O’connor v Aviva General Insurance Company

Tribunals Ontario

Tribunaux décisionnels Ontario

Licence Appeal Tribunal

Tribunal d'appel en matière de permis

Citation: O’connor v. Aviva General Insurance Company, 2022 ONLAT 19-

006131/AABS

Licence Appeal Tribunal File Number: 19-006131/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:

Ivylyn O'Connor

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

APPEARANCES:

For the Applicant:

Deborah Neilson

Ivylyn O'Connor, Applicant

Francesco Vumbaca, Paralegal

For the Respondent:

Court Reporter:

Jennifer Walters, Claims Representative

Marcin Panasewicz, Counsel

Leanne Zabudsky, Counsel

Giles Tingey

HEARD: by Videoconference:October 4 to 6, 2021

REASONS FOR DECISION

BACKGROUND

[1] The applicant was involved in an automobile accident on December 9, 2017 and

sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective

September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits

by the respondent and submitted an application to the Licence Appeal Tribunal -

Automobile Accident Benefits Service (“Tribunal”).

[2] The applicant worked full-time as a cleaner for a cleaning company and part-time

at a hotel as a housekeeper. She sustained soft-tissue injuries to her neck,

shoulder, back, and right leg as a result of the accident. She returned to work as

a housekeeper at the hotel after the accident but did not return to her work for the

cleaning company. She claimed entitlement to income replacement benefits,

physiotherapy, psychological treatment, shock wave therapy, a chronic pain

program and the cost of various examinations.

[3] The respondent did not pay the applicant any income replacement benefits

(“IRBs”) up to the date it denied those benefits. The applicant does not dispute

that denial of IRBs but seeks entitlement to IRBs prior to the respondent’s denial.

The respondent claimed her work at the hotel is the same as her work for the

cleaning company and that she has had no loss of income since the accident.

The respondent claimed that the applicant does not want the treatment or

assessments in dispute as evidenced by her failure to use her collateral benefits

to obtain the treatment in dispute.

[4] I find that the applicant is entitled to income replacement benefits up to January

19, 2018 but I make no order for payment of the benefit for the reasons that

follow as I have no jurisdiction to do so. I also find that the applicant is entitled to

chiropractic, massage therapy and acupuncture services and a portion of a

chronic pain program. The applicant is not entitled to the cost of examinations

claimed.

PROCEDURAL ISSUES

[5] The applicant filed a motion three business days before the hearing seeking to

add issues and for the respondent to produce adjusters’ log notes. The

respondent objected and submitted that the motion should not be heard because

it was filed late. The applicant also sought to add an adjuster as a witness for the

purpose of cross-examination. No motion was filed with respect to this request.

Page 2 of 29

[6] I denied the applicant’s requests because the applicant did not comply with the

case conference Order dated November 20, 2020, the LAT Rules¹and for the

following reasons.

A. Whether the Applicant’s Motion Should Be Heard

[7] The respondent submitted that the motion should not be heard because it was

filed late – six days before the hearing rather than the ten days required under

LAT Rule 15.2. I agreed. The applicant made no request to abridge the time for

serving her motion. She submitted that her motion was served and filed late

because previous counsel on the file left the firm. However, there was no

evidence before me of that. The applicant’s counsel of record filed with the

Tribunal has not changed and that counsel is still with the law firm.²

[8] The timelines of the Order and the LAT Rules are there to ensure that parties

have a fair hearing and that no party is surprised by last minute evidence at the

hearing.³The applicant’s motion was dismissed because she failed to comply

with the timelines in the Order and the timelines for filing her motion under the

LAT Rules.

1.

Motion for Production of Log Notes

[9] The applicant relied on LAT Rule 9.3 and submitted that she was entitled to bring

a motion at any time prior to the hearing for the production of adjusters’ log

notes. However, her submission does not take into account the deadline in the

case conference Order for filing documents the applicant intended to rely on for

the hearing was September 10, 2021. She did not file a motion to extend the

deadline for filing documents if her motion for production of the adjusters’ notes

was successful.

[10] This is not a case where the applicant was diligently trying to obtain production

from the respondent without result. In fact, there have been three case

conferences during which no order was sought by the applicant for the

production of log notes. At the first case conference, the parties were ordered to

advise each other of those documents they were not agreeable to producing that

were requested by the other party. There was no evidence that the applicant ever

sent such a letter. At the November 2020 case conference, the Tribunal ordered

¹Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of

Practice and Procedure, Version I (October 2, 2017) [“LAT Rules”]

²Law Society of Ontario: https://lso.ca/public-resources/finding-a-lawyer-or-paralegal/lawyer-and-

paralegal-directory

³2018 39463 (ON LAT) (not referred to by either party)

Page 3 of 29

the applicant to produce documents. If the applicant thought the log notes were

relevant and that she would be prejudiced by proceeding to the hearing without

them, then she could have sought their production at that time.

[11] The applicant provided no cohesive reason or supporting evidence for the delay

in bringing the motion. Normally the adjusters’ notes are prima facie relevant.

However, in this case, given the late request, I have drawn an inference that they

are an afterthought for the applicant, which rebuts the presumption of prima facie

relevancy.

[12] I find the timing of the applicant’s request for adjusters’ log notes is prejudicial to

the respondent as the respondent had no opportunity to file responding

submissions. If the applicant was successful with her motion, the respondent

would have been required to spend its time vetting the log notes for privilege and

reserve information instead of preparing for the hearing.

[13] The respondent submitted that it would require an adjournment of the hearing to

address the issue of log note production and witnesses. At that stage of the

dispute resolution process, an adjournment of the hearing because of documents

that could have been obtained within the timelines set out in the case conference

Order and the LAT Rules was not an option as this hearing was previously

adjourned twice. Accordingly, I dismissed the motion for production of log notes.

2.

Motion to Add Issues

[14] The applicant submitted that she would be prejudiced if her motion was not heard

because she would be forced to apply to the Tribunal separately to have her

issues heard. I fail to see how filing a new application is prejudicial to the

applicant. The respondent submits it would be prejudiced because it already filed

its witness lists and brief of documents. I agree.

[15] The applicant relied on the G. K. vs. Aviva Insurance Canada⁴, 2020 ONLAT 18-

009299/AABS in which the applicant was allowed to add issues of medical

benefits to a written hearing without bringing a motion. In that case, the Tribunal

determined there was marginal prejudice to the respondent because of the way

the new issue was raised, but that the prejudice was cured because the

respondent had an opportunity to respond to the issue and did so. In that case,

the issue was raised in the applicant’s submissions. The respondent had almost

two months in which to respond.

⁴G. K. vs. Aviva Insurance Canada, 2020 ONLAT 18-009299/AABS, 2020 61468 (ON LAT) (“GK

v Aviva”)

Page 4 of 29

[16] In this case, the applicant brought her motion three business days before the

hearing. The applicant submitted that three business days notice was well ahead

of the hearing. I disagree. Well ahead of the hearing is prior to a deadline for

serving and filing documents. The deadline for serving documents was June 10,

2021, for serving any further experts’ reports was August 31, 2021, and for filing

documents briefs was September 10, 2021. One of the treatment plans in dispute

that the applicant sought to add was denied on March 11, 2021. The other one

was submitted on August 19, 2021 and was partially approved on September 10,

2021. This means the applicant knew that two of the treatment plans were live

issues before the deadline for filing document briefs.

