Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3

In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260

1-800-255-2214

TTY: 416-916-0548

1-844-403-5906

Fax: 416-325-1060

1-844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest,

Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260

1 800 255-2214

ATS : 416 916-0548

1 844 403-5906

Téléc. : 416 325-1060

1 844 618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

Date: 2017-04-26

Tribunal File Number: 16-000958/AABS

Case Name: 16-000958 v Aviva Insurance Canada

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:

C. T.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Monica Purdy APPEARANCES:

Counsel for the applicant: Mark Vella Counsel for the respondent: Jessica Bacopulos

Written hearing: November 21, 2016

I. INTRODUCTION

1. The applicant, CT, was injured in a motor vehicle accident on November 3, 2014. Prior to the accident the applicant worked full-time as a kitchen helper. After the accident, CT was unable to work for periods of time and she made a claim to Aviva, the respondent insurer, for income replacement benefits (IRBs). She also made claims for physiotherapy and chiropractic treatment. All of these claims were denied by Aviva and the applicant applied to the Licence Appeal Tribunal. ¹

2. The respondent denied the claim for income replacement benefits for several reasons. Initially the claim was denied because the applicant was late in responding to a request for information. Later, the respondent’s assessor’s determined that the applicant did not meet the test for IRBs – namely that she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment.

3. I find that the applicant is entitled to income replacement benefits because her physical and psychological injuries prevented her from performing the essential tasks of her pre-accident employment for the time periods claimed.

4. I find that the treatment plans for chiropractic and physiotherapy were not reasonable and necessary because the applicant’s physical injuries were mostly resolved for the time periods in which they were claimed.

II. ANALYSIS

Income Replacement Benefits

5. The applicant is claiming a weekly income replacement benefit in the amount of $400.00 per week ² for the following three periods:

• Period 1: November 10, 2014 - March 15, 2015;

• Period 2: April 1, 2015 - July 1, 2015; and

• Period 3: January 10, 2016 - November 3, 2016.

The respondent has raised a preliminary issue with regards to Period 1 which I will deal with that first.

Period 1: November 10, 2014 – January 18, 2015

Should the applicant be denied income replacement benefits because of her late submission of financial information?

6. Section 33 of the Schedule states that the applicant has a duty to provide any information that is reasonably required by the insurer, within 10 days of the request. An insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply.

7. The respondent submits that the applicant failed to provide information requested, within the required 10 days, and, as such, the applicant is not entitled to income replacement benefits. Specifically, the applicant was asked to provide a paystub, Employment Confirmation Form (OCF-2) and her 2013 income tax return. The documents were requested on November 21, 2014 and were required to calculate the weekly amount of the income replacement benefits.

8. The applicant provided the respondent with her 2014 income tax information and the Employer Confirmation Form on January 19, 2015. The pay stub information was provided on February 6, 2015.

9. An insurer can request any information they wish; however, the request must be reasonable. I find that the Employer Confirmation Form was a reasonable request. In this case the information allows the respondent to make a proper determination of the quantum needed to process the applicant’s income replacement claim and to adjust the file accordingly. I find that that respondent had sufficient information to calculate the weekly income replacement benefits amount as of January 19, 2015 when the applicant submitted the Employer Confirmation Form.³

10. Section 33 (8) of the Schedule states that any amounts withheld by the insurer are payable if the applicant provides a reasonable explanation for the late information. In this case, I was not provided with any explanation by the applicant for why the requested information was late. Therefore, the respondent is not liable to pay the benefit from November 10, 2014 to January 18, 2015 when they received the Employer Confirmation Form.

Period 1: January 19, 2015 to March 15, 2015

11. The applicant attended several insurer’s assessments on January 8, 20, and 27 2015. The assessors determined that the applicant was able to perform the essential tasks of her pre-accident employment. The insurer denied the income replacement benefits in an Explanation of Benefit dated February 12, 2015.

Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment?

12. Section 5(1) of the Schedule sets out the test for income replacement benefits. The applicant must show that she suffers a substantial inability to perform the essential tasks of her pre-accident employment. At the time of the accident the applicant worked as a kitchen helper. The Employer’s Confirmation Form listed her duties as: serving customers, food preparation, opening and closing the restaurant and setting up tables. The applicant’s pre-accident employment required a lot of standing and lifting.⁴

13. I find that the applicant is entitled to income replacement benefits for the period from January 19, 2014 to March 15, 2015. The Disability Certificate completed by Dr. Dineshkumar dated November 5, 2014 indicated that the applicant sustained neck level injury of muscle and tendon and sprain and strain of other parts of the shoulder girdle. Dr. Dineshkumar indicated that the applicant was substantially unable to complete the essential tasks of her employment and could not return to work on modified duties.

