Licence Appeal Tribunal File Number: 24-015311/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:
Natalja Pukite
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Ilya Kirtsman, Counsel
For the Respondent:
Sabrina Lucibello, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Natalja Pukite, the applicant, was involved in an automobile accident on March 1, 2021, 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.
ISSUES
2The issues in dispute are:
- Is the applicant entitled to medical services proposed by Function Ability Rehabilitation Services, as follows:
i. $761.80 for home devices and equipment, in a treatment plan/OCF-18 (“treatment plan”) submitted April 17, 2024;
ii. $3,042.15 for a Sleep Country sleep system, in a treatment plan submitted April 17, 2024;
iii. $2,039.92 for workplace modifications and devices, in a treatment plan submitted April 17, 2024;
iv. $1,123.53 for home modifications and devices, in a treatment plan submitted April 17, 2024; and
v. $925.75 for home modifications and devices, in a treatment plan submitted April 17, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew the following issues as set out in the Case Conference Report and Order (‘CCRO”):
Issue #1(vi) for an audiometric and speech language pathology assessment in a treatment plan submitted on April 26, 2024,
issue #1(vii) for an insurance standard invoice (“OCF-21”) submitted on September 13, 2023, and
Issue #2 for a neuropsychological assessment in a treatment plan dated June 19, 2024.
Accordingly, I have removed these issues from the issues in dispute.
RESULT
4I find that:
The applicant is not entitled to the treatment plans in dispute.
As no payments are owing, no interest is due.
The applicant is not entitled to an award.
The application is dismissed.
PROCEDURAL ISSUE
1In her reply submissions, the applicant requested that I exclude a portion of the respondent’s evidence. Specifically, the applicant submits that the applicant’s submissions from a to a separate Tribunal matter (Tribunal File No. 24-
2012653/AABS) pertaining to a different accident which occurred in June 2022, are not admissible, are not admissible.
3In its submissions, the respondent submits that the applicant signed an authorization to share the documents from the June 19, 2022 accident file for investigative or adjudicative purposes. However, I find that the letter authorizes the use of documents pertaining to the March 21, 2021 accident, and does specify that the applicant is authorizing the use of the June 19, 2022 accident file.
4As a result, I have not considered the applicant’s submissions from Tribunal File No. 24- 012653/AABS in my reasoning.
ANALYSIS
5To 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.
Is the applicant entitled to $761.80 for home devices and equipment, in a treatment plan submitted April 17, 2024?
6I find that the applicant has not met her onus to prove on a balance of probabilities that the April 17 treatment plan for home devices and equipment is reasonable and necessary.
7The goals of the treatment plan, prepared by Katrina Chalova, occupational therapist are: pain reduction, increase in strength, increase range of motion, improve quality of sleep and address collision related symptoms of anxiety, improve mood by providing art therapy tools, and assist with return to activities of normal living.
8The treatment plan seeks a total of $761.80 inclusive of $135.00 for an acupuncture mat, $149.99 for a weighted blanket, $29.99 for a white noise machine, $17.99 for a paint by numbers set, $26.98 for a diamond by numbers set, $87.29 for time to order the supplies, $50.00 for a cost adjustment fee, and $200.00 for the cost to complete the OCF-18 form.
9The applicant argues that the treatment plan is reasonable and necessary because the applicant has had difficulty sleeping due to neck and back pain, concussion symptoms, and anxiety as a result of the accident.
10The respondent argues that the applicant has not met her burden to prove that the treatment plan is reasonable and necessary, because the applicant has not provided contemporaneous evidence to support the treatment plan.
11The applicant relies on a letter from Ms. Chalova, dated April 13, 2024 which provided her rationale for her recommendations for each of the treatment plans in dispute. I assign little weight to Ms. Chalova’s letter, because there is no evidence before me that Ms. Chalova had met with the applicant since she conducted an in-home assessment on August 8, 2022, more than 2 years before the treatment plan was submitted, and fewer than 2 months after the applicant sustained further back injuries, including an end-plate fracture of her spine, in a subsequent car accident on June 19, 2022. There is no mention of the June 19, 2022 accident in Ms. Chalova’s letter.
