He notes that her symptoms are due to soft tissue injuries of the left shoulder, neck and low back including traumatically induced rotator cuff tendinopathy with the development of partial thickness tearing of the rotator cuff tendon, chronic rotator cuff tendinopathy, traumatically induced, and chronic pain. I find that Dr. Richards provided a summary of the CNRs of the applicant’s treating practitioners within his report which support the applicant’s ongoing complaints and functional limitations with respect to her left shoulder.

25I find that the treatment plan itself relies upon the report of Ms. Teggelove dated December 14, 2021, which recommended an electric bed to help her pain management, to help improve her sleep and to ease her transfers in and out of bed. It notes that she uses multiple pillows under her arm, both in sitting and when lying down to eliminate the effects that gravity has on her shoulder. Because she is unable to use this arm functionally, she has difficulty transferring both from sitting as well as from a supine position. While the applicant did not provide me with a copy of the December 14, 2021 report, I find that these findings were also set out in Ms. Teggelove’s report dated May 20, 2024, which was provided for my review and support the provision of an electric bed.

26With respect to the goals listed in the subject treatment plan. I find that pain reduction and a return to activities of normal living are legitimate goals. I further find that positional support when sleeping and resting and assisting with transfers in and out of bed are reasonable goals based on the medical evidence supporting the applicant’s left shoulder impairment.

27For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that she is entitled to the treatment plan dated July 29, 2022, for an electric bed.

Entitlement to the treatment plan recommending occupational therapy devices

28I find that the applicant is partially entitled to the balance of the treatment plan for occupational therapy devices.

29The applicant claims entitlement to $2,942.99 ($5,769.39 less $2,826.40 approved), for occupational therapy devices and services, proposed by Aspire Rehab, in the treatment plan dated May 27, 2024. The following items are in dispute:

1. Front entrance bench: $419.99

2. Installation of bilateral railings: $950.00

3. Purchase and installation of a runner for the basement stairs: $1,145.00

4. Various items for bathroom safety – supply and install 18” chrome knurled grab bar - $150.00; supply and install 12” chrome knurled grab bar - $140.00; supply and install hand-held shower head with adjustable slide bar - $245.00; purchase of a long-handled shower body scrubber - $43.00

30The applicant submits that she continues to have significant limitations in her left shoulder. She continues to avoid using her upper limb in tasks involving repetitive movement, above shoulder activities, heavier lifting and carrying, pushing and pulling. She avoids using this arm to weight bear and she continues to have range of motion limitations. The applicant further submits that she suffers from intermittent cramps in her left foot and has lumps on the bottom of her foot because of the collision, both of which affect her gait and balance. Additionally, her mobility and balance are compromised with her left arm being kept into her torso for immobilization.

31With respect to the treatment plan in dispute, the applicant relies upon the report of Ms. Teggelove, dated May 20, 2024, which performed a Home Safety Assessment to support her entitlement to the denied items.

32The applicant further relies upon the report of Dr. Richards, dated December 16, 2024, which notes “In view of the chronicity and severity of the ongoing symptomatology, I consider Ms. Peterson to have a significant permanent disability consisting of pain, weakness, loss of the terminal range of motion, lack of endurance, sleep disturbance and inability to return to Ms. Peterson’s preinjury level of activity.”

33The respondent relies upon the IE assessments of Dr. Chaudhry and Ms. Sharma, dated September 25, 2024, in support of the denial of the items in dispute. The respondent submits that both assessors noted no restrictions on walking, transfers, or issues with balance.

Front entrance bench

34I find that the applicant has proven entitlement to the front entrance bench.

35The applicant claims entitlement to $419.99 for the cost of a front entrance bench. The applicant submits that Ms. Teggelove recommended a front entry bench to assist the applicant with putting on her shoes due to limitations bending while standing due to her left shoulder pain. The applicant argues that Dr. Chaudhry did not say she did not need the bench, but rather stated that it is not necessary because she can just use a normal chair. The applicant therefore submits that Dr. Chaudhry agreed it is reasonable for her to need seating at the front door and his suggestion that she use a chair she already has is not reasonable.

36The respondent submits that the front entrance bench is not reasonable because she has access to a chair which she can use as necessary. It argues that there is no explanation as to why she requires an expensive bench.