14. The applicant attended three insurer examinations in respect of her income replacement benefits claim: a medical assessment by Dr. Gelman on January 8, 2015; a neurology assessment conducted by Dr. Fishman and a psychological assessment conducted by Dr. Syed on January 20, 2015. The assessors concluded that the applicant did not suffer a substantial inability to perform the essential tasks of her employment.⁵

15. From a physical perspective, Dr. Gelman determined that as a result of the accident, the applicant sustained a strain/sprain injury to the cervical spine (WAD-II) and shoulder girdle musculature. Dr. Gelman did not find objective signs of accident related impairment that would render the applicant substantially unable to perform the essential tasks of her employment. Despite this finding however, Dr. Gelman indicated that “it would be reasonable to provide [the applicant] with 3 to 4 weeks more of subjective recovery before resuming her employment activities”.

16. From a psychological perspective, Dr. Syed diagnosed the applicant with Adjustment Disorder with Anxiety and Depressed Mood. However, Dr. Syed found that the nature and severity of her impairment did not prevent her from performing the essential tasks of her pre-accident employment as a kitchen helper in the insurer’s examination summary report of February 2015.

17. The respondent submits that the reason the applicant left her job was not related to the accident. The basis for this claim is an assessment conducted by, Dr. Jim Gestos, Chiropractor⁶ in which the applicant advised that she left her job because she did not like it. As such, the respondent is of the view that the applicant is capable of performing the essential tasks of her employment. The applicant’s medical and affidavit evidence however contradicts this assertion and I accept that she left her employment as a result of her impairment at the time.

18. Typically, an insurer is required to pay benefits up until the release of the assessor’s report, which in this case was February 10, 2015. The assessor, Dr. Gelman, indicated that the applicant required an additional 3-4 weeks of recovery, which would bring payment of these benefits, at the earliest date, to March 5, 2015 and the latest date, March 22, 2015. However, the applicant returned to work on March 16, 2015 and worked until March 31, 2015 when she stopped due to her ongoing injuries.

19. Based on the nature of the applicant’s job, the disability certificate and Dr. Gelman’s report, I find that the applicant is entitled to income replacement benefits from January 19, 2015 to March 15, 2015, as claimed.

Period 2: April 1, 2015 to July 1, 2015,

Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment?

20. The applicant submits that her psychological injuries prevented her from performing the essential tasks of her pre-accident employment for both time periods #2 and #3. In support of this claim she relies on the following:

• Dr. Syed’s psychological assessment dated April 27, 2016

• Dr. Pillai’s affidavit dated October 21, 2016; and,

• Dr. Pillai’s psychological assessment dated June 11, 2016.

21. I find that the applicant meets the test for income replacement benefits for both of the time periods claimed between April 1, 2015 and November 3, 2016 as a result of her psychological impairments.

22. The applicant attempted to return to work on March 16, 2015. She worked for approximately 2 weeks until March 31, 2015. She indicated that she had to leave her job because she was not able to meet the physical demands of her employment and not because she did not like her job. Dr. Syed’s insurer's examination report in April 2016 noted that the applicant indicated that she was no longer able to sweep or mop floors due to pain in her shoulder. Dr. Syed noted that the applicant would still be able to operate the cash register, however she also noted that even this task would be challenging because it required standing for long periods of time. The applicant stopped work on March 31, 2015 as a result of her ongoing impairments.

23. The applicant was also suffering from psychological impairments during this time period. In support of this finding, I have relied on the psychological reports of Dr. Syed and Dr. Pillai dated April 2016 and June 2016, respectively. I find that although these reports were not authored until 2016, they do refer to the applicant’s impairments and support the assertion that the applicant had been suffering from a psychological impairment since at least January 2015 when she was first diagnosed by Dr. Syed. Both doctors noted a deteriorating psychological condition. The psychological reports as well as the applicant’s affidavits consistently described signs and symptoms to indicate the applicant was substantially unable to perform the essential tasks of her employment since the November 2014 car accident.

24. Dr. Pillai made reference to the original psychological report of Dr. Syed from January 2015 to demonstrate the applicant’s ongoing psychological impairment. In particular, he highlights that the applicant reported issues with concentration, forgetfulness, and was easily angered and fatigued. Dr. Pillai’s affidavit also indicated that given the nature of her pre-accident employment, she was prevented from performing the essential tasks of her employment due to the nature of her injuries.

