Tribunal File Number: 17-000006/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:
N.N.
Applicant
and
Allstate Insurance Company
Respondent
DECISION
Adjudicator: Rupinder Hans
Appearances:
For the Applicant: Meleni David, Counsel
For the Respondent: Lauren Furukawa, Counsel
Heard in writing: May 17, 2017
OVERVIEW
1The applicant was injured in a motor vehicle accident on September 23, 2015, when his vehicle was rear ended while on a vacation with his family in Virginia, United States of America.
2The applicant applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The respondent Allstate Insurance Company initially paid an income replacement benefit from September 30, 2015 to July 5, 2016, but ceased payment thereafter.
3The respondent further denied payment for a treatment plan related to physiotherapy services, and denied payment for assistive devices, namely orthotic and orthopedic devices.
4The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to the section 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”), seeking the approval of an income replacement benefit, medical benefits and interest on the outstanding benefits.
5A written hearing was scheduled for May 16, 2017, and the parties submitted their respective evidence and written submissions. A review of the evidence and submissions forms the basis of the decision.
ISSUES IN DISPUTE
6The following issues are in dispute:
(a) Is the applicant entitled to an income replacement benefit in the amount of $400.00 weekly from July 6, 2016 and ongoing, on the basis that he is substantially unable to perform the essential tasks of his pre-accident employment?
(b) Is the applicant entitled to a medical benefit in the amount of $2,265.00 for physiotherapy services recommended by Scarborough Physiotherapy and Rehab Centre?
(c) Is the applicant entitled to a medical benefit in the amount of $1,210.00 for other assistive devices recommended by Scarborough Physiotherapy and Rehab Centre?
(d) Is the applicant entitled to a medical benefit in the amount of $830.00 for other assistive devices recommended by Scarborough Physiotherapy and Rehab Centre?
(e) Is the applicant entitled to interest on any outstanding benefit payments?
RESULT
7The applicant is entitled to an income replacement benefit in the amount of $400.00 per week for the period July 6, 2016, to date and ongoing in accordance with the Schedule. The applicant has demonstrated that he is substantially unable to perform the essential tasks of his pre-accident employment.
8The applicant is not entitled to a medical benefit in the amount of $2,265.00 for physiotherapy services recommended by Scarborough Physiotherapy and Rehab Centre.
9The applicant is not entitled to medical benefits for assistive devices in the amounts of $1,210.00 and $830.00, both recommended in treatment plans by Scarborough Physiotherapy and Rehab Centre dated September 19, 2016.
10The applicant is entitled to interest on the income replacement benefits.
DISCUSSION
A. Eligibility to Receive Income Replacement Benefits
11Based upon a review of the evidence before me, I find that the applicant has met the eligibility test for income replacement benefits. To be entitled to an IRB under ss. 5(1)2 of the Schedule, the applicant must establish on a balance of probabilities that, as a result of the accident, he suffered an impairment that renders him substantially unable to complete the essential tasks of his employment as a marble shop worker.
12For purposes of analysis, I will divide the inquiry into three steps:
i. Was the applicant employed at the time of the accident;
ii. Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment; and
iii. Causation
i. Employment at the time of the Accident
13It is undisputed that the applicant was employed at the time of the accident as a marble shop worker. This is confirmed by the respondent’s expert Kinesiologist Renee David, in her two reports, namely, the functional ability evaluation report (the “Functional Ability Report”), and the verbal job site/physical demand analysis report (the “Job Site Report”). The applicant’s expert, chiropractor Dr. Preeya Chauhan, also confirms in the functional ability evaluation report (the “Chauhan Report”).
ii. Does the applicant suffer a substantial inability to perform the essential tasks of his pre-accident employment?
14To answer the question, I must first determine the essential tasks of the applicant’s employment; and second, whether the applicant is substantially unable to perform those essential tasks of his employment.
(a) The essential tasks of the applicant’s employment
15Relying upon the respondent’s Job Site Report, I find as fact that the essential tasks of the applicant’s employment include:
Setting up machine manually based on type, size and thickness of stone as well as number of sides to be polished (2 to 4 sides)
Pushing dolly with stone to loading area of machine in preparation for removing polished stone
Placing stone onto self-feeding belt (manually or using a crane depending on weight of stone)
Taking stone off of self-feeding belt (manually or using a crane) and placing on dolly.