[17] One of the issues the applicant sought to add was a second chronic pain

treatment plan. She sought to add it as an issue in the hearing at the last case

conference on November 10, 2020. The respondent objected at that time on the

basis it did not have enough information. A timeline was set out by Adjudicator

Parish to address the information the respondent needed to either approve the

treatment plan or deny it to avoid bringing a motion. I would have expected that if

the applicant complied with the order to produce the information requested by the

respondent and if the respondent did not respond by January 15, 2021 as

ordered, that the applicant would have brought a motion in a timely manner given

the procedure set out by Adjudicator Parish. The applicant provided no reason or

evidence why he could not file his motion within the timelines set out in

Adjudicator Parish’s order or within the LAT Rules.

[18] I find the applicant demonstrated a lack of urgency by failing to address the new

issues in a timely manner. In my view, her lack of urgency is not consistent with

an individual who believes they would be prejudiced if new issues were not

added to the hearing.

[19] The applicant’s request for a motion hearing on the eve of the hearing without

evidence of urgency or the reason for the late service is inappropriate and risks

considerable delay in the litigation of a matter that has been open with the

Tribunal since May of 2019. The timing of this motion request effectively

precluded the respondent from filing responding submissions without causing

delay to the hearing. The applicant’s motion was denied for these reasons.

B. Adding a Witness

[20] The applicant advised at the hearing that she intended to call an adjuster as a

witness for cross-examination. No summons was served on the adjuster. The

Tribunal’s Orders dated October 16, 2019 and November 20, 2020 state that the

applicant intended to call an adjuster as her own witness. The November 20,

Page 5 of 29

2020 Order required the parties to notify each other by September 10, 2021,

which of its witnesses from those listed in the Orders were confirmed to attend

the hearing. The applicant did not serve her list until September 16, 2021, at

which time she did not confirm that the adjuster would be attending. Her legal

representative advised that he decided he would not call her because he did not

have the log notes. He had no cogent explanation for why he did not bring a

motion prior to the September 10, 2021 deadline for the log notes.

[21] I find that there is a presumption of prejudice to a party when the other party fails

to comply with the LAT Rules or the Tribunal’s orders. There was no evidence of

any prejudice the applicant may suffer if she was unable to cross-examine the

adjuster. Nor was I provided with any authority that allowed me to order an

adjuster to make herself available for cross-examination in the absence of an

agreement or a summons. Given that the applicant did not summons an adjuster

and did not confirm she would be calling an adjuster to testify, there was no

requirement for an adjuster to attend for cross-examination at the hearing.

C. Exclusion of a Report

[22] The applicant also sought to exclude the report of Dr. Oshidari, a physiatrist who

conducted an insurer’s examination of the applicant under s.44 of the Schedule

(“IE”). The applicant submitted that Dr. Oshidari’s report was not relevant

because it was prepared more than two years post accident. I am satisfied that

the report was served and filed in time as ordered. The timing of the report goes

to weight. Accordingly, the applicant’s request that the report be excluded was

dismissed.

ISSUES

[23] The issues I determined are as follows: ⁵

1.

Is the applicant entitled to receive income replacement benefits in the

amount of $400 weekly (less post accident income paid) for the period

from December 16, 2017 to May 2018?⁶

2.

Is the applicant entitled to receive physiotherapy services as follows:

⁵The respondent advised at the hearing that the $3,335.98 treatment plan for psychological treatment

submitted on December 6, 2018 and the $2,000 treatment plan for a psychological assessment

submitted July 13, 2018 that were listed in the case conference Order were approved.

⁶The applicant advised at the hearing that she was limiting her claim for IRBs to May 2018, despite the

amended case conference Order dated November 10, 2020 that stated IRBs were claimed to

December 9, 2019.

Page 6 of 29

a.

b.

c.

d.

e.

in the amount of $2,581.08 recommended by Dr. Minnella of

Toronto Healthcare Inc. in a treatment plan submitted January 5,

2018, and denied by the respondent on January 8, 2018?

in the amount of $1,465.10 from Toronto Healthcare Inc.

recommended in a treatment plan submitted May 11, 2018, and

denied by the respondent on May 15, 2018?

in the amount of $1,383.74 from Toronto Healthcare Inc.

recommended in a treatment plan submitted June 29, 2018, and

denied by the respondent on July 13, 2018?

in the amount of $1,186.45 from Toronto Healthcare Inc.

recommended in a treatment plan submitted August 24, 2018, and

denied by the respondent on September 5, 2018?

in the amount of $1,183.74 recommended by Dr. Kaira of Toronto

Healthcare Inc. in a treatment plan dated October 23, 2018, and

denied by the respondent on November 6, 2018?

3.

Is the applicant entitled to psychological services as follows:

a.

in the amount of $627.92 for a psychological CD ⁷from Toronto

Healthcare Inc. recommended in a treatment plan dated

December 7, 2018, and denied by the respondent on December

18, 2018?

4.

5.

6.

Is the applicant entitled to $1,800 for shockwave therapy recommended

by Dr. Kaira of Toronto Healthcare Inc. in a treatment plan submitted

October 23, 2018, and denied by the respondent on November 14,

2018?

Is the applicant entitled to $14,606.56 for chronic pain treatment

services by Toronto Healthcare Clinic Inc. recommended in a treatment

plan submitted, May 13, 2019, and denied by the respondent on May

14, 2019?

Is the applicant entitled to receive the following cost of examination

expenses:

⁷The treatment plan actually states there are three CDs.

Page 7 of 29

a.

b.

c.

in the amount of $2,000 for a chronic pain assessment at Toronto

Healthcare Inc. recommended in a treatment plan submitted

October 26, 2018, and denied by the respondent on November 6,

2018?

in the amount of $1,981.70 for a driving rehabilitation assessment

at Toronto Healthcare Inc. recommended in a treatment plan

submitted February 14, 2019, and denied by the respondent on

February 26, 2019?⁸

in the amount of $200 for a psychological pre-screening

assessment, at Toronto Healthcare Inc. recommended in a

treatment plan submitted July 13, 2018, and denied July 13, 2018?

7.

8.

Is the applicant entitled to an award under Regulation 664 because the

respondent unreasonably withheld or delayed payment of benefits to

the applicant?

Is the applicant entitled to receive interest on any overdue payment of

benefits?

ANALYSIS

A. IRBs

[24] The applicant claimed entitlement to IRBs in the amount of $400 per week less

her post-accident income for the period from December 16, 2017 to May 2018.

Under s.5(1) of the Schedule, the respondent is required to pay IRBs if, as a

result of and within 104 weeks of the accident, the applicant suffered a

substantial inability to perform the essential tasks of her employment as a

cleaner or as a housekeeper. The applicant has the onus to prove on a balance

of probabilities that she has a substantial inability to perform the essential tasks

of her employment. However, in this case, the respondent accepted that the

applicant is entitled to IRBs up to June 5, 2018⁹or for the period of time following

the accident until she returned to work. Therefore, the issues before me are

when did the applicant return to work and how much of her post accident income

is to be deducted from her IRBs.

⁸The case conference Order erroneously states it was for $1,981.71 submitted on February 14, 2018.

⁹Exhibit 32, p.700, letter from respondent dated April 25 advising an IE was required as an update to

determine ongoing entitlement to IRBs.

Page 8 of 29

[25] The applicant testified that her work at the hotel was making beds, vacuuming

and cleaning bathrooms in the hotel rooms. Her work for the cleaning company

was more demanding than the hotel because the cleaning company required

more “deep” cleaning, which means it was more physical. The tasks she was

required to do for both jobs were essentially the same, except for garbage

removal, which required more physical effort for the cleaning company.

[26] I find that the applicant sustained a substantial inability to engage in the essential

tasks of her pre-accident occupations as a cleaner and housekeeper. My

determination is based on the applicant’s testimony, who I found was honest and

credible, the clinical notes and records and the respondent’s acknowledgement

that the applicant is entitled to IRBs up to the date of denial in June 2018.