25. I find that the applicant meets the test for income replacement benefits for time period #2 as a result of her ongoing psychological impairments.

Period 3: January 10, 2016 - November 3, 2016

Does the applicant suffer a substantial inability to perform the essential tasks of her pre-accident employment?

26. Much of the applicant’s treatment had been focused on her physical injuries, but little had been done to treat her psychological issues until the summer of 2016. I find that the applicant’s untreated psychological problems while recovering from her physical injuries interfered with the applicant’s ability to complete the essential tasks of her employment.

27. Dr. Syed conducted a follow-up assessment and issued a report dated April 14, 2016. She noted that the applicant appeared to have made minimal recovery post-accident and appeared to be struggling with a deterioration in her psychological presentation since the applicant was last assessed in January 2015. Dr. Syed diagnosed the applicant with Adjustment Disorder with Anxiety and Depressed Mood; Somatic Symptom Disorder, mild in severity.

28. Dr. Pillai also assessed the applicant in June 2016, now 19 months post-accident. He reports that the applicant’s emotional issues were severe enough to interfere with her work. He further noted that on the World Health Organization Disability Assessment Schedule, the applicant scored an extreme disability with respect to Life Activities-School/Work.

29. I find that from a psychological perspective the applicant meets the test for income replacement benefits during this time period.

30. In July 2015, the applicant again attempted to work and got a job in a factory. According to the applicant, this job was easier than her pre-accident employment because she could alternate between standing and sitting and there was no heavy lifting involved. The applicant indicated that:

I also found this job easier to cope with mentally as it was not as fast paced as the restaurant and I was not required to multitask. While my physical condition has improved, I have noticed that my psychological condition has deteriorated.

31. Although the applicant worked from July 2015 to January 2016 she was laid off due to a shortage of work. Both the respondent’s and the applicant’s psychologist noted deterioration in the applicant’s psychological condition for this time period.

32. In April 2016 the applicant saw Dr. Syed. She also saw Dr. Pillai in June 2016. In Dr. Pillai’s affidavit, he referenced the January 2015 report of Dr. Syed noting that the applicant reported: “cognitive symptoms of difficulty concentrating, forgetfulness and multitasking significantly affected her ability to function effectively in her social, occupational or other important areas of functioning”. Dr. Pillai indicated that the applicant’s psychological symptoms have increased over time. He recommended that the applicant undergo treatment and an in-vehicular assessment.

33. In her affidavit dated October 22, 2016, the applicant reported ongoing improvement of her physical injuries. However, in reference to her psychological condition the applicant stated in her affidavit:

I have difficulty concentrating, have slow recovery time. I am forgetful and have a lot of difficulty with multitasking. These symptoms significantly affect my ability to function both at work as well as my day to day activities.

34. Dr. Syed concluded in his April 2016 report that the applicant “is suffering from sufficient psychological overlay to her pain presentation at this juncture to meet diagnostic criteria for a Somatic Symptom Disorder.” Dr. Syed noted that the applicant’s symptoms have not ceased and approved the treatment plan recommended by Dr. Pillai. It is Dr. Syed’s opinion that the treatment plan was reasonable and necessary to prevent further deterioration of the applicant‘s condition.

35. I am of the view that Dr. Syed and Dr. Pillai’s findings on the applicant’s psychological injuries support her entitlement to income replacement benefits from January 10, 2016 to November 3, 2016. Although the applicant has attempted to work, her ability to concentrate and multi-task is required to perform the essential tasks of her employment in a fast paced environment. I find the evidence shows from a psychological perspective that the applicant was not able to perform the essential tasks of her pre-accident employment.

Medical Benefits

36. The respondent denied 5 separate treatment plans for chiropractic and physiotherapy services submitted over the period April 20, 2015 to January 2016.⁷ The parties agree that the Applicant’s injuries fall outside of the Minor Injury Guideline due to a psychological impairment. In this case, the test is not whether the applicant’s injuries are minor, but whether the treatment plans are reasonable and necessary. The respondent’s position is that the applicant’s physical injuries are minor and the treatment plans are not reasonable and necessary.

Treatment plans for chiropractic and physiotherapy dated April 20, 2015, June 8, 2015, October 16, 2015 and November 27, 2015

37. The goals listed in these treatment plans are to increase range of motion, increase strength and pain reduction. The applicant explained in her affidavit that her physical condition has continued to improve. It is her psychological injuries that is the greatest barrier to her recovery. As such, I find that the treatment plans in dispute are not reasonable and necessary.

