Licence Appeal Tribunal File Number: 24-010462/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:
Mariedel Zapanta
Applicant
and
Security National Insurance Company
Respondent
DECISION
VICE-CHAIR: Brian Norris
APPEARANCES:
For the Applicant: Gordon W. Harris, Counsel
For the Respondent: Adrianna Klukowska, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mariedel Zapanta (“the Applicant”) was involved in an automobile accident on April 20, 2022, and sought benefits from Security National Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
Are the Applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?
Is the Applicant entitled to an income replacement benefit (“IRBs”) in the amount of $400.00 per week for the period from April 20, 2022, to date and ongoing?
Is the Applicant entitled to attendant care benefits (“ACBs”) in the amount of $1,449.05 per month for the period from May 8, 2024, to date and ongoing?
Is the Applicant entitled to a medical benefit in the amount of $3,220.00 for optometric services, proposed by Dr. Dolman in a treatment plan/OCF-18 (“plan”) dated September 7, 2022?
Is the Applicant entitled to a medical benefit in the amount of $2,507.50 for occupational therapy services, proposed by Creative Therapy in a plan dated September 15, 2022?
Is the Applicant entitled to a medical benefit in the amount of $3,416.58 for psychological services, proposed by Apex Health Network in a plan dated April 8, 2024?
Is the Applicant entitled to a medical benefit in the amount of $3,092.83 for occupational therapy services, proposed by KW Rehabilitation in a plan dated May 7, 2024?
Is the Applicant entitled to a medical benefit in the amount of $3,220.00 for optometric services, proposed by Dr. Dolman in a plan dated November 30, 2022?
Is the Applicant entitled to a medical benefit in the amount of $1,900.00 for occupational therapy services, proposed by KW Rehabilitation in a plan dated January 24, 2024?
Is the Applicant entitled to a medical benefit in the amount of $1,525.50 for a Nutritional Assessment, proposed by Rosalyn Zhang in a treatment plan dated November 24, 2022?
Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a Psychological Assessment, proposed by Apex Health Network in a treatment plan dated February 22, 2024?
Is the Applicant entitled to a medical benefit in the amount of $3,039.80 (less $712.81 approved by the Respondent) for a Neurovisual Assessment, chiropractic service, supplements, and social work intervention, submitted on a claim form (OCF-6) dated August 15, 2022?
Is the Applicant entitled to a medical benefit in the amount of $2,671.38 for osteo therapy treatment, and neuropathy treatment services, submitted on a claim form (OCF-6) dated February 16, 2023?
Is the Applicant entitled to a medical benefit in the amount of $2,873.28 (less $740.95 approved by the Respondent) for a neurovisual treatment, and Audiology Assessment and supplements submitted on a claim form (OCF-6) dated September 1, 2022?
Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant withdrew her claim for entitlement to expenses submitted on an OCF-6, dated September 1, 2022. The issue is no longer in dispute.
4The Applicant sustained a concussion as a result of the accident, which is not a minor injury, and is not subject to the MIG or the $3,500.00 funding limit for a minor injury.
5The Applicant is not entitled to IRBs as a result of the subject accident.
6The Applicant is not entitled to ACBs as a result of the subject accident.
7The Applicant is entitled to the following plans because she has demonstrated that they are reasonable and necessary as a result of the subject accident:
i. The plan by Dr. Dolman, dated September 7, 2022, in the amount of $3,220.00; and
ii. The plan by Dr. Dolman, dated November 30, 2022, in the amount of $3,220.00.
8The Applicant has not met her onus to demonstrate entitlement to the following plans:
i. The plan by R. Zhang, dated November 24, 2022, in the amount of $1,525.50;
ii. The plan by Creative Therapy, dated September 15, 2022, in the amount of $2,507.50;
iii. The plan by Apex Health Network, dated February 22, 2024, in the amount of $2,200.00
iv. The plan by Apex Health Network, dated April 8, 2024, in the amount of $3,416.58; and
v. The plan by KW rehabilitation dated January 24, 2024, in the amount of $1,900.00, and the plan dated May 7, 2024, in the amount of $3,092.83;
9The Applicant is not entitled to the expenses submitted on claims forms, dated August 15, 2022, and February 16, 2023.
