Licence Appeal Tribunal File Number: 24-013230/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:
Leah Wolfe Applicant
and
Pafco Insurance Company Respondent
DECISION
ADJUDICATOR: Sarah Guergis
APPEARANCES:
For the Applicant: Glen B. Cox, Paralegal
For the Respondent: Diana Oliveira, Counsel
HEARD: In Writing
OVERVIEW
1Leah Wolfe, the Applicant, was involved in an automobile accident on May 17, 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, Pafco Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The Applicant was born on December 6, 2004, and was 14 years old at the time of the accident. The Applicant was a minor until December 6, 2022.
ISSUES
3The issues in dispute are:
i. Is the Applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from January 6, 2023, to December 6, 2024?
ii. Is the Applicant entitled to services proposed by Complete Rehab Centre in treatment plans/OCF-18s (“plan”) as follows:
a) $2,402.30 for an attendant care assessment, submitted December 20, 2023, and denied January 3, 2024?
b) $7,567.88 for driving reintegration services, submitted July 25, 2024, and denied August 6, 2024?
c) $3,218.14 for psychological services, submitted December 31, 2024, and denied January 14, 2025?
iii. Is the Respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?
iv. Is the Applicant entitled to interest on any overdue payment of benefits?
4The Applicant submits that the correct period of entitlement for NEBs in this proceeding is June 15, 2019, to May 17, 2021.
5Further, that any prior reference to a different period, such as January 6, 2023, to December 6, 2024, is incorrect and is hereby withdrawn. This correction aligns with the evidentiary record, including the OCF-3, submitted on April 6, 2022, and reflects that the Applicant was a minor until December 6, 2022, based on the Applicant’s application filed.
6The Respondent asks that the Tribunal not consider this amendment to the NEB issue in dispute because the Respondent is entitled to know the case that it must meet and if the Applicant keeps changing the goal posts it makes that impossible. Further, that the Applicant could have, and should have, filed a motion before the LAT to amend the NEB time period in dispute and it is improper to have done this in her written submissions.
7The Applicant further submits that this clarification does not alter the issues before the Tribunal and creates no prejudice to the Respondent, as it merely ensures accuracy and consistency with the evidence already filed, including the OCF-3 and the insurer’s denial correspondence.
8I agree with the Respondent that the Applicant’s request to amend the time period in dispute for the NEB issue was not raised properly, (for example, at the case conference or by way of motion). The case conference conducted on February 10, 2025, lists the NEB time period as January 6, 2023, to December 6, 2024. The Applicant made no submissions regarding the time period in the case conference report and order, nor did they file a motion, or attempt to contact the Tribunal to amend this time period.
9I find that changing the time period in dispute is a substantial change to the issue of the NEB and to allow it to be done once the hearing has commenced is not procedurally fair to the Respondent.
10Therefore, the time period for the NEB issue in dispute will remain as it was listed in the case conference report and order.
RESULT
11I find that the Applicant is entitled to NEBs in the amount of $185.00 per week from January 6, 2023, to December 6, 2024.
12I find that the plan for psychological services is payable.
13I find that the other plans in dispute are not payable.
14I find that interest is owing on the payable plan in dispute.
15I find that no award is owing.
ANALYSIS
Non-Earner Benefits
Limitation issue for NEBs
16I find that because the issue of a limitation period for the NEBs was not raised properly, (for example, at the case conference or by way of motion), it will not be considered.
Entitlement to NEBs
17I find that the Applicant is entitled to NEBs for $185.00 per week from January 6, 2023, to December 6, 2024.
18Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which, generally, focuses on a comparison of the Applicant’s pre- and post-accident activities.
Pre-Accident activities
19The Applicant submits that she has been substantially prevented from engaging in all of the activities in which she ordinarily engaged prior to the accident, thereby satisfying the legal test for entitlement to NEBs under s.12 of the Schedule.
20The Applicant submits that prior to the accident, she was in good health, and prior to the accident, she led an active and well-rounded lifestyle that included school, sports, social activities, hobbies, and family responsibilities. She was a healthy, engaged Grade 9 student who regularly participated in:
a) Academics: Attending full-time school with good attendance and strong grades;
b) Extracurricular Activities: Participating in sports such as soccer, volleyball, and badminton;
c) Social Life: Spending time with friends, attending gatherings, religious services, going to the mall with her friends, and enjoying family outings; and
d) Daily Responsibilities: Assisting with household chores, including cleaning, mopping, laundry, and grocery shopping.
