Tribunal File Number: 17-005950/AABS
Case Name:
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
For the Applicant: Mariya Verkhovets, Counsel
For the Respondent: Sophia Chaudri, Counsel
HEARD: Written Hearing: March 19, 2018
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant was injured in a motor vehicle accident on November 28, 2015. He was a seat-belted passenger in a vehicle that collided with another vehicle.
2At the time of the accident, the applicant was working full time at as a lab assistant. The applicant continued to be employed on a full time basis until April 11, 2017 when he was terminated from his employment. The applicant secured and commenced other employment on November 20, 2017.
3The applicant applied to the respondent, Aviva Insurance Company of Canada, for benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“Schedule”). The respondent refused to pay for certain benefits. The respondent also arranged for several Independent Examinations (IE) of the applicant to assess his entitlement for various benefits.
4A case conference was held on December 19, 2017 to determine the issues in dispute. The Tribunal ordered a written hearing.
ISSUES
5Based on the order of the Tribunal dated December 19, 2017, the following are the issues to be decided:
a) Is the applicant entitled to an income replacement benefit for $400.00 per week from April 11, 2017 to November 20, 2017 submitted November 28, 2015 and denied August 17, 2016?
b) Is the applicant entitled to a medical benefit in the amount of $2,173.87 for physiotherapy recommended by Complete Rehab submitted on August 11, 2016, and denied on August 22, 2016?
c) Is the applicant entitled to the cost of an assessment in the amount of $2,460.00 for a psychological assessment recommended by Complete Rehab submitted on February 9, 2016 and denied on March 14, 2016?
d) Is the applicant entitled to the cost of an assessment in the amount of $2,460.00 for an orthopaedic assessment recommended by Complete Rehab submitted on August 10, 2016 and denied on August 22, 2016?
e) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6For reasons set out below, with the exception of the cost of the psychological assessment in the amount of $2,460, I find that the applicant is not entitled to the benefits claimed and to the costs of assessment.
THE LAW AND ANALYSIS
Issue 1: Is the applicant entitled to an income replacement benefit for $400.00 per week from April 11, 2017 to November 20, 2017 submitted November 28, 2015 and denied August 17, 2016?
7The entitlement to Income Replacement Benefit (IRB) is set out under sections 5 and 6 of the Schedule which state, in part, that the insurer is required to pay an insured person an IRB if they suffer, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of their employment.
8Section 33 of the Schedule requires an insured person to provide the insurer with information required for determining entitlement to a benefit within 10 business days and states that the insurer is not liable to pay for a benefit if the insured person fails to comply with the information request. If an applicant subsequently complies with the insurer’s request, pursuant to s.33(8), the insurer shall resume payment of the benefit if a benefit was being paid, and shall pay all the amounts that were withheld during the period of non-compliance.
9The applicant submitted that he is entitled to receive a weekly IRB between April 11, 2017 and November 20, 2017 because he was unable to perform the essential tasks of his per-accident employment and was finally laid off on April 11, 2017.
10The applicant self-reported2 that he started experiencing pain shortly following the accident. At first he sought medical attention from a walk-in clinic. When the pain worsened, he went to see his family doctor, Dr. Sothilingam, who recommended physiotherapy, pain medication and exercise. Following his doctor’s advice, the applicant commenced treatment at Complete Rehab Centre. Despite ongoing treatment, he continues to experience pain.
11The applicant further submitted in his written submission that he made his best efforts to return to work despite his pain. His work as a lab assistant required him to remove hazardous waste, clean the laboratory, and do some administrative tasks. His maximum lifting demands were 220 lb. After failed attempts of performing the essential tasks of his pre-accident employment, he was put on short term disability leave, from which the applicant returned on January 3, 2017. He was finally laid off by his employer. The applicant submits that he should not be penalized for his efforts to return to work.
12The respondent, on the other hand, submitted that the applicant is not entitled to the IRB. Their position can be summarized as follows: First, the applicant has failed to provide relevant documents to the insurer for assessing his IRB claim. Second, the applicant failed to establish that he suffers from a substantial inability to complete the essential tasks of his pre-accident employment and failed to establish a loss of income for the period of time that he is claiming. Finally the applicant’s lay off was a result of his poor work habits, and not as a result of the accident.
13Is the applicant entitled to receive IRB? To answer that question, I need to first consider whether the applicant did suffer, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of their employment.
14A review of the medical evidence revealed that in a Disability Certificate dated December 14, 2015 prepared by Chiropractor Dr. Rahim Jessa of Complete Rehab Centre, the applicant indicated that he was currently working. However Dr. Jessa indicated that the applicant was substantially unable to return to work on modified hours and/or duties. But on January 14, 2016, the Disability Certificate was amended to indicate that the applicant was able to return to modified duties.