[27] The applicant never returned to work for the cleaning company. She was fired

from her job because the cleaning company had to replace her when she took

time off work as a result of her accident injuries. The applicant testified that she

returned to part-time work, two days per week, at the hotel on January 19, 2018.

Her testimony corroborated what she told some of the medical assessors and

treatment providers. She testified that if she had not been fired from the cleaning

company, she would have been able to return to work for the cleaning company

at the same time that she returned to work at the hotel.

[28] The applicant testified that she received help from her co-workers when she

returned to work at the hotel, as she was still in a great deal of pain. After work,

she would come home, shower and then go to bed. She started working full-time

at the hotel in either April or May 2018.

[29] The respondent relied on the report of Dr. Paul Tepperman, a general

practitioner who conducted an insurer’s examination under s.44 of the Schedule

(“IE”) at the request of the respondent. He reported that the applicant advised

him that she returned to part-time work at the hotel three weeks after the

accident and to full-time work in January 2018.¹⁰

[30] The applicant submitted that little weight should be given to Dr. Tepperman’s

opinion because he found the applicant was self-limiting and there was no other

evidence that she was self-limiting. Dr. Tepperman did not believe her, contrary

to every other assessor.

[31] An insured person does not satisfy her onus to prove her entitlement on a

balance of probabilities by offering more expert opinions that favour her than the

¹⁰Exhibit 1: Report of Dr. Paul Tepperman dated June 8, 2018

Page 9 of 29

respondent. An expert’s opinion may carry less weight if it is a contrary or stand-

alone opinion if there is no reasonable explanation for why. Some of the

considerations that affect the weight to be given to an expert’s opinion are the

thoroughness and accuracy of the assessment, and whether the assessor is

biased.

[32] The applicant did not point to any inaccuracies or testimony from Dr. Tepperman

that point to bias. Nor was Dr. Tepperman the only one who reported that the

applicant retuned to full-time work in January 2018. Dr. Pravesh Jugnundan,

another general practitioner who conducted an IE assessment of the applicant,

reported on October 19, 2018 that the applicant started working full time for the

hotel around January 2018. Dr. Jugnundan testified that his report was based on

information the applicant provided him. This means that Dr. Tepperman’s

evidence was not stand-alone evidence.

[33] The applicant submitted that I should give little weight to Dr. Jugnundan’s

evidence because it was inconsistent with the overall evidence. The applicant

submitted that Dr. Jugnundan was evasive and stubborn, that, despite his

objective findings on examination of the applicant, he was hesitant to admit that

rehabilitation was better than being on pain medication.

[34] I do not find that Dr. Jugnundan was evasive or stubborn. He answered the

questions put to him in a straightforward and calm manner. He testified that he

preferred active rehabilitation if over the counter pain medication did not solve a

patient’s pain issues and that such medication over time could cause other health

issues. For these reasons, I do not agree with the applicant’s submission that Dr.

Dr. Jugnundan’s evidence be given little weight.

[35] The respondent relied on a letter to the applicant dated June 7, 2018 asking the

applicant to submit her paystubs and an Employer’s Confirmation of Income

(OCF-2) form to the respondent if she experienced a shortfall in income before

she returned to work.¹¹The respondent submitted that the applicant must not

have suffered a shortfall in her income because it never received the applicant’s

post-accident payroll stubs.

[36] The applicant testified that she never saw the letter. It was addressed to her

correct address, was carbon copied to her legal representative, and a copy was

included in her brief of documents. The respondent did not file any evidence that

the letter was mailed or faxed to the applicant. However, given that a copy was in

the applicant’s brief of documents, I find that her legal representative had a copy

¹¹Ex.4: Letter from Aviva of June 7, 2018

Page 10 of 29

of the letter. However, this does not mean that I am able to draw the inference

the respondent has asked me to. That is because the applicant provided some

evidence that she tried to obtain the documents from the hotel.

[37] The applicant submitted that she made a number of requests to the hotel for her

employment records and pay stubs. Copies of letters were produced, one of

which states that fax confirmation sheets were attached. However, no fax

confirmation sheets were attached. The hotel is part of a large, well-known chain

and I find it difficult to understand why the hotel would ignore the applicant’s

requests for her employment file unless the hotel did not receive the letters.

Without those fax confirmation sheets, there was no evidence that the letters

were actually faxed to the hotel.

[38] The applicant filed two letters from the respondent that she or her paralegal

received dated April 3, 2018 and October 23, 2018.¹²The first letter asked for an

employer’s confirmation of income form (OCF-2) from both employers no later

than April 17, 2017. The letter advised the applicant that she was obligated to

produce the forms and that no specified benefit was payable before she did so.

The October 23, 2018 letter asked the applicant to confirm the date the applicant

returned to work because she told Dr. Tepperman she only missed three weeks

of work. The applicant did not respond to the letter. Nor did she produce her

employment file from the hotel. She did, however, produce her collateral benefit

file from Sunlife through her employment at the hotel. To qualify for benefits from

Sunlife, the policy states the applicant was required to work a minimum of 20

hours per week for a qualifying period of 6 months.¹³Her policy began on April 1,

2018. The applicant testified that she did not have to wait to qualify for collateral

benefits from SunLife but did not explain why. This implies she was working more

than 20 hours per week when she returned to work at the hotel.

[39] The respondent relies on the applicant’s tax returns for 2017 and 2018 as

evidence that she returned to work full-time by January 19, 2018. The applicant

earned $298.00 less in gross income in 2018 than she did in 2017. However, I do

not find that the tax return supports the respondent’s submission. According to

the applicant’s testimony, she did not return to work from December 9, 2017 to

December 31, 2017. If so, she missed 3 weeks of work in 2017, which at an

average of $638.06 per week, means her income for 2017 should have been

$33,179.18 for 2017. Given that she only earned $30,967.00 in 2018, the

applicant was shy by $2,212.18 for her 2018 earnings. According to the average

¹²Ex.32, pp.692 to 694 and 726 to 727

¹³Ex.11, Sunlife Financial Group Benefits, p.5 (566 of the applicant’s brief)

Page 11 of 29

weekly earnings in her OCF-2 from the cleaning company, she earned $435.70

per week. This means she was shy by five weeks of income.

[40] The respondent submitted that if the applicant could not produce the records to

show what she earned, I must make a determination that she is not entitled to

any IRBs for the period claimed. The applicant submitted that if she is

determined to be entitled to IRBs, the quantum can be determined once her

employment file from the hotel is produced. I agree with the applicant to a certain

point for the following reasons.

[41] The applicant’s post accident income information is necessary to calculate the

amount of IRB owed to the applicant. The insurer is entitled to deduct 70% of the

applicant’s weekly gross employment income from her $400.00 per week IRB. ¹⁴

Without the applicant’s weekly post accident income information, the respondent

is unable to calculate the IRB. Given Dr. Tepperman’s and Dr. Jugnundan’s

reports that the applicant told them she returned to full-time work at the hotel in

January 2018 and given her claim that she only worked part-time up until April or

May 2018, the attendance records and payroll records up to the end of May 2018

are necessary to calculate her IRBs.

[42] The only provision in the Schedule that disentitles an insured person from

receiving IRBs because of a failure to produce income information is s.33(6) if

the insured has no reasonable excuse for the failure to produce the documents.

Under s.36(5), if an insurer has responded to an application for a benefit by

requesting information pursuant to s.33, the insurer is required to pay the IRBs

that were withheld once the information requested is received if the insured

person provides a reasonable explanation for the delay. Given that the applicant

has not produced the information, there is no requirement at this time for the

respondent to pay IRBs.