Post-Accident condition and activities
21The Applicant submits that as a direct result of the accident, she has experienced the following impairments:
a) Physical Impairments: Persistent headaches; neck, shoulder, and lower back pain; dizziness, mobility restrictions; insomnia; numbness and weakness; and episodic paresthesia along the C5, C6, and T1 dermatomes, typically lasting 15 20 minutes.
b) Cognitive Impairments: Memory deficits; disorientation while driving; difficulties with focus and concentration, increased frequency of misplacing items, difficulty recalling conversations or information read, and frequent failure to complete schoolwork.
c) Psychological Impairments: Anxiety, depression, post-traumatic stress disorder (PTSD) symptoms, and photo/phonophobia (sensitivity to light and sound).
22The Applicant submits that these impairments are documented in the OCF-3 dated April 6, 2022, and corroborated by treating physician clinical notes and records (“CNRs”), specialist medical reports, and occupational therapy functional assessments.
23The Applicant submits that she has been prevented from participating in her pre-accident activities including:
a) Sports and Recreation: She ceased participation in soccer, badminton, basketball, and volleyball (both at school and in other structured activities) due to ongoing pain and physical limitations. This represents a complete loss of her ability to participate in physical and recreational pursuits that previously formed a central part of her life.
b) Academic Performance: Her academic marks declined and became inconsistent, dropping from consistent 100% grades to the high 70s and low 80s. This decline illustrates her inability to sustain her pre-accident academic functioning & demonstrates a material impairment in her primary role as a student.
c) School Functioning: Although she continued attending classes, she was frequently unable to complete assignments on time, struggled to concentrate during lessons, and found it difficult to meet deadlines. She became easily sidetracked, experienced lapses in memory, and often forgot to complete schoolwork. These restrictions directly interfere with her ability to perform the core tasks of her daily student responsibilities.
d) Daily Living: She required assistance with basic daily activities such as laundry (due to lifting and bending restrictions) and grocery shopping, both of which aggravated her pain. This loss of independence demonstrates a significant restriction in her ability to manage normal household and personal tasks.
e) Travel and Community Involvement: She developed anxiety about being in a car, resulting in avoidance of grocery shopping and reluctance to travel, which limits her ability to participate in normal (pre-accident) community and family activities.
f) Social Engagement: She withdrew from peer social activities, largely due to pain, fatigue, and emotional distress, leading to reduced socialization and isolation. This reflects a loss of her ability to maintain social relationships and to participate in normal teenage social life.
24The Applicant relies on CNRs from her family doctor Dr. Jennifer McDonald, from 2017 to 2025. These CNRs note that the Applicant had no issues with sleep or mood, enjoyed school and had close friends, prior to the accident.
25Post- accident, these CNR’s note that the Applicant has chronic migraines, pain with fainting, back pain, anxiety, and insomnia.
26The Applicant visited Dr. McDonald three times in September 2019 following the MVA and was prescribed pain medication. It appears that in 2021 and 2022 this prescription continued to be renewed and in 2022 the Applicant reported that her pain was ongoing since the subject accident. The Applicant further reported anxiety and panic attacks.
27In 2025, the CNR’s from Dr. McDonald, continue to reflect chronic back pain, the continued use of pain medication and the need for physiotherapy.
28The Applicant further relies on a psychological report dated March 7, 2024, conducted by Alana Papais, registered psychotherapist. This report notes the Applicant’s impairments including:
a) Functional Restrictions: Difficulty with lifting, bending, sitting, standing, walking long distances, and completing ADLs such as dressing, bathing, grooming, and household chores; and
b) Psychological Symptoms: Sleep disturbances, low energy, irritability, frequent crying, frustration, social withdrawal, and loss of interest in previously enjoyed activities.
29Ms. Papais, concluded that the Applicant’s impairments significantly limit her daily living, academic functioning, and social independence, preventing her from engaging in substantially all pre-accident activities.
30The Applicant further relies on a chronic pain report dated September 14, 2024, by Dr. Grigory Karmy, chronic pain specialist.
31Dr. Karmy emphasized that the Applicant’s post-accident impairments extend beyond the physical sphere and significantly impact her mental functioning. His report confirms that the Applicant continues to experience persistent pain, functional limitations, and psychological distress, supporting her inability to fully engage in her pre-accident activities.