10The Applicant is entitled to interest on the plans proposed by Dr. Dolman, dated September 7 and November 30, 2022.
11No award is payable.
BACKGROUND
12The Applicant was the driver of a vehicle which struck the curb on the side of the road. She sought no medical attention at the time of the accident, but went to the hospital a few days later, and was diagnosed with a concussion.
13The Applicant has a medical history that includes diagnoses for borderline personality disorder, attention deficit and hyperactivity disorder, hyperacusis and central auditory processing disorder, and autism. She also sustained concussions in 2016 and 2017.
14The Respondent maintains that the accident was very minor and that the Applicant is using her experience as an accident benefit claims adjuster to derail the adjusting of her claim. The Respondent suggests that the Applicant’s pre-existing mental and behavioral impairments are a contributing factor in her current presentation. Additionally, the Respondent submits that the Applicant was involved in a subsequent accident on January 8, 2023, in which she sustained non-minor injuries, which the Respondent submits completely altered the course of the Applicant’s health and functional status.
15In reply, the Applicant submits that the Respondent’s reference to pre-existing conditions supports her claim that she cannot recover if subject to the MIG and the $3,500.00 funding limit.
ANALYSIS
The Applicant is not subject to the Minor Injury Guideline (“MIG”)
16The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
17The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule. Alternatively, she would not be subject to the MIG if she has a documented pre-existing injury which would preclude her recovery from accident-related injuries if subject to the MIG.
18For the following reasons, I find that the Applicant sustained a concussion as a result of the accident, which is not a minor injury. Therefore, I find that the Applicant should not be subject to the MIG and the $3,500.00 funding limit for a minor injury.
19Recently, in Marcelo v. The Personal Insurance Company, 2026 ONSC 974 (“Marcelo”) the Divisional Court concluded that a concussion is not a minor injury. In the reasons for the decision, the Court noted that the defining factor of whether someone is subject to the MIG is based on their injury, and not their impairment arising from the injury. The Court concluded that it would be illogical to find that an injury, such as a brain injury or brain contusion, which has the potential to be “catastrophic” can also be considered “minor”.
20While Marcelo was released after the parties issued submissions and tendered evidence for this hearing, it remains binding upon me. Typically, a scenario such as this one would warrant additional submissions from the parties, however it is unnecessary here as the determination in Marcelo is indisputable – concussions are not a minor injury.
21Here, there is clear and uncontroverted evidence demonstrating that the Applicant sustained a concussion as a result of the accident.
22The hospital records include a diagnosis of a concussion. The entry dated April 23, 2022, by Dr. S. Brady, assessed the Applicant as having concussion symptoms and referred her to the Armory, which I understand to be a sports injury and medicine clinic. Further, the discharge note from the hospital, also dated April 23, 2022, lists brain concussion as the diagnosis and Dr. Brady as the primary emergency department physician. From this, I conclude that Dr. Brady diagnosed the Applicant with a concussion at the hospital and referred her for follow-up therapy.
23Additional to the hospital records, the intake assessment with Dr. J. Dixon, chiropractor, includes a diagnosis of “Post Concussion syndrome: Physiologic PCS, Cervicogenic PCS, Vestibular-Ocular PCS”. The diagnosis of post-concussion syndrome by Dr. Dixon further indicates that the Applicant sustained a concussion as a result of the subject accident. Taken together, I find that Dr. Brady and Dr. Dixon diagnosed the Applicant with a concussion as a result of the accident.
24Although the Respondent has concerns regarding the Applicant’s claim that she sustained a concussion, I find that the facts above outweigh the Respondent’s concerns. In its submissions, the Respondent highlighted that the Applicant continued to her destination following the accident, waited a few days before attending at the hospital, and returned to work following the accident. It also highlights that the Applicant had pre-existing concussion issues, that she has a history of banging her head against walls when frustrated, and the Applicant delayed her application for benefits. However, none of this information is sufficient to refute the diagnoses outlined in the hospital and Dr. Dixon’s records. This is because none of these factors raised by the Respondent serve to impeach the concussion diagnoses described previously. It is settled law that the Respondent must take their insured as they are, even if the insured has a history of concussions, or hitting their head on walls.