[43] It will not be enough for the applicant to produce income information that will

allow the respondent to calculate the IRBs owed. She will also need to provide

an explanation for the delay. She has implied that the explanation may be that

the hotel ignored her letters of request. However, until such time as she produces

her post-accident income information and the insurer refuses to accept her

explanation for the delay, there is no issue. Since there is no issue, I have no

jurisdiction to make a determination.

¹⁴Section 7(3)(a) of the Schedule

Page 12 of 29

B. Physiotherapy

[44] The respondent is required to pay for all reasonable and necessary medical

expenses incurred by or on behalf of the applicant as a result of the accident.¹⁵

The following treatment plans from Toronto Healthcare Clinic were filed and

submitted to be the treatment plans for physiotherapy in issue. Notably, they

were not for treatment by a physiotherapist, but were recommendations for

acupuncture, chiropractic treatment and massage therapy as follows:

a. in the amount of $2,581.08 recommended by Dr. Minnella, chiropractor,

dated December 15, 2017;

b. in the amount of $1,465.10 recommended by Dr. Minnella dated May 3,

2018;

c. in the amount of $1,383.74 recommended by Dr. Minnella dated June 28,

2018;

d. in the amount of $1,186.45 recommended by Dr. Minnella dated August

23, 2018; and

e. in the amount of $1,183.74 recommended by Dr. Saranjit Khaira,

chiropractor, dated October 23, 2018.¹⁶

[45] A number of the treatment plans in issue were denied on the basis the applicant

sustained minor injuries in the accident.¹⁷The applicant was taken out of the

Minor Injury Guideline after the application to the Tribunal was filed.¹⁸

[46] The applicant’s initial complaints on December 12, 2017 from the accident were

neck and left shoulder pain. Three days later she was complaining of back pain

as well. She denied having any pre-accident health issues to several assessors.

¹⁹Her pre-accident clinical notes and records disclose that at times she had

complaints of fatigue, hip pain and back pain with intermittent leg numbness.

However, those were not constant complaints.²⁰

¹⁵Section .15 of the Schedule

¹⁶Exhibits 13,14, 15, 16, and 18.

¹⁷Exhibit 32, letters from the respondent dated May 17, 2018 and September 20, 2018; respondent’s

response dated July 2, 2019.

¹⁸Tribunal Orders dated October 16, 2019 and November 10, 2020

¹⁹Ex.22: report of Dr. Loritz and Dr. Biswas dated August 26, 2019,

²⁰Ex.9: Clinical notes and records of Danforth Medical Centre from March 28, 2015 to December 12,

2017 including the report of Dr. l. Chizen, physiatrist, dated May 30, 2016

Page 13 of 29

[47] Dr. Tepperman diagnosed the applicant in June 2018 with myofascial strain of

her cervical, thoracic, and lumbar paraspinal musculature, post-traumatic

headaches, and right knee contusion as a direct result of the motor vehicle

accident of December 9, 2017.²¹Dr. Loritz, another general practitioner who did

an IE assessment of the applicant in June 2019, diagnosed the applicant with

uncomplicated myofascial sprain/strain injuries of her cervical spine, left shoulder

girdle, and axial spine as a consequence of her accident.²²

[48] The treatment plans’ goals were to reduce the applicant’s pain and increase her

strength and mobility. An exception was the goal of the October 23, 2018

treatment plan, which did not include strengthening. The goal was to improve the

applicant’s quality of life in addition to reducing pain and increasing her range of

motion.

[49] The goal of pain reduction which increases range of motion and improves quality

of life by allowing the applicant to work and resume her activities of daily living is

a reasonable and necessary treatment goal. The evidence supports that the

disputed treatment was achieving the treatment plans’ goals. Dr. Minnella’s

treatment plan dated June 28, 2018 reported that the applicant’s hip pain had

resolved. The applicant testified that the treatment helped reduce her pain and,

when she stopped, her pain returned.

[50] The applicant testified that her pain limits her activities such as going for a walk,

going out dancing, socialising and doing her housework. She was no longer able

to go dancing after the accident. Her family physician, Dr. Raveendran Rueben,

the applicant’s general practitioner, recommended physiotherapy for her left

bicipital tendinitis.²³The applicant reported to Dr. Ruben on August 9, 2018, that

she was benefiting from regular physiotherapy to her shoulder and upper back,

which enabled her work.²⁴

[51] A second ultrasound of the applicant’s left shoulder was taken on March 1, 2019

that disclosed mild left shoulder supraspinatus tendinosis.²⁵Dr. Ruben noted on

March 8, 2019, that the applicant’s pain continued. She worked part-time owing

to disabling pain. Dr. Ruben’s opinion was that the ultrasound findings of

tendinosis in the applicant’s left shoulder likely not related to the accident, but

²¹Ex.1: IE report od Dr. Tepperman

²²Ex.22: IE Report by Dr F Loritz, general practitioner, dated August 26, 2019, p.4 and Ex.10: Clinical

notes and records from Westhill Medical Centre from December to January 22, 2018

²³Ex.10: p.514, June 28, 2018 note of Dr. Ruben

²⁴Ex.10: clinical notes from Westhill Medical Centre dated August 9, 2018

²⁵Ex.28: Clinical notes and records from Lakeridge Health.

Page 14 of 29

were work-related findings.²⁶However, Dr. Loritz testified that the applicant’s

tendinosis developed over time, either years or as little as six months. He

testified that if there was no history of pre-accident shoulder complaints, the

accident could have caused the applicant’s tendinosis. The applicant’s medical

records show no history of pre-accident shoulder complaints. She complained of

left shoulder pain following the accident²⁷and an ultrasound taken of the left

should on June 25, 2018 disclosed left bicipital tendinosis. However, an

orthopaedic assistant, Kimberly Scott, thought that the applicant’s shoulder pain

was not related to her tendinosis.²⁸I find that because the applicant had no

shoulder complaints before the accident, she would not have left shoulder pain

complaints but for the accident.

[52] The respondent submitted that the applicant did not want treatment as evidenced

by her failure to use her employee medical benefits. However, there was no

evidence of this. In fact, Sunlife, the applicant’s collateral benefits carrier, issued

a benefit statement that shows the applicant was using her benefits throughout

April 2018 for chiropractic, massage therapy and acupuncture treatment.²⁹

[53] The applicant relied on Dr. Howard Jacob’s report dated April 1, 2019. Dr.

Jacobs is a general practitioner with a focus in chronic pain. He diagnosed the

applicant with chronic pain.³⁰He reviewed the treatment plans in issue and

opined that they were reasonable and necessary given the applicant’s condition.

He did not provide any other reasons in his report for his opinion.

[54] The applicant relied on the report and testimony of Dr. Grigory Karmy. The

applicant sought to have Dr. Karmy qualified as an expert in chronic pain.

However, he is not listed by either the Royal College of Physicians and Surgeons

or the College of Physicians and Surgeons of Ontario as a pain specialist.

Accordingly, I found he was an expert general medical practitioner with a focus in

chronic pain management. Dr. Karmy diagnosed the applicant with fibromyalgia

caused by the accident, chronic post traumatic headache, chronic mechanical

back pain,

[55] Although Dr. Karmy provided some useful testimony, I found he tended to

exaggerate and, accordingly, he appeared biased in favour of the applicant. For

example, he reported that the accident aggravated the applicant’s pre-existing

chronic headaches. Prior to the accident, the applicant reported the occasional

²⁶Ex. 10: Dr. Ruben’s note of March 8, 2019

²⁷Ex.27: Scarborough Hospital Emergency record dated December 9, 2017

²⁸Ex.28: Clinical Notes and Records from Lakeridge Health, report of K. Scott dated April 9, 2019.