32The Respondent submits that the Applicant does not meet the criteria for the determination of entitlement to NEBs as set out in Heath.
33The Respondent submits that the Applicant received minimal medical treatment and waited 3 months after the accident to receive “hands on treatment” and 6 months to see a doctor. Further, she didn’t report her accident-related injuries to her doctor until August 2021.
34The Respondent requests that minimal weight be given to the Applicant’s submissions regarding what she used to do before the accident as there are no records of these things in the documents provided.
35I find the Applicant has met her onus to demonstrate the complete inability to carry on a normal life. The Applicant has clearly outlined her pre-accident activities and baseline such as enjoying school, having close friends, and no issues with pain, sleep or mood. Post-accident, she has demonstrated challenges with pain, her ability to perform the core tasks of her daily student life, household tasks, and participating in activities with friends and family. These challenges are evidenced by CNRs from her family doctor pre- and post-accident, as well as a chronic pain report, and a psychological report.
36I acknowledge the Respondent’s submissions regarding the Applicant’s evidence, the nature of her treatment and how long she waited to report her symptoms to her doctor.
37I find that the timing between the accident and the Applicant’s reports are reasonable considering that her core concerns involve issues which would take a substantial amount of time to establish, for example, challenges with school and social activities.
38Further, I find that the Applicant’s medical evidence (CRNs, chronic pain report, and psychological report), are reasonable and sufficient in establishing ongoing challenges post-accident. The Applicant’s family doctor has observed the changes in her condition as reflected in their CNRs from 2017 to 2025 (pre- and post-accident). Specifically, throughout the NEB time period (January 6, 2023, to December 6, 2024).
39I find that the Applicant has demonstrated consistent reporting of chronic back pain in addition to the use of pain medication. I prefer the 2024 report from Dr. Karmy, as he is a chronic pain specialist and can effectively speak to the Applicant’s reports of chronic back pain as a result of the subject accident. He performed a physical assessment and took the Applicant’s history, medical background and supporting documents into consideration. Dr. Karmy diagnosed the Applicant with several impairments as a result of the subject accident including chronic mechanical lower back pain, likely originating from the lumbar discs and/or facet, sleep disorder, adjustment disorder with mixed anxiety and depressed mood, which aligns with the Applicant’s family doctor CNRs as well as her ongoing use of pain medications.
40Dr. Karmy also states that according to his experience in the chronic pain field, given the Applicant’s impairments as a result of the accident, the prognosis for her full recovery, functional restoration and becoming pain-free, is poor.
41I find that, on a balance of probabilities, the Applicant has demonstrated a complete inability to carry on a normal life.
42Therefore, I find the Applicant is entitled to NEBs in the amount of $185.00 per week from January 6, 2023, to December 6, 2024.
Is the Applicant entitled to a plan for $2,402.30 for an attendant care assessment?
43I find that this plan is not payable.
44To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the Applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the Applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
45The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
46The Applicant submits that she is entitled to the attendant care assessment under s. 25(2) of the Schedule. The Applicant submits that the Tribunal has repeatedly recognized that psychological injuries can warrant attendant care benefits (ACB) where supported by evidence of functional impairment.
47The Applicant submits that the Respondent’s reliance on Dr. Oshidari’s, MD, physical medicine and rehabilitation specialist assessment report, is outdated as it was completed before the Applicant was removed from the minor injury guideline (“MIG”).
48Further, that once removed from the MIG, an attendant care assessment became necessary, as confirmed by Dr. Jacqueline Brunshaw, psychologist, who documented difficulties with dressing, grooming, and household tasks.
49The Respondent submits that there is no evidence that the Applicant was having any issues with her functionality that would have necessitated an attendant care assessment.
50The Respondent relies on a report from Dr. Oshidari dated May 20, 2021. Dr. Oshidari commented that in his opinion the Applicant did not require any assessment or investigation because he found the Applicant did not have any impairments.
51I find that the case law that the Applicant has pointed me to demonstrates MIG removal based on pre-existing conditions, rather than establishing that an attendant care benefit assessment is reasonable and necessary based on the facts of the case.