25At last, while the Respondent is critical of the Applicant’s delayed claim – she applied for accident benefits nearly four months after the accident – the fact remains that the Respondent accepted her claim and does not dispute that an accident occurred. If the Respondent had issue with the Applicant’s late application, it was incumbent upon it to address the issue at that time, not years later in a hearing on a separate issue. The Respondent cannot now use that delayed application to deny that the Applicant sustained a concussion in the accident.
26Having found that the Applicant sustained a concussion as a result of the accident, it follows that I find she has not sustained a minor injury in the accident and is not subject to the MIG and the $3,500.00 funding limit for a minor injury.
Causation
27Before addressing the treatment and assessment plans, IRBs, and ACBs, I must address causation as it relates to the Applicant’s claim. A substantial factor clouding the Applicant’s claim is the fact that she was involved in a subsequent accident on January 8, 2023.
28In the January 2023 accident, the Applicant sustained another concussion and soft-tissue injuries. As a result, she was not subject to the MIG or the $3,500.00 funding limit.
29The Respondent submits that the Applicant’s accident-related complaints were all present, to the same or similar severity, prior to the subject accident. It submits that any exacerbation of the Applicant’s symptoms is related to her return to work in August 2022, and not the accident.
30Alternatively, the Respondent submits that the January 8, 2023 accident broke the chain of causation and completely altered the course of the Applicant’s health and functional status. The Respondent further submits that the plans submitted in 2024 should be considered in light of the 2023 accident and are not causally related to the 2022 accident.
31The Applicant, in her initial submissions, never addressed the impact of the January 8, 2023 accident in a substantial way. Similarly, she never explained why the 2024 plans were proposed in relation to this accident. In reply, she submits that the 2023 accident “ought not be considered” and that raising issues with respect to the 2023 accident is more prejudicial than probative to her claim. Though, the Applicant never elaborated on the reasons to support that submission.
32Further in reply, the Applicant submits that it is the job of adjusters and their assessors to separate injuries from different accidents using the medical documentation. She submits that her assessors, occupational therapist A. McHaffie, and Dr. A. Bodnar, psychologist, ensured that they addressed injuries only related to the subject accident and not the subsequent accident on January 8, 2023.
33On the issue of causation, the relevant test is the “but for” test as set out in Sabadash v. State Farm et al, 2019 ONSC 1121 (“Sabadash”). In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be “a necessary” cause. The applicant must prove that “but for” the accident, she would not suffer the impairments which form the basis for her claim for accident benefits. I will address the issue of causation as it applies to the specific plan.
$3,220.00 for optometric services proposed by Dr. K. Dolman, plan dated September 7, 2022, and $3,220.00 related to a plan, dated November 30, 2022
34I find that the Applicant has demonstrated that these plans are reasonable and necessary as a result of the accident. These plans predate the January 8, 2023 accident. Additionally, the plans aim to address her concussion symptoms sustained in the subject accident. Given the timing of the submission of these plans, together with the fact that the Applicant was diagnosed with a concussion at the hospital following the accident, I find that causation is not at issue for these plans.
35These plans recommend eye therapy sessions, vision therapy equipment, and progress reports. The Applicant submits that these plans are submitted due to her post-concussive symptoms. Specifically, the Applicant submits that she has right eye difficulties, is aggravated by lights, has visual motion sensitivity accommodation and convergence inefficiency, which can cause her to be nauseous. She submits that the treatment will improve her function, including at work, and help with her poor flexibility and reduced amplitude of her accommodative skills.