12The applicant also relies on various s.25 examination reports and s.44 insurer’s examination (“IE”) reports dated between May 2021 and August 2022 including neurological, psychological, and orthopaedic reports, and Ms. Chalova’s s. 25 in-home functional assessment reports, dated May 19, 2021, and August 8, 2022.
13The Tribunal has long held that a treatment plan must be supported by corroborating, contemporaneous evidence. I find that none of the 2021 and 2022 reports shed light on whether the devices sought in the treatment plans are reasonable and necessary at the time that the treatment plans were submitted on April 17, 2024 because they were conducted a significant amount of time before the date of the treatment plans. As such, I assign these reports no weight.
14The applicant also submitted a physiatry report by Dr. Rebecca Titman, neuro-physiatrist, dated July 10, 2023, ten months before the treatment plan was submitted. Dr. Titman conducted an interview and physical examination of the applicant, and opines that the applicant’s injuries, particularly her neck and back pain which had been improving, were exacerbated by her subsequent June 19, 2022 accident. Dr. Titman also noted a decline in the applicant’s ability to carry out her activities of daily life since the June 19, 2022 accident. Further, Dr. Titman did not recommend home or workplace modification and devices. As a result, I find that Dr. Titman’s report does not corroborate the applicant’s position that the treatment plans are reasonable and necessary as a result of the March 1, 2021 accident.
15In her submissions, the applicant also refers to an August 24, 2023 medical evaluation report by Dr. Wilderman. The applicant submitted one page of the report which does not identify Dr. Wilderman’s qualifications, and refers only to an accident that occurred 14 months before, which I find more likely than not refers to the applicant’s June 19, 2022 accident. In any event, as the applicant has submitted only one page of the report and it not clear which accident it is referring to, I assign the excerpt of Dr. Wilderman’s report no weight.
16I assign more weight to the July 16, 2024 IE reports of Dr. E.P Urovitz, orthopaedic surgeon, and Nicholas Livadas, occupational therapist, which were conducted within 2 months of the submission of the treatment plans. Dr. Urovitz conducted an interview and physical examination of the applicant and opined that the examination did not produce “reproducible and corroborative residual objective signs of accident related orthopedic impairment.” Mr. Lividas conducted an in-home assessment, including an interview, testing, and observation, and a review of the applicant’s medical records. Mr. Lividas noted a decrease in the applicant’s range of motion in her neck, but opined that it was functional for the applicant’s activities of daily living.
17Both Dr. Urovitz and Mr. Lividas opined that the treatment plan was not reasonable and necessary.
18As the applicant has not directed me to any recommendations for home devices or equipment to support her sleep, or other contemporaneous medical evidence to support the treatment plan, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
19Accordingly, the applicant is not entitled to $761.80 for home devices and equipment, in a treatment plan submitted April 17, 2024.
Is the applicant entitled to $3,042.15 for a Sleep Country sleep system, in a treatment plan submitted April 17, 2024?
20I find that the applicant has not established on a balance of probabilities that the April 17, 2024 treatment plan for a Sleep Country sleep system (“mattress”) is reasonable and necessary.
21The treatment plan, prepared by Ms. Chalova seeks $3,042.15, inclusive of $2,456.99 for a mattress, $319.41 in tax, $58.19 in support activity for the purchase of the mattress, and $200.00 to complete the OCF-18 form.
22The applicant submits that the new mattress is reasonable and necessary because the applicant has accident-related back pain and anxiety which interferes with her sleep.
23The respondent argues that the applicant has not met her onus to prove that in their respective July 16, 2023 IE reports, because both Dr. Urovitz and Mr. Livadas opined that the treatment plan was not reasonable and necessary. Further, the applicant told Mr. Livadas that her problems with sleep resulted from her anxiety, which Mr. Livadas opined would not be assisted by a new mattress.
24Although Ms. Chalova stated in her April 13, 2024 letter that the applicant reported that her family doctor and her chiropractor agreed that she needed a new mattress, the applicant has not directed me to evidence to support that such a recommendation was made.
25As I have assigned little weight to Ms. Chalova’s April 13, 2024 letter and the applicant has not directed me to other contemporaneous medical or other evidence in support of the treatment plan, I find that she has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
26Accordingly, the applicant is not entitled to $3,042.15 for a Sleep Country sleep system, in the treatment plan submitted April 17, 2024.