38. The respondent relied on the reports of Dr. Bhavgara dated December 4, 2015 and of Dr. Millard dated July 7, 2015. Dr. Millard’s assessment indicated a demonstrated active range of movement in all planes and normal neurological examination. Dr. Bhavgara noted that the applicant experienced discomfort in the subocciptal musculature and over the cervical paraspinal musculature bilaterally at an intensity of 1-2/10 currently and 10/10 following the accident.

39. The most recent assessment from February 25, 2016 by Dr. Gestos, chiropractor, noted that the applicant reported pain levels of 0-2/10. At times the pain is 0/10. The applicant also reported an overall level of improvement of 90 to 95%.

40. I find that the treatment plans that are in dispute are for physical injuries for which the treatment goals to reduce pain, increase strength and increase range of motion has been met. The applicant’s condition, however, is predominantly psychological for which she has received treatment outside the Minor Injury Guideline. I find that the Applicant’s physical injuries have been mainly resolved and were successfully treated under the Minor Injury Guideline in the treatment plans dated April 20, 2015, June 8, 2015, October 16, 2015 and November 27, 2015. As such, I find that the treatment plans are not reasonable and necessary.

Treatment plan dated for physiotherapy services dated January 11, 2016

41. The January 11, 2016 treatment plan was submitted to the insurer on January 19, 2016. The insurer responded by way of an Explanation of Benefits on February 5, 2016, 16 days after it was received.

42. The applicant’s position is that the insurer failed to respond to the treatment plan within 10 days and, as such, is required to pay for the goods and services. Although the applicant indicated in her submissions that all of the treatment claimed was fully incurred, the January 11, 2016 treatment plan was not among them⁸.

43. The respondent claims that it is only liable to pay for incurred expenses between February 3, 2016, the 11th business⁹, and February 5, 2016 the day that the Explanation of Benefits was provided. I find that the applicant did not establish that the expenses were ever incurred for those three days. The respondent is not liable to pay the January 11, 2016 treatment plan because it was not incurred.

III. ORDERS

44. I order the following:

a. The applicant is entitled to income replacement benefits at the rate of $400 weekly for the following time periods:

• Period 1: January 19, 2015 – March 15, 2015;

• Period 2: April 1, 2015 - July 1, 2015; and

• Period 3: January 10, 2016 - November 3, 2016

b. The applicant is not entitled to receive a medical benefit in the amount of $3,158.20 for physiotherapy services recommended by Gibson Wellness Centre Inc. in a treatment plan dated January 11, 2016

c. The applicant is not entitled to receive $3,684.70 for a medical benefit for chiropractic services recommended by Gibson Wellness Centre Inc. in a treatment plan dated April 20, 2015.

d. The applicant is not entitled to receive $3,190.40 for a medical benefit for chiropractic services recommended by Gibson Wellness Centre Inc. in a treatment plan dated June 8, 2015.

e. The applicant is not entitled to receive $3,325.70 for a medical benefit for physiotherapy services recommended by Gibson Wellness Centre Inc. in a treatment plan dated October 16, 2015.

f. The applicant is not entitled to receive $3,375.70 in medical benefit for physiotherapy services recommended by Gibson Wellness Centre Inc. in a treatment plan dated November 27, 2015.

g. The applicant is entitled to interest on all applicable claimed benefits.

Released: April 26, 2017

Monica Purdy, Adjudicator

Footnotes

1. 1The applicant sought benefits under the Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2. 2I note that the weekly amount of the income replacement benefits is not an issue in this appeal.
3. 3The applicant provided her 2014 Income Tax and not the 2013 return that was requested. Given the date of the accident, November 3, 2014, I am of the view that the applicant’s 2014 income tax return in conjunction with the other information provided is sufficient in order to calculate the amount of the income replacement benefits.
4. 4Dr. Pillai’s psychology report dated June 11, 2016
5. 5Report dated February 10, 2015.
6. 6Report dated March 10, 2016.
7. 7Treatment Plan Amounts: #1 April 20, 2015 for $3684.70; #2 June 8, 2015 for $3190.40; #3 October 16, 2015 for $3325.07; #4 November 25, 2015 for $3375.70; and #5 January 11, 2016 for $3158.70.
8. 8Tab I applicant’s submissions
9. 9Section 38(11)(2)