36I find that the Applicant has met her onus to demonstrate that these plans are reasonable and necessary as a result of the accident. The CNRs by Dr. K. Dolman, optometrist, indicate that since the accident the Applicant was sleeping less than usual, had increased sensitivity to light and noise, increased headaches, poor flexibility and overall reduced amplitude of her accommodative skills, oculomotor dysfunction and convergence insufficiency, and inefficient communication within the visuo-vestibular system. The recommended eye therapy aims to help improve these reported symptoms. The symptoms are also noted in the CNRs of Dr. S. Singh, family physician, during visits on September 14 and 27, 2022. I have not been directed to any other information that would cause me to discount the Applicant’s vision complaints to Dr. Singh, or question Dr. Dolman’s recommendation.
37Accordingly, I find that the Applicant is entitled to these plans, plus applicable interest pursuant to section 51 of the Schedule.
$2,507.50 for occupational therapy services proposed by Creative Therapy, plan dated September 15, 2022
38I find that the Applicant has not demonstrated on a balance of probabilities that this plan is reasonable and necessary as a result of the accident.
39This plan seeks funding for in-home and at-work assessments to reduce pain and return to activities of normal living and pre-accident work activities.
40I find that the Applicant has not demonstrated that she suffers from post—concussion symptoms which warrant occupational therapy assessments. While it is true the Applicant was diagnosed with a concussion and post-concussion syndrome, she has not directed me to evidence indicating that her symptoms are interfering with her in-home and at-work activities. She has not included the CNRs from this service provider and relies solely on the Rivermead Post Concussion symptoms questionnaire documented in the plan. However, the questionnaire does not indicate that in-home and at-work OT assessments are reasonable and necessary as a result of the accident.
41Accordingly, I find that the Applicant is not entitled to this plan.
$2,200.00 for a psychological assessment plan by Apex Health Network, dated February 22, 2024, and $3,416.58 (less $2,892.98 approved by the Respondent) for psychological services proposed by Apex Health Network, plan dated April 8, 2024
42I find that the Applicant has not demonstrated that the plans for a psychological assessment and the unapproved balance of the treatment plan are reasonable and necessary as a result of the subject accident. I find that the Applicant has not demonstrated a causal connection between the goods and services proposed in these plans and the subject accident.
43The plan, dated February 22, 2024, seeks funding for a psychological assessment. This plan was denied in full. The plan, dated April 8, 2024, seeks funding for 14 psychological treatment sessions, 15 minutes of preparation fees associated with each session, a progress report, and documentation fees. The Respondent submits that this plan was partly approved, up to $2,892.98, leaving the planning fees unapproved.
44I give no weight to the report of K. Bernstein, psychotherapist, supervised by Dr. A. Bodnar, psychologist, dated March 1, 2024. I find that this report provides no analysis regarding the injuries sustained in the subject accident, versus the second accident. This is important because the Applicant, in an examination under oath, dated September 12, 2024, stated that she felt like she was getting better from the first accident prior to the second accident, and that the injuries she had were worse. Upon review of the report, there is virtually no mention of the January 8, 2023 accident and the injuries the Applicant sustained in that accident, and no comparison or contrast to the injuries sustained in the subject accident. I am unable to rely on psychotherapist Bernstein’s report because there is no differentiation between the injuries sustained in the subject accident and the January 2023 accident.
45I query why the CNRs of the Applicant’s treating psychiatrist are absent from the evidence. Psychotherapist Bernstein notes that the CNRs from the Applicant’s treating psychiatrist were reviewed as part of the assessment, but the report includes no discussion about those records and how they support a diagnosis of a Major Depressive Disorder, Somatic Symptoms and Related Disorders, as well as vehicular phobia as a result of the subject accident. The Applicant’s treating psychiatrist is in the best position to address the Applicant’s function and any change to it over time. I am unable to see how or why the records are relevant enough for review for a report, but not relevant for this hearing.
46The CNRs from Dr. Singh, the Applicant’s family physician, do not include complaints of a psychological nature until after the January 8, 2023 accident. The CNRs include virtually no complaints of a psychological nature during the period from the date of the first accident on April 20, 2022, until the second accident, on January 8, 2023. This suggests that the Applicant did not suffer from any significant psychological impairment as a result of the subject accident. The Applicant met with Dr. Singh again on January 23, 2023, and the CNRs from that visit note that she recently saw her psychiatrist and started Prozac. Dr. Singh advised the Applicant to follow the advice of her psychiatrist but as noted, any such recommendations are not before me. Similarly, the Applicant was noted to be anxious during a visit with Dr. Singh on March 1, 2023, further pointing to a finding that her psychological symptoms evolved following the second accident and are not causally connected to the subject accident.