Is the applicant entitled to $2,039.92 for workplace modifications and devices, in a treatment plan submitted April 17, 2024?
27I find that the applicant has not established on a balance of probabilities that the April 17, 2024 treatment plan for workplace modifications is reasonable and necessary.
28The goals of the treatment plan, prepared by Ms. Chalova are: pain reduction, increase sitting tolerance at computer, increase social engagement, and a return to the activities of normal living. The treatment plan seeks $2,039.92, which is comprised of a total of $1510.95 for an office chair, adjustable desk, office chairmat, keyboard, mouse, and keyboard tray, as well as $50.00 for a cost adjustment, $87.29 for support activity, $200.00 to complete the OCF-18 form and $211.68 in taxes.
29The applicant submits that she requires ergonomic supports for her home desktop environment to allow her to communicate with her family via videoconference. She relies on Ms. Chalova’s April 13, 2024 letter.
30The respondent argues that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary, and relies on the IE report of Mr. Livadas, who opined that the treatment plan is not reasonable and necessary because the applicant demonstrated functional strength, cognition, and range of motion. The respondent also noted that Mr. Lividas opined that while the applicant had a reduced range of motion in her neck, it was sufficient for the applicant to perform her activities of daily living.
31The applicant has not submitted any contemporaneous medical evidence or recommendation from a treatment provider to support the treatment plan, and I have assigned little weight to Ms. Chalova’s letter in support of her treatment plan, as noted above.
32As a result, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
33Accordingly, the applicant is not entitled to $2,039.92 for workplace modifications and devices in the treatment plan submitted April 17, 2024.
Is the applicant entitled to $1,123.53 for home modifications and devices, in a treatment plan submitted April 17, 2024?
34I find that the applicant has not established on a balance of probabilities that the April 17, 2024 treatment plan for cleaning devices is reasonable and necessary.
35The treatment plan seeks a total of $1,123.53, including $299.99 for a steam mop and $449.99 for an irobot, as well as $50.00 for a cost adjustment, $87.29 for support activities, $200.00 for the completion of the OCF-18 form, and $108.25 in taxes.
36The applicant has not made any submissions with respect to this treatment plan. As such, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
37Accordingly, the applicant is not entitled to $1,123.53 for home modifications and devices in the treatment plan dated April 17, 2024.
Is the applicant entitled to $925.75 for home modifications and devices, in a treatment plan submitted April 17, 2024?
38I find that the applicant has not established that the April 17 treatment plan for kitchen devices is reasonable and necessary.
39The goals of the treatment plan, prepared by Ms. Chalova, are pain reduction and a return to the activities of normal living. It seeks $925.75 inclusive of $219.99 for an air fryer, $124.99 for a food processor, $159.98 for floor mats, as well as a cost adjustment of $50.00, $87.29 for support activity, $83.50 for tax and $200.00 for the completion of the OCF-18 form.
40The applicant submits that the treatment plan is reasonable and necessary to reduce the time it takes to prepare food and to reduce the applicant’s fatigue. The applicant relies on Ms. Chalova’s April 13, 2024 letter submitted with the treatment plan.
41The respondent argues that the applicant has not met her burden to prove that the treatment plan is reasonable and necessary, and that both Dr. Urovitz and Mr. Livadas opined that the treatment plan was not reasonable and necessary.
42The applicant has not directed me to medical evidence, or recommendations of a treatment provider to support the treatment plan, and as noted above, I have assigned little weight to Ms. Chalova’s letter. As a result, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
43Accordingly, the applicant is not entitled to $925.75 for home modifications and devices in the treatment plan submitted on April 17, 2024.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.
Award
45The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
46The applicant submits that she is entitled to an award because the respondent denied the treatment plans in dispute. As she has not directed me to evidence that the respondent’s conduct has reached the bar of unreasonable as set out above, and I have found that the respondent has not unreasonably withheld or delayed any payments, I find that the applicant has not met her onus to prove that she is entitled to an award.
ORDER
47I find that:
The applicant is not entitled to the treatment plans in dispute.
As no payments are owing, no interest is due.
The applicant is not entitled to an award.
The application is dismissed.
Released: June 2, 2026
Kathleen Wells
Adjudicator