15By a letter dated May 2, 2016, the respondent advised the applicant that he was not eligible for IRB, as it was confirmed with the applicant’s representative at the time that the applicant had returned to work and did not miss any time from work.
16Another Disability Certificate dated May 3, 2016 was prepared by Dr. Jessa, confirming that the applicant was able to return to work on modified duties.
17The respondent then arranged for the applicant to undergo a Multidisciplinary Assessment with psychologist Dr. Janet Lews, OT John Duong and Physiatrist, Dr. John Heitzner. The conclusion of the Independent Examinations (IE) was that the applicant did not suffer from a substantial inability to perform the essential tasks of his employment. For instance, according to Dr. Heitzner, from a musculoskeletal point of view, the applicant had no objective musculoskeletal limitation or restriction that resulted in a substantial inability to carry on his pre-accident job as a lab assistant. He had mainly soft tissue injuries that did not lead to any objective musculoskeletal limitation or restrictions. The OT, on the other hand, opined that the majority of the applicant’s job fell in the light physical demand level, and that the applicant’s physical abilities exceeded the light strength level.
18The applicant took issue with the conclusions reached by the IE. Noting that the OT’s report revealed that the applicant was required to conduct a number of tasks including load and unload glassware, push/pull carts, and place glassware into cabinets. The applicant was also required to lift drums of waste up to 220 lb from the floor and onto 4-wheeled cart. The applicant submitted that although he made his best efforts to return to work, he was unable to perform the essential tasks of his pre-accident employment. After failed attempts of performing the essential tasks, the applicant was put on short term disability leave from which he returned on January 3, 2017, and was finally laid off by his employer on April 11, 2017.
19The applicant claims that he should be entitled to the IRB from April 11, 2017 to November 20, 2017 when he found another job.
20While the test for accessing STB may be similar to the criteria for the IRB, given that I do not have the STB file before me, I am unable to make any finding as to whether the applicant was also eligible for IRB during the period when he was on STB. In addition, there is little information regarding the applicant’s medical conditions between April 11, 2017, when he was laid off by his employer and November 20, 2017. The only medical information before me was a clinical note from Dr. Sothilingam, the applicant’s family physician, dated July 24, 2017, in which Dr. Sothilingam noted the applicant complained of “ongoing and acute” low back pain for the past three months. Dr. Sothilingham prescribed Tylenol with codeine to be taken when necessary. There is no other medical report submitted from that time period.
21The lack of medical information, coupled with the IE report which concluded that the Applicant did not have any objective limitations or restrictions, led me to conclude that there is insufficient evidence to find the applicant eligible for an IRB.
22Even if I were wrong on that issue, I find there is insufficient evidence to determine the quantum of the IRB claim. The respondent made requests to the applicant to provide, among other things, the employment file, the STD file, income tax returns and family doctor’s records. Some, but not all of the documents were provided by the applicant after the Case Conference.
23The applicant has not yet provided to the respondent a Declaration of Post-Accident Income and an Employer’s Confirmation Form.
24Thus, I find the applicant has failed to provide relevant information in order to determine the quantum of the IRB payable.
25This point is further related to the second argument made by the respondent, namely, that the applicant has failed to establish a loss of income for the period he is claiming. Section 7 of the Schedule states in part that the weekly amount of an IRB payable to an insured person is determined by calculating 70% of the insured person’s gross weekly income from employment and using the lesser of that number or $400.00, unless increased optional benefits were purchased. Whether or not the applicant was receiving any income between April and November of 2017 would be relevant to assessing the quantum of his entitlement to IRB. I further note that the applicant received severance pay as well as pay in lieu of notice for his termination. All of this information would be relevant in determining the quantum of the IRB payable.
26Given my reasons above, I do not find it necessary to address the last argument raised by the respondent. I note that the applicant did receive a severance package for his termination, which would seem to suggest that he was not terminated for cause. In any event, whether he had “poor work habits” is not relevant.
Issue 2: Is the applicant entitled to receive a medical benefit for in the amount of $2,173.87 for physiotherapy recommended by Complete Rehab submitted on August 11, 2016, and denied on August 22, 2016?
27Section 15(1) of the Schedule requires an insurer to pay for all reasonable and necessary expenses incurred by or on behalf of the insured as a result of the accident for, among other things, chiropractic and physiotherapy services.
28As noted above, the applicant self-reported3 that he developed increased pain in various parts of his body following the accident, including his neck, shoulders and back. He also started to experience dizziness, headaches, and sleeping difficulties. The applicant’s family physician, Dr. Sothilingam examined the applicant on or around December 15, 2016 and prescribed physiotherapy, exercise, pain medication, and hot and cold compression. The applicant then attended at Complete Rehab which submitted a treatment plan for physiotherapy.