47Lastly, I find that the Applicant has not met her onus to demonstrate that she is entitled to the plan dated April 8, 2024, due to the Respondent’s failure to respond to the plan. Pursuant to section 38(8) of the Schedule, the Respondent is obliged to respond to a plan within 10 business days and give the medical and other reasons for the denial. Here, the Applicant claims that the Respondent never issued a denial for the plan, dated April 8, 2024. Yet, in responding submissions, the Respondent submitted the letter, dated June 7, 2024, which identifies the plan by date, amount, and service provider. In the letter, the Respondent partly approved the plan, denying only the fees for planning, as they are covered in the service provider’s hourly rate. I acknowledge that the letter refers to the Applicant’s claim with respect to the January 8, 2023 accident. However, insurers are not held to a standard of perfection, and I find that this does not detract from the overall message of the letter – that the plan is approved but for the planning fees, which are covered in the service provider’s hourly rate.
48Accordingly, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that the psychological plans are reasonable and necessary as a result of the accident.
$3,092.83 for occupational therapy services proposed by KW Rehabilitation, plan dated May 7, 2024, and $1,900.00 related to a plan, dated January 24, 2024
49I find that the Applicant has not demonstrated on a balance of probabilities that these plans for occupational therapy services are reasonable and necessary as a result of the subject accident.
50The plan, dated January 24, 2024, seeks funding for an in-home occupational therapy assessment and the production of a Form-1, outlining the amount of attendant care required. The plan dated May 7, 2024, seeks funding for six 2-hour OT sessions, 1.5 hours of travel time for each session, ten 30-minute training sessions, and fees for documentation and forms.
51The Applicant submits that the plans will help improve her pain and tolerance, look at recommendations for equipment, assess her ability to prepare meals and take care of her home. She highlights that she sustained a concussion and suffers from neck and back injuries, visual disturbances, dizziness, irritability, concentration issues, anger outbursts, and is generally unable to return to work. The Respondent submits that the January 8, 2023 accident broke the chain of causation, and implies that the impairments or injuries that these plans seek to address are related to that accident, and not the subject accident of April 20, 2022.
52I find that the Applicant has not provided contemporaneous evidence to support a finding that these plans are proposed in response to the subject accident.
53The Applicant has not directed me to evidence in support of this plan, and I have found virtually no support for the plans in the evidence. For example, the CNRs from Planet Health, one of the treatment facilities the Applicant attends at, has contemporaneous records but there is no discussion of OT intervention after October 13, 2022. At most, there is reference to childcare assistance in these records, which the plans are not set to address. The March 1, 2024 report by psychotherapist Bernstein, does not address OT intervention. Similarly, there is no recommendation for OT intervention from Dr. Singh, or other physicians that are contemporaneous with the 2024 plans. The CNRs from BodyTech physiotherapy refer to OT intervention, but it is always attributed to injuries sustained in the January 8, 2023 accident. The CNRs from BodyTech are consistent with the Respondent’s position that the Applicant’s impairments are causally related to the January 8, 2023 accident, instead of the subject accident of April 20, 2022. This is also consistent with the opinion of Dr. S. M-W. Tu, family physician, in the IE report, dated April 10, 2024, which found that the Applicant’s impairments were related to the 2023 accident instead of the 2022 accident.
54Likewise, I give no weight to the report by OT A. McHaffie, dated April 1, 2024. This report stems from the OT assessment plan in dispute. It attributes the Applicant’s impairments entirely to the subject accident, and there is no analysis on the difference between the two accidents. As noted, this is important given that the Applicant reported that she was improving from the subject accident, but everything worsened due to the second accident.
55Accordingly, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that these plans are reasonable and necessary as a result of the accident.
$1,525.50 for a nutritional assessment plan by R. Zhang, dated November 24, 2022
56I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that this plan is reasonable and necessary as a result of the accident.