Cleaning machine once a week
16There does not appear to be any dispute as to the essential tasks of the employment. The Job Site Report further states that all stone is moved by crane, however to be hired, a potential employee must be able to lift 50 pounds.
17In the Functional Ability Report prepared on behalf of the respondent, Ms. David confirmed that the Dictionary of Occupational Titles classifies the applicant’s position as medium physical demand level work. This requires exerting 21 to 50 lbs. of force occasionally, and 11 to 25 lbs. of force frequently, and up to 10 lbs. of force constantly. She further confirms that the National Occupational Classification classifies the position as medium level of work, which involves loads between 10 kg and 20 kg, or 22 to 44 lbs. On that point, the Functional Ability Report is somewhat consistent with that of the applicant’s expert in the Chauhan Report, who lists the applicant’s job demands as medium to heavy.
18Based upon a totality of the evidence provided, I am convinced that the work of the applicant was physically demanding work. Although much of the lifting of the stone is done by crane, the applicant must still push a dolly containing stone to the loading area of the machine. In addition, the respondent’s own expert states that to be hired an employee must be able to lift 50 pounds. There is no dispute in this regard. I find as fact that the applicant’s position as a marble shop worker is medium physical demand level work.
(b) Is the applicant substantially unable to perform the essential tasks of his employment as a marble shop worker?
19The applicant asserts that he has shown on a balance of probabilities that he is unable to perform the essential tasks of his employment. In support, he provides the report of Dr. Chauhan, chiropractor, tested the applicant’s ability to perform specific job demands. She found that the applicant demonstrated abilities to meet the following job demands on his right side, including: carry 10 lbs., reach immediate (R), reach overhead (R), handling (R), fingering (R). However, with regards to his left side, he did not demonstrate ability to meet job demand categories and demonstrated functional limitations, including: reach immediate (L), reach overhead (L), handling (L), fingering (L). He was further unable to perform several tests, including: carry 15 lbs., push cart above 40 lbs., pull cart above 40 lbs., stoop, kneel, crouch, and balance. His failure to perform these tasks is significant as they are essential for his job as a marble shop worker.
20Dr. Chauhan states that in terms of physical demands the applicant is unable to have a job beyond sedentary-light due to his lack of strength and full range of motion of his bilateral shoulder L>R, and arm as well as pain in his lumbar spine, and weakness in the bilateral lower leg and knees.
21By contrast, in the respondent’s Functional Ability Report, Ms. David states that the applicant has demonstrated the ability to meet all the demands for marble shop worker with the exception of a partial deficiency in the low lift and carry strength demands. I find this to be a bald unsupported statement and contrary to the extensive testing done by Dr. Chauhan. Ms. David further notes that the applicant reported complaints in his left shoulder, low back and right knee as limiting factors during testing. She concludes that the final opinion regarding whether the claimant meets his pre-accident physical job demands is deferred to the medical specialist on the file.
22I prefer the report of Dr. Chauhan over that of Ms. David. I found Dr. Chauhan’s testing to be thorough and methods sound. I found that Dr. Chauhan was clear in determining that the applicant could not perform any job beyond sedentary-light, by contrast, Ms. David defers judgment in this regard.
23The applicant also relies on his treating family physician Dr. Vinay Jindal, who in a letter dated March 20, 2017, states that the applicant should seek a sedentary job that respects his physical limitations. Dr. Jindal asserts that employment requiring physical labour and repetitive movements are no longer appropriate for the applicant due to his injuries. He refers to the cortisone injections that the applicant received on December 15, 2015, from orthopaedic surgeon Dr. Mohammed Khodabandehloo, and a second injection on October 4, 2016. Dr. Jindal reports ongoing treatment for left shoulder pain, right knee pain, neck and back pain.