52Further, I find that the Applicant has not pointed me to evidence which would establish that there are grounds that she would require an attendant care assessment. I acknowledge the Applicant’s submission that the Tribunal confirmed that attendant care benefits may be warranted for psychological injuries. However, this is not a compelling or sufficient basis to establish the reasonableness and necessity of this specific plan. Nor do I find that I was pointed to the grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
53Therefore, on a balance of probabilities, I find this plan is not reasonable and necessary.
Is this Applicant entitled to a treatment plan for $7,567.88 for driving reintegration services?
54I find that this plan is not payable.
55The treatment plan was submitted by Dr. Leon Steiner, psychologist. He recommended 12 sessions of mental therapy plus OCF-18 completion, travel, and a progress report. He lists pain reduction, return to activities of daily living, and return to pre-accident level of psychological functioning as the goals of treatment.
56The Applicant relies on the findings of Dr. Brunshaw, Dr. Steiner, and Dr. Monique Costa El-Hage, psychologist, and submits that they all documented significant psychological impairment, functional limitations, and the need for structured intervention. Further, that these reports are supported by clinical records and evidence of ongoing struggles with daily living, academics, and driving anxiety.
57The Respondent submits that there is nothing to support any complaints with respect to driving or being in a vehicle in the medical records provided as set out in the explanation of benefits (“EOB”) dated August 6, 2024. Further, the treatment plan submitted for driver reintegration services noted that the goals were for pain reduction, and there is no mention of the goal of treatment involving the Applicant’s return to driving or feeling more comfortable in and around a vehicle.
58The Respondent relies on a psychological report dated November 8, 2024, by Dr. Ricardo J Harris, psychologist. Dr. Harris opined that the treatment plan was not reasonable or necessary and that the Applicant no longer met a DSM-IV diagnosis.
59I find that the Applicant has not met her onus to establish why this plan is reasonable or necessary, or how the goals of treatment align with her ongoing needs and injuries, or why the overall costs of achieving these goals are reasonable. While I acknowledge that the Applicant has psychological diagnoses including anxiety, it is not clear how the goals of this plan would be met or why the costs are reasonable. Further, I agree with the Respondent that complaints of driving-related anxiety do not clearly align with the Applicant’s evidence.
60Therefore, on a balance of probabilities, I find this plan is not reasonable or necessary.
Is the Applicant entitled to a treatment plan for psychological services?
61I find that this plan is payable.
62The goals identified in this plan include returning to activities of normal living as well as decreasing psychological impairments including symptom management, increased affect regulation, coping skills, cognitive restructuring, increased capacity for self- soothing and self-regulation, concrete behavioral change and pain management and sleep enhancement techniques.
63The Applicant submits that this plan is reasonable and necessary because it is supported by clinical records and evidence of ongoing struggles. Further, that the Respondent’s denial of this plan conflict with consistent findings from Doctors Brunshaw, Steiner, and Costa El-Hage, documenting significant psychological impairment and functional limitations.
64The Respondent submits that this plan was completed and submitted by a chiropractor; not a psychologist. It further submits that an explanation of benefits (“EOB”) dated January 14, 2025, determined that the Applicant no longer meets the DSM-IV diagnosis and therefore the treatment plan is not deemed reasonable or necessary.
65I find the Applicant has met her onus to establish the reasonableness or necessity of this plan because her reports of anxiety to Dr. McDonald, as well as the diagnosis of psychological impairments are consistent with the reports of Doctors Brunshaw, Steiner, and Costa El-Hage. Further, I find that the goals identified in this plan are clear, reasonable, and align with the Applicant’s evidence.
66Therefore, on a balance of probabilities, I find this plan is reasonable and necessary.
Interest
67I find that interest is owing on the payable plan in dispute.
Award
68I find that no award is owing.
69The Applicant submits that she is entitled to an award under the Schedule, as the Respondent failed to adjust her claim in good faith. The Applicant made no further submissions. Nor did they provide reply submissions.
70I find that the Applicant has not met her onus to establish that the Respondent wrongfully withheld or denied payments.
71Therefore, no award is owing.
ORDER
72I find that the Applicant is entitled to NEBs in the amount of $185.00 per week from January 6, 2023, to December 6, 2024.
73I find that the plan for psychological services is payable.
74I find that the other plans in dispute are not payable.
75I find that interest is owing on the payable plan in dispute.
76I find that no award is owing.
Released: May 8, 2026
Sarah Guergis Adjudicator