57The plan proposes a nutritional assessment to be conducted by dietician R. Zhang. According to the notes in the plan, it was proposed because the Applicant was skipping meals, eating aporetically during the day, and has decreased appetite, and increased sugar cravings. The Respondent denied this plan on the basis that the Applicant sustained a minor injury, and that the plan proposes goods and services that are not included in the MIG.
58The Applicant has not directed me to any evidence to support a finding that this plan is reasonable and necessary. Instead, the Applicant relies on the information in the plan, noted above. She has not provided the clinical notes and records (“CNRs”) from the treatment facility to determine why the recommendation was made. Likewise, the Applicant’s other medical records do not address her dietary needs, and how any impairment to her diet is related to the subject accident.
59Accordingly, I find that the Applicant has not met her onus to demonstrate that this plan is reasonable and necessary as a result of the accident.
$3,039.80, submitted via OCF-6 dated, August 15, 2022, and $2,671.38, submitted via OCF-6, dated February 15, 2023.
60I find that the Applicant has not met her onus to demonstrate entitlement to the expenses claimed in claims forms dated August 15, 2022, and February 15, 2023.
61The claims related to a neuro-visual examination and treatment, chiropractic and acupuncture therapy, naturopathic doctor’s fees, supplements, social worker assistance, and an audiology examination. The Respondent paid the claims related to chiropractic care, subject to the maximum hourly rate of $112.81. Likewise, it paid the claims for acupuncture, subject to the maximum hourly rate of $58.19. The remaining items were denied because they were incurred prior to submitting a plan, pursuant to section 38(2) of the Schedule, or because there was no evidence indicating that the expenses were as a result of the accident.
62With respect to the expenses, I first note that some of the expenses appear to relate to the optometric plans in dispute, which I have found to be reasonable and necessary as a result of the accident. Accordingly, those expenses are addressed in those plans and payable once incurred.
63With respect to the neuro-visual examination, social worker services, neurological treatment, audiology treatment, and occupational therapy services, I agree with the Respondent that they are not payable because they were incurred prior to the Applicant submitting a plan for the expenses. Section 38(2) of the Schedule is clear that such services must be submitted in a plan first because they do not fall within the exceptions listed – the Respondent never agreed to pay them without a plan, none of the expenses were provided on an emergency basis, and none of the items are drugs prescribed by a regulated health professional.
64I find that the Applicant has not demonstrated that the supplements claimed are reasonable and necessary as a result of the accident. The Applicant has not directed me to evidence demonstrating that the supplements were prescribed as a result of the accident. While the Applicant suggests that they were prescribed by her naturopathic doctor, the CNRs from that practitioner do not refer to supplements and do not include a recommendation for supplements. Similarly, the Applicant has not demonstrated what the supplements are, nor what accident-related injury or impairment that they were prescribed to address. I am unable to find the supplements reasonable and necessary as a result of the subject accident without this information.
65Accordingly, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that these expenses are payable under the Schedule.
IRBs
66I find that the Applicant has not demonstrated that, as a result of the accident, she suffers a substantial inability to complete the essential tasks as an insurance adjuster.
67To receive IRBs under section 5(1) of the Schedule, the Applicant must demonstrate that she suffers from a substantial inability to perform the essential tasks of her pre-accident employment. After two years following the accident, the test for entitlement becomes more strict and under section 6 of the Schedule, requires her to demonstrate that she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by way of education, training, or experience.
68According to the Applicant, she is unable to work due to the cognitive and physical impairments sustained in the accident, and she submits that she has recently been approved for Canada Pension Plan - Disability. However, the Applicant has not led any evidence regarding her employment and the essential tasks of it. The Respondent submits that the Applicant’s time off work is due to her pre-existing issues, unrelated to the subject accident. It highlights that the Applicant was on leave from work at the time of the accident and started a gradual return to work program after the accident occurred. It takes the position that the Applicant started to endorse more severe symptoms only once her leave started to end and has since received short-term disability, and is now on long-term disability, and that these impairments pre-date the subject accident.