²⁹Ex.11: Sunlife file

³⁰Ex. 21: Report of Dr. Howard Jacobs dated April 1, 2019

Page 15 of 29

headache, which was noted by Dr. Karmy. However, Dr. Karmy described these

occasional headaches as chronic headaches. On cross-examination he admitted

that a chronic headache is not the same as occasional headaches. He rendered

ten diagnoses that he reported were caused by the accident. However, he

testified that some of those ten diagnoses were only possibilities. He did not

provide any method for how I was to distinguish whether the accident caused a

particular diagnosis on the balance of probabilities or whether it was just a

possibility that the accident resulted in the diagnosis. Nor was there any

distinction or direction in his report. Therefore, where his diagnoses differ from

other medical diagnoses, I give no weight to Dr. Karmy’s opinion.

[56] One such diagnosis that I do not accept is that the applicant sustained a

traumatic brain injury. Dr. Karmy provided no reason in his report for his

diagnosis. He testified that the accident did not cause a traumatic brain injury but

exacerbated an earlier concussion.³¹Dr. Karmy relied on a consultation report

dated July 8, 2016, by Dr. Veidlinger, neurologist, who indicated that a person

with the same name as the applicant, but half her age sustained a head injury in

2016 with a loss of consciousness and a large cut over the left occiput. There

was no mention in any of the clinical notes of the applicant receiving a head

injury in 2016. Nor did the applicant testify to having a concussion in 2016. Dr.

Karmy also testified that because the applicant reported being shocked from the

accident, a TBI was a possibility. I find this is a gross exaggeration and the

reason for such an exaggeration was to bolster the applicant’s case. This is bias

and means that little weight can be given to Dr. Karmy’s evidence.

[57] Dr. Karmy testified that he did not know what advanced activation was, but he

found the treatment plan recommending it was reasonable and necessary. He

reported that the applicant’s pain complaints affected her ability to do her job.

This is inconsistent with the applicant’s testimony that she could have done her

job as a housecleaner by January 19, 2018. He did not know how often the

applicant was able to engage in her social and recreational activities post-

accident.

[58] The respondent submitted that because the applicant reported a 75% resolution

of her injuries, that further treatment is not necessary. I disagree. I find that a

75% resolution shows that the treatment in issue was assisting the applicant and

was, therefore, necessary.

³¹Dr. Karmy relied on a consultation report dated July 8, 2016, by Dr. Veidlinger, neurologist, who

indicated that a person with the same name as the applicant, but half her age sustained a head injury

in 2016 with a loss of consciousness and a large cut over the left occiput. There was no mention in

any of the clinical notes of the applicant receiving a head injury in 2016.

Page 16 of 29

[59] Dr. Karmy testified that as long as the applicant wants treatment and it helps her,

it is reasonable. I agree with him only to the extent that pain control is a

legitimate goal of treatment. The applicant testified that the physiotherapy

treatment she received helped address the pain and allowed her to work. In this

case, the evidence was overwhelming from both the applicant’s testimony and

the treatment plans that the massage, acupuncture and chiropractic treatment

helped the applicant continue working and provided her with pain relief. For these

reasons, I find that the treatment recommended in the disputed treatment plans

was reasonable and necessary.

[60] The applicant submitted that unless the respondent raised the issue of whether

the fees charged are reasonable, I should not concern myself the hourly fees

charged for the treatment plans in dispute. I do not agree. Part of the test for

determining entitlement to the benefits claimed is the reasonableness of the

treatment. This includes the issue of whether the quantum of the medical or

rehabilitation benefit is reasonable. The issue before me is whether the treatment

is reasonable and necessary. There is nothing in the case conference order

limiting the issues to only the necessity of the treatment.

[61] Having said that, I find that the hourly fees listed in part 11 of the treatment plans

are within the Professional Service Guidelines.³²For these reasons I find that the

disputed acupuncture, massage therapy and chiropractic treatment are

reasonable and necessary.

C. Shockwave Therapy

[62] The applicant claimed entitlement to $1,800.00 for shockwave therapy

recommended by Dr. Saranjit Kaira, chiropractor of Toronto Healthcare Inc., in a

treatment plan dated October 23, 2018. The goals of the treatment were to

reduce pain, increase range of motion, restore mobility and improve quality of

life.³³As mentioned earlier, I find these goals were reasonable and necessary

goals for the applicant.

[63] Dr. Kaira explained in his treatment plan that shockwave therapy accelerates the

healing process in the body by stimulating metabolism and enhancing blood

circulation to regenerate damaged tissue. Fascia and trigger point pain relief can

be immediate with shockwave therapy. Strong energy pulses are applied to the

affected area. These pulses occur for short periods of time, creating micro-

cavitation bubbles that expand and burst. The force created by these bubbles

³²September 2014 Professional Service Guidelines, Superintendent’s Guideline No. 03/14 (“Professional

Service Guidelines”)

³³Ex. 17: OCF-18 of Dr. Saranjit Kaira dated October 23, 2018

Page 17 of 29

penetrates tissue and stimulates cells in the body that are responsible for bone

and connective tissue healing. The hourly fee he charged for administering the

shockwave therapy was within the Professional Service Guidelines.

[64] Dr. Karmy could not advise what shock wave therapy is. However, he testified

that it has been used for a number of years with good result. His testimony

corroborates Dr. Kaira’s explanation. I accept Dr. Karmy’s testimony on the

shockwave therapy because I heard no other testimony nor evidence to discount

it.

[65] For these reasons, I find that the shockwave therapy treatment plan was

reasonable and necessary to address the applicant’s accident injuries.

Accordingly, the applicant is entitled to the shockwave therapy.

D. Chronic Pain Program

[66] The applicant is seeking entitlement to a chronic pain program at the Toronto

Healthcare Clinic Inc. recommended in a treatment plan dated May 13, 2019 by

Dr. Howard Jacobs, a general practitioner. He recommended that the applicant

be involved in a multidisciplinary chronic pain program and that she receive

paravertebral nerve blocks in the cervical and lumbar spine. He recommended

physiotherapy after the injection therapy as an adjunct.³⁴

[67] The respondent relied on 17-008304 v Aviva Insurance Canada, 2018

130868 (ON LAT) and submitted that the applicant’s entitlement to a chronic pain

program turned on whether she has chronic pain syndrome. The respondent

submitted that if the applicant just suffered from chronic pain, she is not entitled

to the treatment sought. The respondent submitted that the insured in 17-008304

v Aviva Insurance Canada had disabling pain and was diagnosed with Persistent,

Severe Somatic Symptom Disorder with Predominant Pain. The respondent

submitted that was very different from the applicant who just has chronic pain.

[68] I find that the 17-008304 v Aviva Insurance Canada decision does not assist the

respondent. There was no mention in that case that only where a diagnosis of

chronic pain syndrome is made will a chronic pain program be reasonable and

necessary for an insured person. The respondent’s submissions ignore the

applicant’s testimony and the evidence that her social life has been reduced by

her pain complaints and her activities of daily living have been affected. She no

³⁴Ex. 20: OCF-18 of Dr. Jacobs, dated May 8, 2019 and Ex. Ex.21: report of Dr. Howard Jacobs dated

April 1, 2019.

Page 18 of 29

longer goes dancing and is unable to do her housekeeping chores in the same

manner that she did pre-accident.