29The applicant submitted that the respondent did not provide any reasons for denying the treatment plan, and no IE was requested. The respondent also did not request or review any records. As such, the applicant submitted that the treatment was improperly denied.
30The respondent’s key argument was that the treatment plan was improperly forwarded to the wrong insurer, namely, RBC, at an incorrect address. Complete Rehab was then advised by HCAI that the plan should have been sent to the respondent and not to RBC. Complete Rehab has yet to rectify its error and the treatment plan has never been correctly submitted to the respondent. As the treatment plan was not properly addressed or delivered in the manner specified by the Guidelines and the Schedule, the respondent submitted that it was not liable to pay for it.
31The respondent also argued that the applicant has failed to show that the treatment was reasonable and necessary.
32To address this issue, I begin by examining section 64(2) (i) of the Schedule which provides that any document to be delivered to the insurer, may be addressed to the insurer or its chief executive officer at the insurer’s head office in Ontario as identified in the records of the Superintendent.
33With respect to certain documents listed under s.66 of the Schedule (including a treatment plan), the Schedule further provides in s.64(7) that the document is required to be delivered to the insurer only in a manner specified in the Guideline. Paragraph 4 of s.64(7) states that a document shall be deemed not to have been received by the insurer to whom it is addressed, if it is delivered to the insurer otherwise than as specified in the Guideline.
34I find that there was an undated HCAI print out with respect to the treatment plan, in which an explanation of adjuster response stated: “This is an Aviva claim not RBC”. I also find that the address for the insurer as noted on the treatment plan is the address for RBC and not for Aviva. As such, I find that the treatment plan has been submitted to RBC and not to Aviva.
35As the applicant did not make any reply submission or provide additional evidence in response to the respondent’s argument in this respect, I do not have the benefit of any explanation that the applicant may have, or legal submission he may wish to make, with respect to the error made by Complete Rehab. The record, on its face, supports the respondent’s position that the treatment plan was not delivered to the insurer in the manner required by the Schedule, because it was addressed to RBC. Since the treatment plan was deemed not to have been received by the respondent, the respondent is not liable to pay for the benefits claimed.
Issue 3: Is the applicant entitled to the cost of an assessment in the amount of $2,460.00 for a psychological assessment recommended by Complete Rehab submitted on February 9, 2016 and denied on March 14, 2016?
36The applicant submitted a plan for psychological assessment by Dr. Jon Mills, a psychologist. The respondent denied the plan on the basis that the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury. The respondent then arranged for the IE to determine if the plan was reasonable and necessary.
37The applicant was then assessed by psychologist Dr. Janet Clews on April 13, 2016. Dr. Clews opined in a report dated April 27, 2016 that the applicant did not suffer from any accident related condition and that no further psychological intervention was warranted. Dr. Clews report was sent to the applicant, who then proceeded with the psychological assessment by Dr. Mills on May 10 and June 14, 2016. By a letter dated September 26, 2017, the applicant was advised that the treatment and assessment plan must be signed by the insured person unless the insurer waives that requirement. A signed copy of the treatment and assessment plan has not been provided.
38Relying on the psychological assessment by Dr. Mills, the applicant submitted that he suffers from adjustment disorder and mixed anxiety and depressed mood, and somatic symptom disorder.
39The applicant also submitted that the denial was made outside of the 10 day period as prescribed by the Schedule.
40In response, the respondent cited Colette Douglas v. Aviva (17-002814/AABS) which held that an assessment is not necessarily payable even if the respective treatment and assessment plan was denied more than 11 business days after its submission. Citing also the Court of Appeal for Ontario’s decision in Stranges v. Allstate (2010 ONCA 457), the respondent submitted that the merits of a claim take precedence over procedural irregularities. Finally, the respondent further pointed out that in this case, the assessment was conducted post denial.
41As the respondent has suggested, I began my analysis by considering the merits of the claim, instead of focusing on the procedural irregularities.
42I started by reviewing the report by Dr. Mills, which described the applicant as “genuinely impacted by his current circumstances” and “appeared straightforward” in his approach. Dr. Mills noted in his report the applicant’s description of how the accident has affected his psychological status, including guilt, sadness, irritability, a diminished sense of self, and hopelessness since the accident, as well as concentration difficulties and a loss of interest in activities that previously brought him pleasure. The applicant reported to Dr. Mills that he felt upset because of his constant fatigue and inability to sleep at night. After administering a series of standard tests on the applicant, Dr. Mills concluded that the applicant continued to experience symptoms of emotional distress as a direct result of the accident, and that many of the symptoms are commonly found in individuals suffering from post-accident psychological impairment.