24The respondent relies upon the Section 44 reports of Dr. Osama Gharsaa, orthopaedic surgeon. Dr. Gharsaa states that the applicant sustained sprain and strain of his cervical spine, lumbar spine, shoulder and contusions of his right knee. He found the applicant did have some signs and symptoms of mild patellofemoral syndrome, or knee pain. Dr. Gharsaa found that the injuries did not result in any functional limitations or physical restrictions, and were soft tissue injuries. He opined that the applicant has reached maximum medical recovery. Dr Gharsaa provides scant information on the tests performed in reaching his conclusions. There is a brevity of detail in this regard and so I am not persuaded.
25The respondent also puts forward the reports of Dr. Debra Mandel, psychologist, who opines that the applicant has not suffered a psychological impairment as a result of the accident that would render him unable to return to his pre-accident employment. I note that the applicant is not asserting any psychological impairment that would render him unable to return to his pre-accident employment. Thus, I give this report little, if any, weight.
26My decision on the applicant’s ability to perform the essential tasks of his employment turn on his physical abilities and impairments
27After considering all the evidence, I accept the conclusions in Dr. Chauhan’s report, and those of the applicant’s treating family physician Dr. Jindal, over those of Ms. David, Dr. Gharsaa and Dr. Mandel. I find the objective evidence that the applicant experiences pain in his left shoulder, right knee, neck and back, specifically, that the applicant has a lack of strength and full range of motion of bilateral shoulder L>R, pain in his lumbar spine, and right knee to be compelling. Likewise, I accept that the applicant is unable to carry over 15 lbs., push cart above 40 lbs., pull cart above 40 lbs., stoop, kneel, and crouch. These are all essential elements of the applicant’s job. I note that even when the applicant demonstrated his ability to do so, as set forth in the respondent’s Functional Ability Report of Ms. David, he complained of his left shoulder, low back and right knee limitations. I find that the combination of the accident injuries renders him substantially unable to perform his pre-accident employment as a marble shop worker, which is medium physical demand level work.
28The respondent points to the fact that the applicant twice sought and obtained letters from a physician stating that he was able to work as a taxi driver. The applicant counters that the March 7, 2017 letter from treating family physician states that the applicant is not able to perform heavy manual labour that requires lifting, carrying or repetitive movements of the upper body and back. The test is clear, and my analysis thus, focuses on the applicant’s ability to perform the essential tasks of his pre-accident employment as a marble shop worker. I am not persuaded by the respondent’s argument to the contrary.
29The applicant has satisfied me on a balance of probabilities that, as a result of the accident, he suffered an impairment that renders him substantially unable to complete the essential tasks of his employment as a marble shop worker.
iii. Causation
30There is no dispute that the applicant suffered from pre-existing conditions before the accident. The respondent points to the December 5, 2013 x-ray and ultrasound that was conducted on the applicant’s left shoulder when he complained of left shoulder pain prior to the accident date. In addition, the pre-accident report of Dr. Bernard J. Woolford, an orthopaedic surgeon, dated June 10, 2014, states that the applicant was playing volleyball and swung his left arm back, and since such time has been experiencing pain and stiffness in the shoulder. The report of Dr. Lawrence S. Chizen dated January 13, 2014, states the reason for the referral is left-sided shoulder pain. It is not in dispute that the applicant had experienced some pain in his left shoulder prior to the accident. The respondent also points out that a few days prior to the accident, the applicant reported mild right knee pain to his treating family physician Dr. Vinay Jindal. This is also not in dispute. However, the applicant asserts that the pre-existing conditions have been exacerbated by the accident.
31The applicant submits that the pre-existing conditions did not interfere with his ability to work before the accident. The applicant further submits that the accident not only aggravated these injuries, but caused ongoing headache and neck pain, upper and lower back pain, right knee pain and difficulty concentrating. The applicant’s accident injuries as set forth in the Disability Certificate, dated November 16, 2015, include: sprain and strain of cervical spine, sprain and strain of lumbar spine, sprain and strain of the shoulder joint, sprain and strain of other and unspecified parts of knee, and post-concussion syndrome. The accident injuries affect the cervical spine, lumbar spine, shoulder joint, and knee. Under the circumstances, I am persuaded that the motor vehicle accident is responsible for the impairment.
B. Entitlement to medical benefits
32The test for the payment of medical benefits as set forth in section 15 of the Schedule is whether the benefits claimed are reasonable and necessary expenses as a result of the accident. The onus is on the applicant to establish that he meets this test on a balance of probabilities.