[69] The respondent relied on the testimony and the IE report of Dr. Loritz to deny

entitlement to the chronic pain program.³⁵Dr. Loritz testified that he does not

accept that chronic pain is a condition, despite the consensus testimony of the

other physicians that chronic pain is pain that lasts more than three months. Dr.

Loritz testified that the applicant’s condition had plateaued and that she likely

would not get back to her pre-accident status. He testified that there was nothing

to indicate that she suffered from chronic pain and that the applicant could not

have been suffering from chronic pain syndrome when he saw her. When asked

why, he answered that he was not sure and testified that the applicant’s pain was

from other factors.

[70] I give very little weight to Dr. Loritz’s opinion that the applicant’s ongoing pain

complaints are caused by other factors for the following reasons. Dr. Loritz did

not report on what those other factors were. He testified that the reason was

because those other factors were not important. When asked if there was

anything in the records to suggest that the applicant’s ongoing pain was not

related to the accident, Dr. Loritz replied that he was not asked to do that

assessment. His testimony makes no sense given that he was retained by the

respondent to determine whether the applicant was within the MIG and whether a

chronic pain program was reasonable and necessary. This required a

determination of whether the applicant has chronic pain as a result of the

accident that is of such an impact on her activities that she required a chronic

pain program. Dr. Loritz ought to have foreseen that a dispute would arise

between the applicant and the respondent once he reported that a chronic pain

program was not necessary for treating the applicant’s pain complaints and that

his reasons for his determination would be relevant to resolving that dispute. If

the applicant has chronic pain that was not caused by or contributed to by the

accident, an explanation by Dr. Loritz was required, especially when there is no

post-accident incident recorded to account for the applicant’s pain complaints

and no pre-accident complaints of pain other than intermittent hip and back pain.

Further, Dr. Loritz reported that the applicant developed myofascial pain

symptoms as a result of her soft tissue injuries from the accident. This is in

keeping with his testimony that the applicant was reluctant to turn her head to the

right due to pain, which Dr. Loritz testified could be a lingering issue from the

accident. For all of these reasons I place little weight on Dr. Loritz’s testimony

³⁵Ex.22: IE report of Dr. F. Loritz dated August 26, 2019

Page 19 of 29

that the applicant does not have chronic pain as a result of the accident and find

that his testimony does not assist the respondent.

[71] The evidence is overwhelming that, despite the progress that the applicant has

made, she has chronic pain as a result of the accident that prevents her from

engaging in her pre-accident social activities and affects how she performs her

housekeeping duties. The treatment she received that was recommended in the

chiropractic, massage therapy and acupuncture treatment plans provided her

with pain relief, albeit temporary, and provided the applicant with a 75%

improvement and, although she has plateaued, it allowed the applicant to

continue working and to engage in some of her activities of daily living without

having to consume as much medication.³⁶

[72] The respondent submitted that the evidence concerning limitations in the

applicant’s activities due to pain is vague and the clinical notes and records show

few complaints from the motor vehicle accident. I agree that the notes of the

medical clinic the applicant attended on a regular basis before and after the

accident do not show may accident-related complaints. However, the clinical

notes from Toronto Health, the clinic where she received chiropractic treatment,

show consistent complaints of back, shoulder and neck pain. I find that just

because the applicant told her chiropractors but not her doctors of her ongoing

pain complaints does not mean she did not have pain complaints. Further, the

applicant’s evidence and testimony about her pain complaints was clear. I was

provided with no reason to disbelieve the applicant. Accordingly, I do not agree

with the respondent that the evidence of the extent of the applicant’s pain was

vague.

[73] The applicant submitted that the chronic pain program is necessary as it is an

alternative to medication. The applicant reported to Dr. Biswas that she takes

pain killers and muscle relaxants sometimes when she is not able to tolerate the

pain. Naproxen was prescribed on May 18, 2018 and again in July 2018 by Dr.

Ruben.³⁷By the time she saw Dr. Loritz in June 2019, the applicant had stopped

treatment at Toronto Health Care for about two months and was using about 12

Advil per week to address her back and shoulder pain.

[74] Both Dr. Loritz and Dr. Jugnundan testified that the use of two Advil per day was

appropriate. However, Dr. Loritz testified that prolonged use of Advil could have

³⁶Ex.2: IE report by Dr Jugnundan p.82, the applicant was attending the clinic for chiropractic,

physiotherapy and acupuncture treatment and was able to do her household chores but at a slow

pace.

³⁷Ex.10: clinical notes and records from Westhill Medical Centre

Page 20 of 29

adverse effects on the kidney. He also testified that the downside to passive

therapy is the risk of muscles becoming looser and of developing postural issues.

[75] Dr. Loritz testified that if the applicant had chronic pain syndrome, a chronic pain

program that teaches a person to live with the pain is a good program. He

testified that the treatment plan in issue did not fall anywhere near this category.

The psychological component of the program included behavioural and cognitive-

behavioural therapy, which Dr. Jacobs stated in his treatment plan, proves to be

quite effective for patients willing to accept and adapt to the chronic pain. The

applicant was receiving counselling from a psychotherapist. ³⁸The respondent

has since approved psychological treatment by Dr. Andrew Shaul, psychologist.

Dr. Jacob’s chronic pain program includes a multidisciplinary approach with Dr.

Shaul rather than a psychotherapist. As Dr. Shaul has already been treating the

applicant, I find that a shift to a multidisciplinary approach with cognitive

behavioural psychological treatment by a psychologist rather than a

psychotherapist is reasonable and necessary for the applicant to accept and

adapt to her chronic pain.

[76] According to Dr. Loritz, the recommendation for Botox injections was reasonable,

but the remainder of the treatment plan was a repackaging of treatment the

applicant had already received. I find that one difference from the applicant’s past

treatment is that the psychological treatment recommend by Dr. Jacobs is to be

provided by a psychologist rather than a psychotherapist.

[77]

Dr. Loritz testified that a reliance on passive treatment does not solve the

problem and it is hard with a passive program to motivate a person to exercise.

However, he reported that, in addition to passive therapy, the applicant also did

treadmill, stretching, and ball/elastic resistance exercises at Toronto Healthcare

Inc.. Those exercises are active therapy. The chronic pain treatment plan

includes both passive and active treatment modalities. The active component of

the chronic pain program is in keeping with Dr. Loritz’s suggestion and is,

therefore, reasonably necessary. I have already found that passive therapy, other

than shockwave therapy, is reasonable and necessary for the applicant’s pain

control.

[78] Part of the chronic pain program involves shock wave therapy. Until the applicant

completes the shock wave therapy recommended by Dr. Saranjit Kaira and,

unless it assists her with her pain complaints and mobility, it is a duplication of

services and, therefore, I am unable to find that it is reasonable or necessary.

³⁸Ex.29: clinical notes and records from Toronto Healthcare, Psychological Counselling Logbook, p.679

Page 21 of 29

Otherwise, I find the other passive therapy, the active therapy, and the

psychological treatment are all reasonable and necessary.

E.

Psychotherapy CDs

[79] The applicant is seeking $627.92 for psychological CDs from Toronto Healthcare

Inc. recommended by Dr. Andrew Shaul, psychologist, in a treatment plan dated

December 7, 2018, and denied by the respondent on December 18, 2018. The

respondent denied the cost of CDs because there was no explanation provided

about their cost. The respondent submits, and I agree, that the onus is on the

applicant to prove the cost of the CDs was reasonable.

[80] The respondent relies on 16-000940 v Certas Direct Insurance Company, 2016

96161 (ON LAT), in which Certas’ psychological IE assessors determined

the insured suffered a psychological impairment. The insured submitted that the

IE reports proved that he had a psychological impairment in need of treatment.