69I find that the Applicant has not demonstrated that the subject accident has caused her to be substantially unable to complete the essential tasks of her employment. As highlighted throughout this decision, the Applicant has a significant medical history which includes symptoms like the ones that she currently suffers from. She was on medical leave at the time of the accident and managed a gradual return to work following the accident. This would suggest that the Applicant’s accident-related symptoms are not of a severity to impair her ability to work. Likewise, her discussion with Dr. Singh regarding a potential return to work prior to the January 2023 accident suggests that if she had accident-related impairments which impaired her ability to work, those impairments were not at a severity to preclude her employment at the time of the second accident on January 8, 2023.
70The Applicant has not directed me to evidence of a medical practitioner who finds that she is substantially unable to complete her essential tasks of employment as a result of the accident. The Applicant refers to concussion-related complaints, but the records she refers to do not differentiate whether the symptoms were as a result of the accident or due to her pre-existing issues. Similarly, the records are unclear to me whether the symptoms reported by the Applicant amount to a substantial inability to complete the essential tasks of a claims adjuster, particularly as the Applicant has not identified what the essential tasks of her employment were.
71Accordingly, I find that the Applicant has not demonstrated that she suffers a substantial inability to complete the essential task of her employment as a claims adjuster.
72Given that the applicant must apply and establish a substantial inability within the first 104-week period to qualify for post-104 week IRBs, it follows that the applicant has not established entitlement to post-104 week IRBs under the more stringent section 6 test.
ACBs at the monthly rate of $1,449.05 for the period from May 8, 2024, ongoing
73I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that she requires ACBs as a result of the subject accident.
74According to the Applicant, she should be entitled to ACBs because her parents take care of her. She does not direct me to any evidence to support her claim for ACBs. Instead, the Applicant submits that ACBs should be deemed incurred because they were unreasonably withheld or delayed due to the Respondent subjecting her to the MIG. The Respondent submits that the Applicant, by proceeding with similar claims for similar ACBs related to separate accidents, is “double-dipping”. It submits that the Applicant’s claim for ACBs occurred after the intervening event of the 2023 accident, and over two years after the subject accident. The Respondent further submits that ACBs are not reasonable and necessary for the Applicant as a result of the subject accident because she was at or near her baseline, pre-accident level.
75I find no compelling evidence to support a finding that the Applicant requires ACBs as a result of injuries and impairments caused by the subject accident. As noted, causation is at issue given that the Applicant was involved in two accidents and claims similar injuries from both accidents, which are also like her pre-accident complaints. The Applicant has not directed me to any evidence demonstrating that she was functionally impaired and in need of assistance following the 2022 accident and before the 2023 accident. The Applicant has not directed me to any evidence indicating that her parents take care of her due to injuries sustained in the subject accident. My review of the records for the period following the subject accident and before the January 8, 2023 accident, such as those from Dr. Singh, the Applicant’s family physician, finds no indication that the Applicant is impaired from completing her activities of daily living or personal care. Thus, I am unable to find a causal connection between the subject accident and the Applicant’s claim for ACBs in 2024.
76Of the evidence relied upon by the Applicant, namely the March 14, 2024 Form-1 by OT McHaffie, I find that is not an accurate representation of the Applicant’s functionality as a result of the subject accident. This assessment and report occurred nearly two years after the subject accident, and after the 2023 accident which the Applicant described as making things worse. The report by OT McHaffie does not indicate that it is a retroactive assessment or that it considered the Applicant’s functionality impairments as a result of the subject accident, and instead addresses the Applicant’s current functionality, not at the time prior to the January 8, 2023 accident.
77I decline to find that the Applicant’s claim for ACBs was unreasonably withheld or delayed. While I agree that the Respondent ought to have considered her injuries to be non-minor, I find that the position did not lead to the unreasonable withholding or delayed payment of ACBs. This is because the Applicant never sought ACBs, or services adjacent to ACBs such as an in-home assessment, until nearly two years after the subject accident, and more than a year after the January 8, 2023 accident. She claims that the MIG funding limit was a barrier to obtaining ACBs however, she nevertheless obtained an in-home assessment and Form-1 while the Respondent maintained that her injuries were minor. Similarly, as noted previously when addressing the Applicant’s entitlement to the expenses outlined in the claims forms, she has demonstrated that the MIG and funding are not barriers to her obtaining healthcare services as she incurred services prior to submitting plans . Together, these factors undermine the Applicant’s claim that she could not incur the benefit because she was subject to the MIG and the $3,500.00 funding limit for a minor injury.