37I find that the front entrance bench is reasonable and necessary. I find that the medical evidence supports that the applicant has limitations bending and standing due to her left shoulder pain which would require her to sit while putting on her shoes. I agree with the applicant that Dr. Chaudhry agreed that it was reasonable for her to need seating at the front door. I do not accept his finding that the bench was not necessary because she can just use a normal chair when she needs to put her shoes on. I find that the applicant has proved on a balance of probabilities that the front entrance bench is reasonable and necessary for the purpose of assisting her in putting on her shoes.

38For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that she is entitled to $419.99 for the cost of a front entrance bench.

Installation of bilateral railings

39I find that the applicant has proven entitlement to the bilateral railings but has not proven that the cost proposed is reasonable and necessary.

40The applicant submits that she requires the installation of bilateral railings at a cost of $950.00. At the front entrance of her house there are five cement steps to the front porch and one step to enter the home with no existing railings. Ms. Teggelove recommended the bilateral railings to assist in ascending and descending stairs, due to the applicant’s compromised balance.

41The applicant submits that Dr. Chaudhry and Ms. Sharma were of the view that the railings were not reasonable and necessary due to the fact on the day of the examination she did not demonstrate evidence of ataxia or gait issues. The applicant submits that the bilateral railings are not required due to ataxia but rather due to the position of her body as she is traversing the stairs due to the non use of her left arm as she holds it to her body. The applicant argues that the railings are necessary to prevent further injury and falling down the stairs.

42The respondent submits that the installation of bilateral railings is not reasonable and necessary because she has not demonstrated deficits in dynamic balance for standing, mobility and transfers. Ms. Teggelove further does not explain why the item is necessary when she noted that the applicant is “functional and independent” with her mobility. The respondent further argues that Ms. Teggelove notes that the applicant received a quote from a friend for this item, which calls into question whether the amount is reasonable and whether the item is truly necessary. The respondent submits that Ms. Teggelove does not provide an opinion on whether the cost is reasonable or provide alternative quotes from an arm’s length vendor.

43I find that the report of Ms. Teggelove supports that the railings are reasonable and necessary. Ms. Teggelove notes that the applicant’s “mobility/balance is compromised with her left arm being kept into her torso for immobilization”. I find that this supports that the railings are reasonable and necessary when the applicant is ascending and descending stairs due to her compromised balance. I further agree with the applicant that the railings are necessary to prevent further injury and falling down the stairs.

44I do agree with the respondent that a proper quote for the railings has not been submitted. Ms. Teggelove indicates in her report that a verbal quote was received from the applicant from one of her friends. I find that in order for the applicant to receive the railings, she must submit a proper quote from a vendor to the respondent for approval.

45For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that she is entitled to the installation of bilateral railings. However, I find that she has not proven that the cost of the railings submitted is reasonable and necessary.

Installation of carpet runner on basement stairs

46I find that the applicant has proven entitlement to installation of a carpet runner on her basement stairs.

47The applicant claims entitlement to $1,145.00 for the purchase and installation of a carpet runner from the main level of her home to the basement. Ms. Teggelove recommended the runner to minimize the risk of slipping on the stairs and further injury due to the applicant’s compromised balance.

48The applicant submits that Dr. Chaudhry and Ms. Sharma were of the view that the carpet runner was not reasonable and necessary due to the fact on the day of the examination she did not demonstrate evidence of ataxia or gait issues. The applicant submits that the carpet runner is not required due to ataxia but rather due to the position of her body as she is traversing the stairs due to the non use of her left arm as she holds it to her body. The applicant argues that the carpet runner is necessary to prevent further injury and falling down the stairs.

49The respondent submits that the carpet runner is not reasonable and necessary because the applicant was observed ascending and descending the stairs in her home with no apparent difficulty, she did not use the rail for support, and no apparent deficits were noted for mobility. With respect to the quote provided from Carpet Palace for the runner, the respondent submits that Ms. Teggelove did not provide an opinion as to whether the cost associated is reasonable, as it was the applicant who obtained the quote.

50I find that the report of Ms. Teggelove supports that the carpet runner is reasonable and necessary. Ms. Teggelove notes that the applicant’s “mobility/balance is compromised with her left arm being kept into her torso for immobilization”. I find that this supports that the carpet runner is reasonable and necessary when the applicant is ascending and descending stairs due to her compromised balance. I agree that the risk of further injury is a reasonable goal of the carpet runner.