The Tribunal determined that the submission failed to demonstrate that the

requested psychological services were reasonable and necessary for the

applicant’s impairment. There was not enough to connect the dots between the

applicant’s impairment and the appropriateness of the treatment. In that case, the

insured was not very motivated to receive counseling and was coping

satisfactorily with stressors. The insured’s psychologist attempted to address the

reasonableness and necessity of the disputed treatment in his treatment plan

and his report. However, those documents did not provide sufficient detail

explaining why the specific treatment requested was reasonable and necessary

for the insured’s specific impairment. It made clear that ‘treatment’ was

necessary. The Adjudicator determined that more was required to discharge the

applicant’s onus.

[81] In this case, the applicant testified that she did not have any psychological issues

prior to the accident. Since the accident she is more emotional, has mood

swings, cries at times, and has nightmares and panic attacks. She testified that

she has a panic attack when she has to ride in a car. She was nervous riding in a

car before the accident and, when she used to ride to work with her supervisor,

she always sat in the back seat. Since the accident, she had a panic attack for

which she ended up at the hospital.

[82] The respondent relied on the evidence of Dr. Arpita Biswas, a psychologist who

conducted an IE assessment of the applicant on August 12, 2019. The

respondent submitted that Dr. Biswas confirmed that the applicant’s vehicle

phobia resolved. Dr. Biswas determined that, as a result of the accident, the

applicant has symptoms of anxiety, depressed mood, occasional pain pre-

Page 22 of 29

occupation and some fear of being in a vehicle.³⁹I am unable to find that that the

applicant’s fear of being in a vehicle means that her vehicle phobia resolved.

[83] Dr. Shaul recommended the purchase of a series of four CDs comprised of

relaxation and pain management exercises. A description of each CD was

provided in Dr. Shaul’s treatment plan along with the goal each CD was meant to

achieve and a description of the exercises.⁴⁰Given the findings of Dr. Biswas

and the other psychological assessors that the applicant has symptoms of

anxiety Dr. Shaul’s diagnosis of Adjustment Disorder with Mixed Anxiety and

Depressed Mood and Specific Phobia,⁴¹and the diagnosis of chronic pain, I find

that the CDs were necessary for instructing the applicant on exercises for

reducing her anxiety and managing her pain.

[84] The actual cost for a set of four CDs that address pain management and

relaxation was $400.00 or $100.00 each. The remaining fees set out in the

treatment plan were $63.72 for a chiropractor to prepare the treatment plan at a

rate of $112.81 per hour and $112.20 for Dr. Sahul to provide education and

instruction at $149.61 per hour.

[85] The hourly fees are within the Professional Services Guideline. The time for

preparing the treatment plan and for instructing the applicant about the CDs was

reasonable. Because the exercises are available from the CDs, once the

applicant has completed her psychological treatment, she does not have to go

back to seeing a psychologist at $149.61 per hour for re-education and a

refresher on anxiety and pain reduction techniques when refreshers on those

techniques are due. She will be able to refer to the CDs, the cost of each which is

less than Dr. Shaul’s hourly fee. There was no evidence that the cost of the CDs

was unreasonable or that the CDs were available at a lesser cost. Therefore, for

all of these reasons, I find that the CDs are reasonable and necessary for

treating the applicant’s psychological impairments that were the result of the

accident.

F.

Cost of Examinations

[86] The respondent is required to pay for a health practitioner’s fees that are

necessary for reviewing and approving a treatment plan if any one or more of the

services recommended in the treatment plan are approved by the respondent,

³⁹Ex.22:IE report of Dr. Biswas dated August 26, 2019

⁴⁰The treatment plan was not made an exhibit but was referred to by both parties and is contained in the

applicant’s brief.

⁴¹Ex.24: report of Dr. Shaul of October 2, 2018

Page 23 of 29

deemed payable under the Schedule or are determined by me to be payable.

The onus is on the applicant to prove on a balance of probabilities that the

assessment was necessary and that the fees charged were reasonable. The

respondent is not required to pay for fees that exceed the maximum rates in the

Professional Service Guidelines or that exceed $2,000.00.⁴²

Driver Rehabilitation Assessment

[87] The respondent approved a treatment plan recommending driver rehabilitation

but did not approve a treatment plan for a driver rehabilitation assessment

submitted on February 14, 2019 in the amount of $1,981.71 that was to be

conducted at Toronto Healthcare Inc. Neither party filed any such treatment plan

as an exhibit. However, the applicant’s brief contained a treatment plan prepared

by Dr. Andrew Shaul dated January 25, 2019 recommending a driving

rehabilitation assessment.

[88] The respondent relied on 16-000940 v Certas Direct Insurance Company, 2016

96161 (ON LAT) at para.12 and submitted that an assessment is not

reasonable when a diagnosis has already been made. The applicant submitted

that it was necessary for the assessment to be done before the driver re-

integration treatment plan could be prepared. In response to the respondent’s

submission, she also submitted, without any supporting evidence, that a

psychologist must do reassessments to determine a patient’s progress.

[89] I do not find that 16-000940 v Certas Direct Insurance Company stands for the

determination submitted by the respondent. Having said that, if the driver

reintegration assessment in issue is the one recommended by Dr. Shaul in his

January 25, 2019 treatment plan, I find that it is a duplication of services and is

neither reasonable nor necessary for the following reasons.

[90] The treatment plan contemplates that Dr. Shaul would conduct the assessment.

However, by the time the disputed treatment plan was prepared, Dr. Shaul had

already supervised an assessment from which he diagnosed the applicant with a

Specific Phobia (travelling in and around a vehicle). A treatment plan for the

driving reintegration program was able to be prepared without the disputed

assessment being conducted. Further, Dr. Shaul did not set out how many hours

were required to conduct the assessment. He indicated what his hourly fee was,

but only provided a total cost of $1,981.70 for the assessment without a

breakdown of the time it would take him to do the assessment. Accordingly, I

have no way to determine the reasonableness of the cost. For these reasons, I

⁴²Section 25 of the Schedule

Page 24 of 29

find the applicant has failed to prove on a balance of probabilities that the driver

reintegration assessment is reasonable or necessary and her claim for the

assessment is dismissed.

Chronic Pain Assessment

[91] The only exhibit before me that dealt with a chronic pain assessment is a

treatment plan dated September 21, 2018 prepared by Dr. Jacobs in the amount

of $2,000.00. The purpose of the assessment was to evaluate the extent of the

applicant’s injuries and provide a prognosis and recommendations for recovery.

Given that the applicant continued to complain of pain in her neck, left shoulder

and back more than eight months post accident, I find that a chronic pain

assessment was necessary for determining whether she had chronic pain

syndrome and to assess what treatment she required.

[92] Dr. Jacobs conducted the assessment on March 27, 2019. He provided no

indication in his treatment plan or his report on the length of his assessment or

his hourly fees. He reported that he was asked to review an extensive number of

documents but did not provide a list. Accordingly, I am unable to determine

whether the cost of the assessment was reasonable.

[93] Although I find a chronic pain assessment was required for the purpose of

reviewing or preparing a treatment plan, I am unable to determine whether Dr.

Jacob’s fees are reasonable. Without any information on the hourly fees charged

or the time it took for Dr. Jacobs to conduct his assessment, the applicant has

failed to prove on a balance of probabilities that the fees charged are reasonable.

Accordingly the claim for a chronic pain assessment as recommended in Dr.

Jacob’s September 21, 2018 treatment plan is dismissed.