33I find that the applicant is not entitled to a medical benefit in the amount of $2,265.00 for physiotherapy services recommended by Scarborough Physiotherapy and Rehab Centre.
34The applicant provides the affidavit of Dr. Jindal in support of his need for continued physiotherapy. Dr. Jindal recommends continued physiotherapy with work hardening and Tylenol 3 and Mobicox for pain and inflammation. However, Dr. Jindal fails to provide any details on the physiotherapy required, or the duration required to address the applicant’s injuries. Unfortunately, the applicant simply fails to provide specificity with regards to the particulars of the treatment plan, including the number of treatments, and the benefit to be obtained. Without this information, I am unable to determine whether the treatment proposed is necessary or reasonable as a result of the accident.
35By contrast, orthopaedic surgeon Dr. Gharsaa states that the applicant has sustained minor soft tissue injuries not requiring any formal facility-based treatment. Instead, Dr. Gharsaa asserts that the applicant should focus on an active home exercise program to help with his conditioning, as well as a core strengthening program to help deal with any residual back pain. In the absence of any evidence to the contrary, I find these recommendations to be reasonable.
36In conclusion, I find the applicant has not met his burden and has not persuaded me that the proposed treatment plan is reasonable and necessary.
C. Entitlement to assistive devices
37The applicant is not entitled to medical benefits for assistive devices in the amounts of $1,210.00 and $830.00, both recommended in treatment plans by Scarborough Physiotherapy and Rehab Centre dated September 19, 2016.
38Chiropractor Dr. Andrew Woo completed both treatment plans seeking assistive device and assessments. Dr. Woo made similar notations in the treatment plans regarding the applicant’s injuries sustained due to the accident and the goals of treatment. The treatment plans indicate that the applicant sustained the following injuries as a direct result of the accident: specifically, sprain and strain of the cervical spine; sprain and strain of lumbar spine; sprain and strain of shoulder joint; sprain and strain of other and unspecified parts of knee; and “postconcussional [sic] syndrome.” The goals of the treatment plans include increase in strength and increased range of motion. The treatment plans seek payment for assessments, orthotic devices and orthopaedic devices.
39Notably the treatment plans and the Disability Certificate make no mention of any foot injury sustained by the applicant as a result of the accident. The applicant provides an assessment from Dr. Omar Qureshi, a chiropodist, dated October 18, 2016, wherein he states upon assessment it is determined that the applicant has, inter alia, diabetic foot, and that custom designed orthotics will assist in normal gait and ambulation.1
40The respondent argues that no medical records have been provided to demonstrate that the accident caused the applicant a foot injury. The respondent further asserts that there are no medical notes or records to suggest any foot pathology that would necessitate an assessment, or the devices sought. The respondent is correct that the applicant did not provide any medical records to demonstrate that the accident caused the applicant a foot injury.
41I am convinced by the arguments of the respondent. The applicant has not met his evidentiary burden. On this basis I find that both treatment plans dated September 19, 2016 are not reasonable and necessary.
D. The applicant’s entitlement to interest
42Section 51 of Schedule states:
- (1) An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this Regulation.
(2) If payment of a benefit under this Regulation is overdue, the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue until it is paid, at the rate of 1 per cent per month compounded monthly.
43I find that interest is payable on the income replacement benefits.
ORDER
44After considering the evidence, pursuant to the authority vested in this Tribunal under the provisions of the Act, I order that:
a. The applicant is entitled to an income replacement benefit in the amount of $400.00 weekly for the period covering July 6, 2016, and ongoing in accordance with the Schedule.
b. The following treatment plan is not reasonable and necessary:
i. $2,265.00 for physiotherapy services recommended by Scarborough Physiotherapy and Rehab Centre.
ii. $1,210.00 for other assistive devices recommended by Scarborough Physiotherapy and Rehab Centre.
iii. $830.00 for other assistive devices recommended by Scarborough Physiotherapy and Rehab Centre
c. The applicant is entitled to interest on the income replacement benefits in accordance with s. 51 of the Schedule.
Released: October 6, 2017