51I do not agree with the respondent that the quote from Carpet Place is not reasonable. The fact that the applicant obtained this quote does not minimize that it is reasonable. I find that the respondent has not provided any evidence that it provided alternative quotes as they simply denied the item. I therefore have no evidence before me to suggest that the cost of the proposed runner is not reasonable.

52For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that she is entitled to $1,145.00 for the purchase and installation of a carpet runner.

Bathroom safety equipment

53I find that the applicant has partially proven entitlement to the bathroom safety equipment.

54The applicant claims entitlement to $578.00 for installation of a 18” chrome knurled grab bar ($150.00); a 12” chrome knurled grab bar ($140.00); a handheld shower head with adjustable slide bar ($245.00); and a long-handled shower body scrubber ($43.00). The applicant submits that Ms. Teggelove recommended various bathroom safety equipment due to limitations in her left upper limb. The recommendations are made in light of the restrictions in her range of motion to maximize safety and independence.

55The applicant submits that Dr. Chaudhry did not provide any basis for his finding that these items are not reasonable and necessary. The applicant submits that Ms. Sharma concluded that the handheld shower head was not necessary because she already had them in her bathrooms. The applicant submits that the device currently in her bathroom does not function well and a replacement is required. Additionally, Ms. Sharma advises that the grab bars were not reasonable and necessary because the applicant was concerned that they might affect the resale value of her house. The applicant submits that she will have the grab bars installed due to her ongoing issues with her shoulder which are worsening.

56The respondent submits that the applicant advised Ms. Sharma that she does not “think [she’ll] put any grab bars, it might decrease the value of my house”. The respondent argues that assistive devices that the applicant does not intend to use are neither reasonable or necessary. The respondent also submits that as the applicant has handheld shower heads in all of her bathrooms, it is unclear why this expense is necessary. While the applicant argues in her submissions that they are 15 years old and do not function well, and accordingly should be replaced, this is not evidence, as none of the assessors noted same.

57I find that the report of Ms. Teggelove supports the need for assistive devices and bathroom equipment to maximize her safety and independence, due to her left shoulder limitations. I agree that Dr. Chaudhry does not provide any opinion as to whether these specific items are reasonable and necessary. I further find that Ms. Sharma does not provide an opinion as to whether the grab bars are reasonable and necessary except to note that the applicant was concerned that their installation might affect the resale value of her house. I do not find that this is a valid reason for the denial as no assessment of whether they are reasonably required are made. I therefore find that the grab bars are reasonable and necessary based on Ms. Teggelove’s recommendation and give more weight to her findings.

58In regard to the long-handled shower body scrubber, I do not find that Ms. Sharma provided any findings respect to same. Therefore, based on the recommendation by Ms. Teggelove, I find that the long-handled shower body scrubber is reasonable and necessary.

59With respect to the handheld shower head, I agree that there is no medical evidence with respect to whether the applicant’s current handheld shower heads are functional and in need of replacement. As the applicant currently has handheld shower heads in both bathrooms of her house, I find that she has not proved on a balance of probabilities that new shower heads are needed and therefore I find that the proposed hand-held shower heads are not reasonable and necessary.

60For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that she is entitled to $290.00 for the grab bars and $43.00 for the long-handled shower body scrubber. I do not find that the applicant has proven on a balance of probabilities that she is entitled to the handheld shower head in the amount of $245.00.

Interest

61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to the treatment plan dated July 29, 2022 and is partially entitled to the treatment plan, dated May 27, 2024, interest applies on any overdue benefits.

ORDER

62For the reasons outlined above, I find,

i. The applicant is entitled to $4,500.50 for the electric bed proposed in the treatment plan dated July 29, 2022, plus interest;

ii. The applicant is partially entitled to the balance of the treatment plan dated May 27, 2024 plus interest as follows:

1. $419.99 for the cost of the front entrance bench;

2. $1,145.00 for the cost of the purchase and installation of a runner for the basement stairs;

3. $290.00 for the cost of grab bars; and

4. $43.00 for the cost of a long-handled body scrubber.

iii. The applicant is not entitled to the balance of the treatment plan dated May 27, 2024 for the following items:

1. $950.00 for the cost of the purchase and installation of bilateral railings; and

2. $245.00 for the cost of a hand held shower head.