Psychological Pre-Screening Report

[94] The applicant is seeking entitlement to $200.00 for a psychological pre-

screening assessment at Toronto Healthcare Inc. recommended in a treatment

plan submitted July 13, 2018 and denied July 13, 2018. No treatment plan for this

amount was entered as an exhibit or referred to by any of the parties. A

psychological pre-screen interview report dated January 25, 2018 by Dr. Andrew

Shaul was filed as an exhibit. Dr. Shaul stated the purpose of the report was to

ask the applicant some questions to determine whether a treatment plan applying

for a psychological assessment was warranted.

Page 25 of 29

[95] After the hearing, the parties were asked to submit the treatment plan

recommending the pre-screening report. The applicant confirmed there was no

treatment plan.

[96] Under s.38(2) of the Schedule an insurer is not required to pay for the cost of an

examination unless a treatment plan is first submitted. ⁴³As no treatment plan

was ever submitted for the pre-screening report, the cost of the pre-screening

report is not payable by the insurer. This claim is dismissed.

G. Regulation 664 Award

[97] Section 10 of Reg. 664 gives the Tribunal jurisdiction to make an award if an

unreasonably withheld or delayed payments. If I find that the respondent did so, I

may award a lump sum of up to 50 percent of the amount to which the applicant

was entitled at the time of the award together with interest on all amounts then

owing.

[98] It is well settled law that an award should not be ordered simply because an

insurer made an incorrect decision. Rather, in order to attract an award, the

insurer’s conduct must be “excessive, imprudent, stubborn, inflexible, unyielding

or immoderate.⁴⁴The applicant submitted that this describes the respondent’s

conduct because it failed to carefully consider all of the evidence and closed its

mind to all the other medical evidence. The applicant submitted that I should

apply the maximum 50% award because she has incurred over $18,000 in

treatment and examination expenses out of her own pocket, which has caused

her significant harm. She could not point me to any evidence of the significant

harm but submitted I can draw an inference that she suffered such harm. I am

unable to do so without any evidence that the applicant was experiencing

something like stress or anxiety due to debts or finances or any other evidence of

harm.

[99] The respondent submitted that it was never provided with the particulars of the

applicant’s claim for an award and that to do so in her closing submissions is

procedurally unfair. The respondent relied on 17-008304 v Aviva Insurance

Canada, 2018 130868 (ON LAT) in which the Tribunal refused to consider

particulars regarding a Reg.664 award set out in the applicant’s reply

submissions. The insured in that case did not provide particulars regarding the

⁴³An exception in s.38(2) states an insurer may be liable for payment for certain medical or rehabilitation

expenses under $250.00 without having to submit a treatment plan. However, the exceptions do not

include the cost of an examination.

⁴⁴17-006757 v Aviva Insurance Canada, 2018 81949 (ON LAT), para.28, M.P. v Aviva General

Insurance Company, 2019 119736 (ON LAT), para. 18

Page 26 of 29

award in her initial submissions. The Tribunal determined that to provide

particulars so late in the reply was not appropriate because the respondent had

no opportunity to respond.

[100] The applicant submitted that the respondent never once requested written

particulars. I do not see how there is any obligation on the respondent to ask for

the particulars. The onus is on the applicant to prove that the respondent

unreasonably withheld or delayed payments. Procedural fairness requires that if

an insured person is claiming the award, she must advise the insurer of the

particulars of the award in time for it to know the case it has to meet. It is not up

to the respondent to request the particulars. Otherwise, the particulars would not

be required to be provided on an application. An insured person cannot wait until

the end of a hearing to provide particulars.

[101] In this case the applicant stated on her application that the adjusters’ log notes

were required for the applicant to provide full particulars. Given my findings

above on the applicant’s delay in filing a motion for the production of the

adjusters’ log notes, I am unable to find that the applicant thought there was

good reason for seeking an award. Otherwise, she would have moved in a timely

fashion to obtain the adjusters’ log notes so that she could meet her obligation.

[102] I am persuaded by the reasoning in 17-008304 v Aviva Insurance Canada. The

applicant’s request for an award is dismissed.

[103] Further, if the applicant had provided the particulars of her claim in a timely

manner, I would have found that she was not entitled to an award. The

respondent’s approval of the applicant’s claims for psychological treatment and a

psychological assessment before the hearing is evidence that the respondent did

turn its mind to the applicant’s medical evidence.

[104] I also find that this was a difficult case, especially with respect to the IRBs given

the lack of information. The respondent would have had no way to know Dr.

Loritz’s opinion on chronic pain unless it conducted as thorough a cross-

examination of him as the applicant’s legal representative did. That is not

something normally done in adjusting claims. While I find that the applicant

proved her entitlement to some of the benefits sought on a balance of

probabilities, she barely satisfied her onus. Accordingly, if the applicant had

provided the particulars of the Reg. 664 award to the respondent and the

Tribunal prior to the hearing that she presented in her closing submissions, I

would have found there was no unreasonable delay.

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H. Interest

[105] The applicant is entitled to interest on the payment of any overdue benefits in

accordance with the Schedule. I find that the IRBs are not overdue because they

are not payable until the respondent has the information that would allow it to

calculate the amount of the applicant’s post-accident income. For these reasons,

I make no order with respect to interest on the applicant’s IRBs.

CONCLUSION AND ORDER

[106] The applicant is entitled to IRBs up to June 2018 subject to a deduction for

income earned in accordance with the Schedule. I make no order requiring

payment of IRBs because the respondent has not been provided with the

information necessary to calculate the IRB owed.

[107] The applicant is entitled to medical benefits for chiropractic, massage therapy

and acupuncture services from Toronto Healthcare Inc. recommended in the

following treatment plans:

a. in the amount of $2,581.08 recommended by Dr. Minnella. in a treatment

plan dated December 15, 2017;

b. in the amount of $1,465.10 recommended by Dr. Minnella in a treatment

plan submitted May 3, 2018;

c. in the amount of $1,383.74 recommended by Dr. Minnella in a treatment

plan dated June 28, 2018;

d. in the amount of $1,186.45 from Toronto Healthcare Inc. recommended

in a treatment plan dated August 23, 2018; and

e. in the amount of $1,183.74 recommended by Dr. Kaira. in a treatment

plan dated October 23, 2018.

[108]

[109]

The applicant is entitled to psychological CDs from Toronto Healthcare Inc. in

the amount of $627.92 recommended By Dr. Shaul in a treatment plan dated

December 7, 2018.

The applicant is entitled to $1,800 for shockwave therapy recommended by Dr.

Kaira of Toronto Healthcare Inc. in a treatment plan dated October 23, 2018.

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[110]

The applicant is entitled to $11,606.56 ($14,606.56 less $3,000.00 for

shockwave therapy) for a chronic pain program from Toronto Healthcare Clinic

Inc. recommended by Dr. Karmy in a treatment plan May 8, 2019.

[111] The applicant’s claims for the following cost of examination expenses are

dismissed:

a. $1,981.71 for a driving rehabilitation assessment at Toronto Healthcare

Inc. recommended in a treatment plan submitted February 14, 2018, and

denied by the respondent on February 26, 2018;

b. $2,000 for a chronic pain assessment recommended by Dr. Jacobs in a

treatment plan dated September 21, 2018; and

c. $200.00 for a psychological pre-screening assessment, at Toronto

Healthcare Inc. recommended in a treatment plan submitted July 13, 2018

and denied July 13, 2018.

[112] The applicant’s claim for an award under Reg. 664 is dismissed.

[113] The applicant is entitled to receive interest on the overdue payment of benefits in

accordance with the Schedule.

Released: July 4, 2022

__________________________

Deborah Neilson

Adjudicator

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