78Accordingly, I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that she is entitled to ACBs as a result.
Interest
79Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to the plans by Dr. Dolman, dated September 7, and November 30, 2022, it follows that she is also entitled to interest on any overdue payments related to these plans, pursuant to section 51 of the Schedule.
Award
80I find that the Applicant is entitled to an award of 25% of the amounts withheld that relate to the plans submitted by Dr. Dolman, dated September 7 and November 20, 2022, plus interest.
81The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
82The Applicant claimed entitlement to an award because the Respondent maintained that she sustained a minor injury, because it allowed the IE assessors to comment on her January 8, 2023 accident, and because it didn’t send the Applicant to the “appropriate assessor(s)”. The Applicant did not specify the percentage of award she seeks.
83The Respondent submits that it has acted in the utmost good faith, despite the lack of participation from the Applicant. It submits that it consistently reviewed available evidence, seeking out further evidence through IEs because, according to the Respondent, the Applicant failed to submit her own, relevant and legible records.
84I find that the Respondent unreasonably withheld or delayed payment of the plans submitted by Dr. Dolman when it maintained that the Applicant’s injuries are a minor injury, despite receiving the hospital records which diagnosed the Applicant with a concussion. While the Respondent may be skeptical of the severity of the Applicant’s injuries, it cannot reject uncontroverted evidence of a non-minor injury, such as a diagnosis of a concussion by emergency room physicians. To me, this demonstrates that the Respondent acted in a manner which was inflexible or unyielding, which an award is meant to discourage.
85I find that an award of 25% of the amounts withheld is reasonable considering the circumstances. Here, the Applicant did not provide the hospital records, or her consent to obtain those records in a timely manner. In fact, the Respondent did not receive the hospital records until November 2022, over six months after the accident. Additionally, the Applicant delayed seeking medical attention following the accident and there is a considerable overlap between the Applicant’s pre-existing condition and her accident-related complaints. The delay and overlap in symptoms make it difficult to determine the Applicant’s accident-related injuries apart from her pre-existing injuries. Thus, it wasn’t unreasonable for the Respondent to seek additional information on the extent of the Applicant’s injuries. Where the Respondent erred is when it maintained it’s position on the application of the MIG upon receiving the hospital and other records, which confirmed that the Applicant sustained a concussion in the accident.
CONCLUSION AND ORDER
86The Applicant withdrew her claim for entitlement to expenses submitted on an OCF-6, dated September 1, 2022. The issue is no longer in dispute.
87The Applicant sustained a concussion as a result of the accident, which is not a minor injury, and is not subject to the MIG or the $3,500.00 funding limit for a minor injury.
88The Applicant is not entitled to IRBs as a result of the subject accident.
89The Applicant is not entitled to ACBs as a result of the subject accident.
90The Applicant is entitled to the following plans because she has demonstrated that they are reasonable and necessary as a result of the subject accident:
i. The plan by Dr. Dolman, dated September 7, 2022, in the amount of $3,220.00; and
ii. The plan by Dr. Dolman, dated November 30, 2022, in the amount of $3,220.00.
91The Applicant has not met her onus to demonstrate entitlement to the remaining plans in dispute.
92The Applicant is not entitled to the expenses submitted on claims forms, dated August 15, 2022, and February 16, 2023.
93The Applicant is entitled to interest on the plans proposed by Dr. Doman, dated September 7 and November 30, 2022.
94The Applicant is entitled to an award of 25% of the amounts withheld that relate to the plans submitted by Dr. Dolman, dated September 7 and November 20, 2022, plus interest.
Released: April 24, 2026
__________________________
Brian Norris
Vice-Chair