43I have also reviewed the report by Dr. Clews, who essentially devoted one paragraph in her 8 page report to outline the basis of her conclusion as follows:
During the clinical interview portion of the current assessment, there was no evidence for making any DSM-IV diagnosis. Indeed, [the applicant] presents as an articulate man and is not complaining of any significant accident-related psychological symptoms. Indeed, the results of my assessment conclude that [the applicant] is not describing any significant problems in the following areas: unusual thoughts or peculiar experiences; antisocial behaviour; problem. With empathy, undue suspiciousness or hostility; extreme moodiness and impulsivity; unhappiness and depression; unusually elevated mood or heightened activity; marked anxiety; problematic behaviours used to manage anxiety; difficulties with health or physical functioning. Also, [the applicant] is not describing any significant problems with alcohol or drug abuse or dependence.
44Apart from being somewhat incoherent, the paragraph written by Dr. Clews is also filled with generality without providing any specific details as to what, if any, information Dr. Clews obtained from her interview with the applicant. The fact that the applicant is an articulate man is not relevant to his psychological symptoms. Similarly, by saying that the applicant did not describe any “significant” problems with alcohol or drug abuse, Dr. Clews seems to be implying that such problems do exist, and yet she failed to explain its relevance to the reasonableness and necessity of the treatment and assessment plan in question.
45I find the report by Dr. Clews unhelpful in that it is filled with general conclusions without the foundation upon which the conclusions were made, nor does it explain why the proposed psychological treatment plan for the applicant was not reasonable or necessary. Given that the decision made by the respondent to deny the said treatment plan was based on Dr. Clews’ IE report, I find that the respondent’s denial was therefore unreasonable.
46Given that the respondent did not raise the procedural issue of the unsigned treatment plan until about a year and a half after the submission of the plan, and did not base its initial denial on the lack of the signature, and having found the treatment plan to be reasonable and necessary, I therefore find the respondent’s decision to deny the claim unreasonable.
Issue 4: Is the applicant entitled to the cost of an assessment in the amount of $2,460.00 for an orthopaedic assessment recommended by Complete Rehab submitted on August 10, 2016 and denied on August 22, 2016?
47The applicant was examined by Dr. Rahim Jessa from Complete Rehab on August 10, 2016, following which Dr. Jessa recommended an orthopaedic assessment to determine the extent of the applicant’s injuries and appropriate course of treatment. The assessment was denied. The applicant learned of the denial through HCAI. The applicant submitted that by failing to provide him with a denial letter and/or reasons for denial, the respondent has failed to comply with s.38(8) of the Schedule.
48The respondent submitted that the assessment plan was denied because, like the claim for physiotherapy, the claim for orthopaedic assessment was delivered to the wrong insurer, RBC and to the wrong address. While Complete Rehab has been advised of this error, to date it has not rectified its error.
49The respondent also submitted that this is not an incurred expense has the assessment has not been conducted. Alternatively, if it has, a copy of that report has not been provided to the respondent.
50For the reasons given above with respect to the physiotherapy treatment, I find that the plan for orthopaedic assessment was delivered incorrectly to RBC and not to Aviva. As such, I must dismiss the applicant’s claim for the orthopaedic assessment because it is deemed not to have been received by the respondent.
Issue 5: Is the applicant entitled to interest on the overdue payment of benefits?
51I find that the applicant is entitled to the interest on the cost for a psychological assessment only.
ORDER
52I find that the applicant is entitled to the following benefit claimed and the interest on the overdue payment of the benefit:
i. the cost of an assessment in the amount of $2,460.00 for a psychological assessment recommended by Complete Rehab submitted on February 9, 2016 and denied on March 14, 2016.
53I find the applicant is not entitled to the following benefits claimed and no interest is payable on these benefits:
i. an income replacement benefit for $400.00 per week from April 11, 2017 to November 20, 2017 submitted November 28, 2015 and denied August 17, 2016;
ii. a medical benefit in the amount of $2,173.87 for physiotherapy recommended by Complete Rehab submitted on August 11, 2016, and denied on August 22, 2016; and
iii. the cost of an assessment in the amount of $2,460.00 for an orthopaedic assessment recommended by Complete Rehab submitted on August 10, 2016 and denied on August 22, 2016.
Released: June 28, 2018
___________________________
Avvy Go, Adjudicator
Footnotes
- O. Reg. 34/10.
- Motor Vehicle Collision Report dated November 28, 2015
- Motor Vehicle Collision Report, supra, note 2